17 September 2012 | By Sam Chadderton
28 January 2013
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28 January 2013
Nobody fights harder in tough civil action cases than Jocelyn Cockburn, a trait that saw her crowned The Lawyer’s Partner of the Year 2012
Sat on a pile of coats and straining to see out of the windscreen, a young Jocelyn Cockburn used to drive her dad’s tractor around the family farm.
At six years old she had an operation to remove a tumour on her spine, resulting in a condition that meant she grew up a foot shorter than her peers. Only later in life did Cockburn acknowledge she had a disability, but by that time a fighter, a battler, had been forged.
The spirit of the underdog is what Cockburn takes with her into all of her cases as a partner with Hodge Jones & Allen (HJA), and what saw her crowned as The Lawyer’s Partner of the Year 2012.
She says you have to “stake your own claim” to be taken seriously and that her passion in life – her “instinct” – is to give a voice to people who live with such unfairness on a daily basis, but feel they do not have the tools to change it.
“The state is a nameless, faceless big beast and if it is acting against your interests it doesn’t matter – there’s nothing that can stop it,” says Cockburn. “It’s like a steamroller.”
Cockburn is a fearless lawyer, galvanised by adversity and at ease when the odds are stacked against her.
She has risen in prominence with some of the highest profile cases of this generation – acting for Neville Lawrence, father of murdered teenager Stephen, the family of victimised Fiona Pilkington who killed herself and her disabled daughter, and fighting for soldiers she claims are sent to war with inadequate equipment.
“I feel passionately for the person without a voice – the underdog,” says Cockburn. “It’s such an instinct it’s nothing to do with the law– it’s injustice as I see it. Obviously, there are two sides to every story, but all my cases I feel passionately about – I wouldn’t be able to be lawyer who can argue black is white.”
In 2004 the trajectory of Cockburn’s career – and life – was about to change.
Winding path to justice
Just days after joining HJA a lawyer at the firm called Jacqui Joseph introduced Cockburn to a grieving father called Neville Lawrence.
“It was a very lucky day for me,” says Cockburn.
Having lost his son Stephen in a racially motivated murder a decade earlier, Lawrence was looking for help in challenging his latest setback, a 2004 CPS announcement that there was insufficient evidence to prosecute anyone for the crime, following yet another review.
Cockburn explains that what she argued was not that the CPS was wrong in claiming there was no evidence, but that it had not provided Lawrence with sufficient evidence to satisfy him that no stone had been left unturned.
This novel point of law meant two to three years of further negotiations until the police agreed to “reinvigorate” the case, claiming it had never been closed.
The “fantastic” Doughty Street Chambers’ Heather Williams QC was brought on board and Cockburn says the determination by Lawrence helped the lawyers to battle through “legal pathways that were not necessarily clear”.
She describes the infamous Daily Mail ‘GUILTY… sue us’ headline, guided by the advice of senior editorial lawyer Eddie Young, as “brave and inspired”, but says it also raised questions over fair trials while press interest in general had the legal team holding their breath for years.
But those pathways eventually led, in November 2011, to the start of one of the most eagerly anticipated murder trials in legal history.
Cockburn describes it as a “privilege” and an “amazing experience” to have been at court with Lawrence, yet “absolutely terrifying” at the same time. She was not involved in the court proceedings as she is not a criminal specialist, but she sat through much of the evidence and felt the weight of a decision that could only go “100 per cent one way or the other”.
Two men were found guilty of murder on 3 January 2012.
“We had been hoping for the verdict before the new year,” recalls Cockburn. “Our main fear for five years had been information leaking to the press that would scupper the investigation, so we were absolutely vigilant. There were all sorts of news reports and journalists ringing Neville and trying to get information from me.
“We were terrified about going away for the festive period, that something would happen to make the trial not go ahead. By 3 January we were all pretty much on our knees, but the verdict came and it meant so much. There was an amazing outpouring of relief.”
The underdog barks
Cockburn is still in touch with Lawrence, who continues to pursue the case with the kind of unrelenting vigour he shares with his lawyer.
She gets stopped in the street by people thanking her for the outcome, and has to bashfully explain that she was not running the prosecution.
“I find that difficult,” she says. “I can’t take any credit for the fantastic result at trial and I’m always anxious to get that across. My skills during the trial were less legal and more in the field of PR.”
But would it have even got that far if it wasn’t for the underdog being given his voice?
If the Lawrence case almost walked through the door into her lap, now, Cockburn wistfully concedes, she has to pick and choose her clients. You sense she would love to run with every single one.
“You can [pick and choose cases] as a civil liberties lawyer because there are millions of people needing help and not that many doing the work,” she says. “Quite often they’re not the cases that seem to have an obvious remedy – it’s just a feeling they are unfair. The great thing about human rights is that it’s about common sense, what we all know and feel – or should do. If it doesn’t feel right, it probably isn’t.
“I have to say, in some of my cases – for example about whether soldiers have human rights when they’re deployed abroad on active service – what I have found really staggering sitting in the UK Supreme Court is that you have nine of the best legal brains in the country, plus all the lawyers who are at the top, then you’ve got my client [Catherine Smith, mother of Private Jason Smith who died of heatsrtoke in Iraq] saying – it’s common sense, they’re British soldiers, we send them out there, they’re in our jurisdiction, I don’t understand what the argument is about.
“I totally agree. We spent three days arguing about obscure cases in Cyprus and Turkey and at the end of it they reached a decision that ran contrary to common sense. It all seems a bit mad.”
You can hear the passion bubbling up as Cockburn recounts the arguments in the case.
“The decision was that when soldiers step off-base, they’re in some sort of jurisdictional no-man’s land,” she says. “What if they’re half on and half off? God knows what the situation is. I still feel that was really wrong.”
That central issue was tested again in Strasbourg in Al-Skeini & Ors v the UK in a case relating to UK jurisdiction over Iraqi prisoners and those killed or injured by British troops in Iraq. Cockburn says there now exists an “anomolous situation” that needs to be resolved.
On the horizon for Cockburn is the so-called ‘Snatch Land Rover case’, whereby soldiers have died in allegedly poorly armoured vehicles off-base. The Court of Appeal is set to hand down judgment in the case, in which Cockburn represents the families of victims.
“So the question arises again…” Cockburn leaves the significance of the decision hanging in the air.
It will also be a test case on combat immunity (the extent to which the Ministry of Justice (MoJ) owes a duty of care to soldiers in combat). The counterpunch to Cockburn’s quest is – how can it be possible to protect people on the battlefield where, by definition, people are killed? Again, posing the question has the effect of a poking the embers of a smouldering fire.
“I’ve never understood that argument. If they’re likely to be killed it puts the onus on you even more to take reasonable steps to protect them,” says Cockburn. “If you’re telling a child to cross the road you don’t say – well, they may get killed so there’s no point teaching them the Green Cross Code.
“At the moment there is no legal imperative for the Ministry of Defence (MoD) to consider the safety of its soldiers in combat. Obviously, let’s hope they do, but when they’re thinking about deploying to war they should be legally required to think – there are military objectives, but protecting our soldiers also has to be a serious consideration’. Because of what happened in Iraq and Afghanistan there’s a lot of concern about how soldiers were equipped.”
“There’s a lot of concern about lawyers entering the battlefield,” she accepts. “But I think the fundamental question is whether soldiers have human rights. Of course they do. So then it’s about what is reasonable in the circumstances, and this will take account of all the exigencies of war. It’s not that the MoD must save a soldier’s life, but that they should take reasonable steps to protect them.”
Focus on fairness
The stones Cockburn is throwing into the murky depths of the legality of war cause ripples far and wide, but she will not lose sight of what she is fighting for. This is not to change the face of war, but something “much more modest”, she says. “My clients simply want to know what can be done to stop other families going through the pain they have experienced. I don’t feel intimidated [by opposing the state], but I don’t want to seem like I’m on some crusade.
“You’ve always got to be acutely aware of your clients’ interests and if you start behaving unreasonably then you undermine your client’s argument. You’ve got to understand the argument from both sides, but pursue yours with vigour. Some of my clients are remarkable people. I’m sure that if they wanted they could be lawyers. They felt passionately about something and pursued it – that’s what I do too.”
If it is not a crusade against the Government, Cockburn certainly holds the state’s decisions and proposals to account.
Chief among her concerns is the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo), that has recently been enacted and, at its base, means fewer people will have access to financial support when seeking legal action.
Bound up in concerns about ‘compensation culture’ are changes to conditional fee arrangements (CFAs), whereby the premium of after-the-event insurance will be deducted from damages, not paid by the losing defendant. That means for complex, legally untested high-risk cases of the kind Cockburn specialises in, a successful claimant who receives a relatively small damages payout could still have to pay a huge insurance premium that leaves them bankrupt.
Cockburn argues that the most important cases are often about a novel point of law that needs to be ruled on by the highest court. She fears the act could have a chilling effect on such claims.
“Clients aren’t doing it for damages,” she says. “It’s about the principle and usually, if somebody has lost somebody or feels strongly about an issue, of course they would like compensation, but that isn’t the primary motive. At the moment it is hard to know how to run cases and the Government has been, it seems, a bit disingenuous, because it’s not in their interests to encourage claims against the state. Human rights cases are all against public authorities. All these cases are at risk
“We have to decide as a society how important we think it is, constitutionally, to hold the state to account. Unfortunately, at the moment, it’s not looking easy.”
This is not an admission of resignation, more a line drawn in the sand where she will fight.
Cockburn points to one of her other biggest cases, that of Fiona Pilkington who killed herself and her disabled daughter Francesca following prolonged victimisation at the hands of anti-social gangs. That instruction was on behalf of the family against Leicestershire Police for not taking action to protect them, despite numerous calls for help.
Tragically, Fiona Pilkington took her and her disabled daughter’s lives by setting the family car alight. The case was brought under a CFA on the old rule and settled. However, had it arisen after the introduction of Laspo, Cockburn says she would have advised the family not to bring it because of the risk of the insurance premium outstripping damages.
“I’d have to advise them that they could lose their home, even if they won,” explains Cockburn. “It’s complex because [the Pilkington case] is a claim against the police, but they were not the ones causing the problem in the first place, nor did they kill Fiona and her daughter. However, there is an important principle about the extent to which we protect vulnerable people in our society. That case did settle, but had it not, it would have reached the Supreme Court because it was untested law.
“It’s going to have a chilling effect on civil liberties unless something is done between now and April. All they need to do is add civil liberties cases to the QOCS [qualified one way costs shifting] regime or disapply clause 45 of Laspo – recovery of insurance premium – in claims brought against the state.”
Also under attack from the Coalition is the Human Rights Act, a cornerstone in Cockburn’s practice and something she is dogged in her defence of.
She feels the Government is “hostile” towards Strasbourg and that “damaging its name” is a “catastrophe”. She is “not sure where it will end” and believes that lawyers also have a part to play in ensuring legislation remains in place to protect people and stop the state acting without check.
“The Human Rights Act deals with the most fundamental issues about equality and recognising the right to life, prohibition of torture and things that are major concerns around the world,” Cockburn insists. “If you start scrutinising everything a court does, of course there are going to be decisions you don’t agree with it, but you can’t undermine the whole court system. It seems irresponsible for the government to be doing that.
“From a lawyer’s point of view, I think we also have a responsibility in the way we argue cases not to use human rights law opportunistically. We have an obligation to the concept of human rights that might mean it should be treated a little differently.”
Cockburn gets inundated with requests from families who are suffering in similar ways to Fiona Pilkington and there is a sense of anguish that she cannot take on every complaint.
“I do feel some moral responsibility, through having a disability myself, to do my bit,” she explains. “It has made me a stronger person, certainly a stronger lawyer. It makes me think there are hundreds of thousands of people out there who must have so much more to give, but people can’t get over the fact they are not like everyone else.
“Once you are given confidence in yourself a lot can be achieved. You might find some of the most valuable people in society actually look like they are hugely disadvantaged on the face of it. I’m motivated by the fact that everybody is equal. In my police work if you’re male and black and young, you’ve got a major problem in being taken seriously as a worthwhile member of society. That has such an impact on behaviour as well as opportunity. If you keep telling someone they’re rubbish, if you’re not careful that’s what they’ll become.”
If anyone told a young Cockburn she was not going to make it as a lawyer, you feel she would not have listened anyway, but she is generous with her praise for the juniors at HJA.
“It is not me on my own,” she says. “We’ve got an amazing team here, particularly the junior lawyers who are so energetic and brilliant, and we expect so much more of them than anyone every expected of me when I was a trainee. They’ve got a full CV and it’s a crying shame there’s so little opportunity for young people in society, but in civil liberties – as in other areas of legal aid law – firms are belt-tightening.
“There are some incredibly bright young people wanting to do our type of work and it’s a shame we can’t take them all on.”
As it is, Cockburn is an inspiration to the younger lawyers at the firm and, as evidenced by her crowning as Partner of the Year at The Lawyer Awards 2012, beyond too.
Cockburn floats an idea that there could be opportunities for symbiotic relationships between firms, whereby pro bono work of reputational benefit, shared expertise, resources and contacts could be reciprocated with financial support. It is “just a seedling of a thought” says Cockburn, “but I like the idea of law firms working together to a common purpose – and would help counter the image of greedy lawyers always benefitting from other people’s misery”.
Of the Partner of the Year award, she says: “It’s really nice to be recognised. I think this year it’s important for a legal aid lawyer to get recognition among all those commercial types. I’d like to think that, given all the problems we’re going to be facing, we can start working together with corporate firms.”
The drive that put Cockburn behind the wheel of that tractor and that was fuelled in the schools of Ecuador is clearly stronger than ever.
From plough to human right platform
Wind back to that rural childhood in the Scottish borders and Cockburn was more interested in ploughing the fields than in human rights.
“I didn’t have a strong desire to be a lawyer,” she admits. “I was at university doing history, but I was in a quandry because I really wanted to go travelling in South America and was a little bit nervous about doing that on my own.”
As an “easier option” Cockburn got onto a law conversion course, followed by a training contract at small City firm Druces & Attlee (now Druces) around 1994, doing commercial property and private client work.
Cockburn modestly compares her rawness then with the “brilliant” young trainees she sees at HJA and almost apologetically admits it was not for her.
She was ready to leave the law behind and plucked up the courage to embark on her South American adventure after all, spending nine months teaching in Ecuador and some time in Colombia.
Ironically – and without knowing it at the time – by escaping the City and the legal world Cockburn was to discover her true purpose.
“I thought a lot about the direction in which I was heading,” admits Cockburn. “I read John Pilger’s book Heroes out there and met a Catholic missionary doing some amazing work in poor communities.
“As a tourist you tend to trail through the cities. I wish I’d done more. But I did learn about the horrendous poverty of the indigenous population, talked about human rights and came back really fired up. It was that experience that cemented the idea that I didn’t just want to do commercial work, but even at that stage I didn’t really want to be a lawyer and volunteered with Amnesty International instead.”
It was an exciting time for the human rights campaign group, with Britain taking a positive stance on issues and Cockburn having her eyes opened to a different side of the law.
A year later she was on the move again, returning to London to volunteer for the International Campaign to Ban Landmines. Although engaged in a valuable global project she still had the feeling of being a tiny cog in a huge organisation. Cockburn says that playing the long game, spending years brokering deals with governments only to watch a constitution disappear in a burst of conflict, was not her strength.
“You need incredible diplomacy and that’s not my skill,” she accepts, candidly.
Then an “amazing opportunity” working at civil liberties firm Deighton & Guedalla (now Deighton Pierce Glynn) saw Cockburn carrying out research for Jane Deighton as the founder partner led a sexual discrimination case against the then-Lord Chancellor, Lord Irvine, on behalf of a female solicitor. Typically forthright in her summary of the case, Cockburn describes the crux of the case as “the Lord Chancellor hiring his cronies” and recalls the excitement of the achievement.
From there to Christian Khan, the human rights and civil liberties firm founded by Louise Christian and former home to Tooting MP Sadiq Khan, where Cockburn got a taste for taking on the police, public law and discrimination issues.