Mr Loophole in the Dock?

There’s a fascinating transcript of a renewed application for judicial review in relation to a ‘Mr Loophole’ case (R (Zafar Ali) v Mid Sussex Magistrates’ Court). Given the sensitivities of the topic, I think it may be wiser to keep my comments to a minimum and allow readers to read the transcript on the rather excellent Crimeline (Hat-tip Andrew Keogh).  It has also gained some newspaper attention in the Daily Express (‘Top Judge Criticises Mr. Loophole’).  It’s interesting for a number of reasons.

  1. It shows the policing of adversarial zeal by the High Court.  Getting clients off on technicalities is not something of which the courts have approved for some time.
  2. It might be seen as an indication of how the division of labour between solicitor and advocate can lead to problems (the advocate in this case struggles heroically with a hostile judge and an absence of instructions on key points which a person with conduct of the file would ordinarily have).
  3. It’s about a love to hate figure, Nick Freeman (Mr Loophole), who from his statement to the Express is either training as a diplomat or is unperturbed by the criticisms levelled at him. “Whilst I fully respect the comments of the High Court in relation to this case I maintain that clients demand and expect that their lawyer will fight robustly on their behalf. That is what I do and will continue to do within the legal boundaries”

Given that the Legal Ombudsman’s policy of providing information on the outcomes of complaints has been criticised as naming and shaming , it is also a timely reminder that judges can name and shame lawyers if they choose and without, necessarily, having all the facts before them.  There are some important follow-up points which arise from this.

One is where this transcript came from.  Andrew Keogh of Crimeline has pointed out that it is rare for such arguments to be transcribed, “so someone wanted it out there”.  So the question is who?  And why?

A second point is how serious allegations about lawyer misconduct are dealt with.  One could debate the merits of the naming and shaming approach both generally and with regard to the particular circumstances of this case.  There seem to be natural justice concerns raised by allegations being put the accused when he has no proper opportunity to answer.

A third point, given the seriousness of the allegations, it is to be hoped that the matter was referred to the relevant regulator.  If the court is keen, “in its overall supervisory jurisdiction of the lower courts, [to see sharp practice] is stamped out” one would expect that to be done as a bare minimum. Has it been referred?

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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4 Responses to Mr Loophole in the Dock?

  1. Coventry Man says:

    Interesting, and we will have to see what develops.

    Incidentally, I was very impressed by the way in which the counsel continued fighting his corner throughout the hearing, despite the hostility of the bench.

  2. John Flood says:

    Rather than naming and shaming and putting Mr Loophole on the naughty step, I suspect the judgment will have the opposite effect of making him more popular. He’s going to come across as someone who doesn’t give up as his Express comment makes clear. Are clients going to dismiss him because he’s too zealous on their behalf? Unlikely.

    In fact, I bet this will be viewed as “good publicity”. Mr Loophole is there for you while the barrister comes across as a bit wimpish, regardless of lack of instructions or whatever. It is quite possible that people might see this as judges being out of touch or opposed to folks driving their Porsches at 117mph.

    Who is more popular–Thomas the judge or Clarkson the man of the people (sic)?

  3. Pingback: One rule for the some? Double standards on lawyer tactics | Lawyer Watch

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