Court of Appeal criticism of advocate extends beyond the man himself

Many of the most interesting questions about lawyers’ ethics focus on the tension between a lawyer’s duty to their client and a lawyer’s obligations to justice. There are hard and soft versions of zealous advocacy which pose different ways of resolving that balance. A particularly interesting question is the extent to which lawyers ought to be bound by or influenced by their client’s instructions and the levels to which they can go to promote the client’s interest.

At one end of the debate is the position that if a particular defence tactic is not clearly prohibited by law or clear rules of professional conduct then that tactic is permitted. It is not for the lawyer to say a doubtful tactic is prohibited, if there is doubt the client gets the benefit of it and that tactic can be attempted. A related idea is that the client is the one who takes moral responsibility for their instructions and a lawyer must simply follow them unless they cannot. Lawyers are then governed not by what they should not do but what they cannot do. This has the added benefit for the lawyer of relieving them of any sense of professional or moral responsibility for their acts as long as they are not clearly prohibited by law or conduct rules. Recent high profile murder and rape trials have featured press criticism of barristers which is rebutted by the argument – in part- that lawyers are just following instructions.

An interesting question is whether the Bar’s professional conduct rules fall into this model; some call it hyper-zeal (to pinch Tim Dare’s phrase). Barristers often speak most passionately about their duties to clients but this front and centre is a subtle reversal of the position under the rules where a barrister’s “overriding duty to the Court” comes first and is expressed as an obligation, “to act with independence in the interests of justice” (Rule 3.02). My instinct is that Rule 303’s well-known exhortations carry more sway; rich as they are with history (Lord Brougham’s defence of Queen Caroline) and a romantic dynamic of the lawyer as self-sacrificing hero:

A barrister: (a) must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person…

Independence is much less rarely emphasised.

Rule 3.02’s duty to the court also emphasises that Barristers, “must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court”. It contains both positive obligations (to act with independence and assist in the administration of justice) and negative one’s (not to mislead). Lawyers are, I would suggest, much more conscious of the negative obligation and the tendency is to keep behaviour that might be classed as misleading defined as narrowly as possible. I say this without implying criticism, because there are good reasons for it; after all good advocates can make bad cases seem like good cases without anyone thinking it disreputable. Equally misleading is not the same as lying. And one must not do it, at least in court.

It is interesting, and relatively rare, to see doubtful tactics given full scrutiny by the Court of Appeal. Even rarer for such scrutiny to come with the twin threats of contempt and professional misconduct that we see in the case of R v Farooqi [2013] EWCA Crim 1649. The judgment is given by outgoing Lord Chief Justice Judge (but all three judges contributed). In a trial on serious, terrorist offences with multiple defendants senior counsel appears to have incurred the wrath of the trial judge, his fellow defence lawyers and his former client. The Attorney General has indicated there are grounds for contempt proceedings against him but has allowed the Bar Standards Board to prosecute him for misconduct instead. The outcome of that process is awaited.

The judges do not hear counsel’s own version of events because he does not give them and so we do not know the whole picture. It is an interesting omission. His client waived privilege, so that was not a bar to his giving evidence. Nevertheless, beyond the reputational harm visited on from the adverse findings he has no particular need to give evidence in the hearings. He may have felt it better to wait for the BSB proceedings, or contempt proceedings; though the Court of Appeal’s findings are – to say the least – unhelpful to him in the disciplinary context. He may feel that the reputational hit of ‘grassing’ on a client might be stronger than the dressing down he gets from the Country’s most senior judge. A worrying thought; but if Mr McNulty wanted to send a signal to clients that he was prepared to fight to the very limits of what was tolerable (and for the Court of Appeal and the trial judge considerably beyond what was tolerable), that signal has well and truly been sent. There may be other explanations. We do not know.

His client was convicted of engaging in conduct in preparation for acts of terrorism; soliciting to murder; and, and dissemination of terrorist publications. He got a life sentence with a 9 year minimum. In the broadest terms the critical evidence against him consisted of taped recordings of conversations between Mr Farooqi and undercover police officers. Mr Faroqi’s defence was that the words recorded were not inaccurate, but that he did not intend them to have the meaning the prosecution said they had. On advice, the court found, Mr Farooqi did not give evidence to support that contention. They also suggested he was damned if he did, and damned if he didn’t.

Element’s of Mr McNulty’s defence which were contentious appear to be as follows:

  • He sought to raise as a defence to the case a suggestion that the police officers had entrapped Mr Farroqi. He did so very late in the case and without forewarning.
  • The process by which such matters could be raised and decided was an abuse application which had to be followed and conducted before or at the start of the trial and was not.
  • The prosecution had no opportunity to lead evidence to rebut the suggestions of entrapment (which the judges found no evidence to support in any event).
  • He then sought to argue a point of law that entrapment could be raised as a defence that was unfounded and hopelessly weak.
  • He persisted in lines of cross-examination designed to establish a misleading position in law (that there was such a defence) in spite of repeated interventions from the judge to try and prevent this being done.
  • His cross-examination was (in the words of the prosecution) “prolix, extensive and sometimes offensive” and without clear purpose for significant periods.
  • The tactics may have been (it is speculation) to try and get the jury discharged in the light of a hopeless case.
  • He used his closing speech to introduce points which had not been introduced in evidence.
  • He used his closing speech to imply bias on the part of the judge and (at least some of) the other barristers.

In broad terms then the allegations are of incompetence, deliberate obfuscation and/or prohibited ambush defences.

Both Mr Farooqi (having changed his lawyers) and his fellow defendants appealed their convictions on the basis that Farooqi was not competently represented at trial; his defence was not presented to the jury coherently or at all; that he should have been called to give evidence; and that what the judge did to correct McNulty’s conduct of the defence created perceived or actual unfairness which would render the jury’s verdict unsafe.

The Judge gave serious consideration to discharging the jury. One of the defence teams applied for that and others were somewhat supportive of that without making applications themselves. Having spent months hearing the case, at vast expense the judge took the view that he should attempt to direct the jury on how to deal with the case; receive a verdict and – if his approach had been unsatisfactory, be corrected on appeal. All of that points very clearly to the potential for significant concern that the jury could not fairly convict but the Court of Appeal – one suspects taking the view that the defences in these cases in the light of the almost wholly undisputed evidence were hopeless – declined appeals on sentence and conviction. They emphasised a key, pragmatic basis for not conceding an appeal:

The derailment of a trial, whether on the basis of deliberate or inadvertent misconduct by counsel, must remain the exception.

Here are some excerpts describing their thinking about the barrister’s conduct:

It appears to us that faced with this problem, and without any justified basis for doing so, Mr McNulty embarked on the forensic strategy of an all-out attack on every aspect of the prosecution case, sometimes at a very late stage in the process, in circumstances which can be described as “ambush” and of confrontation with and disobedience to the judge. The objective of this strategy would have been to seek to distract the attention of the jury from the simple question which they were required to address: what conclusions should properly be drawn from the incontrovertible evidence of these conversations? The only person who could give evidence about his intentions was Farooqi himself, but if he did so and disclaimed the apparent intention revealed by the conversations, the potential for devastating cross-examination was obvious….

The Court then turned to the fundamental question with which this post began:

107. The question was raised whether Mr McNulty discussed his proposed forensic strategy with his client. However, whether he did or not, and even assuming that his client agreed or encouraged it, the client’s “instructions” were irrelevant. The client does not conduct the case: that is the responsibility of the trial advocate. The client’s instructions which bind the advocate and which form the basis for the defence case at trial, are his account of the relevant facts: in short, the instructions are what the client says happened and what he asserts the truth to be. These bind the advocate: he does not invent or suggest a different account of the facts which may provide the client with a better defence.

108. Something of a myth about the meaning of the client’s “instructions” has developed. As we have said, the client does not conduct the case. The advocate is not the client’s mouthpiece, obliged to conduct the case in accordance with whatever the client, or when the advocate is a barrister, the solicitor “instructs” him. In short, the advocate is bound to advance the defendant’s case on the basis that what his client tells him is the truth, but save for well-established principles, like the personal responsibility of the defendant to enter his own plea, and to make his own decision whether to give evidence, and perhaps whether a witness who appears to be able to give relevant admissible evidence favourable to the defendant should or should not be called, the advocate, and the advocate alone remains responsible for the forensic decisions and strategy. That is the foundation for the right to appear as an advocate, with the privileges and responsibilities of advocates and as an advocate, burdened with twin responsibilities, both to the client and to the court.

109. In the trial process the advocate is subject to some elementary rules. They apply whether the advocate in question is a barrister or solicitor, and to the extent that the rules of professional conduct of either profession are not consistent, they should be made so. In the forensic process the decision and judgment of this court bind the professions, and if there is a difference, the rules must conform with the decisions of the court. By way of emphasis, in the course of any trial, like everyone else, the advocate is ultimately bound to abide by the rulings of the court. If a remedy is needed, the rulings are open to criticism in this court, and if they are wrong, their impact on the trial and the safety of any conviction can be fully examined. Although the judge is ultimately responsible for the conduct of the proceedings, the judge personally, and the administration of justice as a whole, are advantaged by the presence, assistance and professionalism of high quality advocates on both sides.

Clients do not, under this view, direct – or even influence? – tactics or strategy (save in relation to their own plea, evidence and perhaps the calling of other witnesses) other than through the story they tell about the alleged offences.

There is an interesting broadening of the criticism beyond Mr McNulty in para. 108 which suggests anxieties about broader practice in the minds of the three Court of Appeal judges. They emphasise the twin duties of barristers to court and client and the need to form an independent judgment on what the most appropriate strategy is for which, by implication, they take responsibility. They go on to express thoughts which suggest a broader fear that trust between judge and advocate will break down if such responsibility is not taken:

Neither the judge nor the administration of justice is advantaged if the advocates are pusillanimous. Professional integrity, if nothing else, sometimes requires submissions to be made to the judge that he is mistaken, or even, as sometimes occurs, that he is departing from contemporary standards of fairness. When difficult submissions of this kind have to be made, the advocate is simultaneously performing his responsibilities to his client and to the administration of justice. The judge, too, must respect the reality that a very wide discretion is vested in the judgment of the advocate about how best to conduct the trial, recognising that different advocates will conduct their cases in different ways, and that the advocate will be party to confidential instructions from his client from which the judge must be excluded. In general terms, the administration of criminal justice is best served when the relationship between the judge and the advocates on all sides is marked by mutual respect, each of them fully attuned to their respective responsibilities. This indeed is at the heart of our forensic processes.

There are other interesting elements to the judgment. Again there is a hint at a broader problem with advocate techniques, where barristers signal opinion through cross examination:

113. ….What ought to be avoided is the increasing modern habit of assertion, (often in tendentious terms or incorporating comment), which is not true cross-examination. This is unfair to the witness and blurs the line from a jury’s perspective between evidence from the witness and inadmissible comment from the advocate. We withhold criticism of Mr McNulty on this particular aspect of his cross-examination because he was following a developing habit of practice which even the most experienced judges are beginning to tolerate, perhaps because to interfere might create difficulties for the advocate who has been nurtured in this way of cross-examination. Nevertheless we deprecate the increasing habit of comment or assertion whether in examination in chief, but more particularly in cross-examination. The place for comment or assertion, provided a proper foundation has been laid or fairly arises from the evidence, is during closing submissions to the jury.

This last criticism is not levelled at Mr McNulty. The judges recognise his practice here is but part of a broader problem. They leave no doubt, however, about their view of his practices in this case:

It is difficult to avoid reflecting that this behaviour, particularly during the later stages of the trial, had as its ultimate purpose the derailment of the trial by the creation of pressure on the judge to discharge the jury before they retired to consider their verdicts or to procure favourable verdicts by illegitimate means.

One suspects he will not do it again.

______

This has been a long blog but I encourage readers to look at Simon Myerson QC’s comment on it as well as Dan Bunting’s blog and Simon’s comments there.

****Mr McNulty has issued a statement defending his position here:  http://www.legalcheek.com/2013/10/courtroom-anarchy-barrister-who-was-slammed-by-lord-judge-hits-back-with-disputed-facts-claim/

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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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13 Responses to Court of Appeal criticism of advocate extends beyond the man himself

  1. I have left this comment on Dan Bunting’s blog as well. I think the Court got this one right. I also agree with your analysis. Personally, I make it a practice to discuss strategic matters with the client, particularly if – as sometimes happens – a suggestion is to be made to the jury that a Judge or witness has behaved unfairly. I do so in order that a client is not disadvantaged by my decision by not being able to dissent from it, and in order to tell the Judge (if asked) that I am acting on instructions.

    The difficulty is that there seems to have been no ground of appeal that McNulty was not acting on instructions. It seems to have been the defence that this was entrapment of someone who would not otherwise have actively promoted terrorism. Farooqi did not give evidence, so there was no testing of that proposition via his own words.

    Was he properly advised about that? Apparently, yes. He signed the appropriate documents and, more importantly, he made an obvious tactical decision in the face of overwhelming evidence that he was an active jihadi recruiter.

    What was then done to deal with the obvious problem of a man who admitted saying the words, but whose defence was that he lacked intent? The answer appears to be to try and pick a fight with the Judge and persuade the jury that the defendant was a victim. The Judge – too canny by about 20 times to fall for that – treated it all with politeness and then corrected the impressions. He did so in a way that expressly told the jury to conclude that this was a frolic of counsel’s own.

    In fact, as those of us with experience of long and fraught criminal trials know, that is possible but unlikely. Farooqi therefore, rightly, had the benefit of the doubt.

    In the Court of Appeal the question is whether the subsequent conviction is safe. On its face, it is. The Court held that the jury was properly directed and that the tactic of which complaint was made – namely that of accusing the Prosecution and the Judge of being a conspiracy to convict an innocent man – was not to be attributed to the accused. Did the jury disregard that warning? There is nothing in the Judgment which would support that conclusion.

    That, then, leaves the question of whether there was – in fact – another defence which, but for the behaviour of McNulty, would have been put and which would have made the conviction unsafe. It is at that point that Farooqi’s failure to provide any evidence sinks his appeal. The Court was being asked to speculate that the conviction was unsafe: it was not being addressed on evidence. No appellant can expect to advance that argument and then sit back and say the thing speaks for itself. In this appeal matters went even further: McNulty’s silence may be attributed to self-preservation, but the Judgment makes clear that none of the legal team assisted Farooqi. The Court would, I think, have been justified in inferring that this was a decision in which everyone’s silence reflected personal responsibility. They did not: they relied on the one solicitor to give evidence, who made it clear that the decisions about giving evidence were uncontroversial.

    The conviction is therefore safe. Whether this was the tail wagging the dog and a complicit legal team assisting a client to try and wreck a trial may never be known. The Court concluded – safely – that it was the other way round and that the client was given appropriate advice, after which McNulty decided to seek confrontation in the hope of creating sympathy. That did not work, but that is not a basis for appeal. If Farooqi had been disadvantaged to the extent of the conviction being unsafe because some alternative defence was not run, he had every opportunity to say so.

    As for Judge’s dismissing counsel, I am surprised that anyone would consider this reasonable. In a civil case it might – just might – be ok for a Judge to say that justice is not being done. Even then it is difficult to reconcile a red card with Article 6. In a criminal case it is axiomatic that the Judge – the representative of the system – should not tell an accused who can and cannot represent him. The very process of reasoning involved in such a decision invites the Judge to determine matters of fact (such as the prospects of conviction), which Judges are expressly enjoined not to do.

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  3. Graham Reid says:

    What an interesting judgment! There is much to be considered here…

    The observation “In the forensic process the decision and judgment of this court bind the professions, and if there is a difference, the rules must conform with the decisions of the court” will support those who argue that legal professional conduct rules are subordinate to the common law.

    One can expect debate concerning the above sound-bite, e.g.over the definition of the “forensic process”, and whether the words should be treated as confined to the intricacies of criminal cases.

    As for the references to forensic decision-making and the “myth” of client instructions, that is perhaps the most interesting part.

    The “advocate alone remains responsible for the forensic decisions and strategy” does indeed conjure up a heroic image, but it seems out of kilter with experience of the less vivid world of civil cases. I can imagine this being deployed in the defence of allegedly negligent advocates: “One should not judge too nicely the split-second decisions that an advocate must make” (I made that one up, unless it is an echo of some forgotten judgment, but the point remains…).

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  8. Robert says:

    On the subject of influencing the outcome of court cases. Can you offer me any advice on this recent situation in a civil case for harassment. I was a LIP bringing a valid case of harassment against a defendant. At the final hearing to decide if the matter went to a civil trial, the defendants solicitor, a partner in a Legal 500 company made an application to have my case struck out on the grounds that I had abused court process. The judge granted the application and did strike out my case, leaving me with a bill for the defendants legal costs of almost seventy thousand pounds. I appealed and the appeal was refused, so I appealed again and the matter went to an oral appeal hearing. In the order prior to the appeal, the high court judge ordered me to obtain a copy of the transcript of the last hearing. As a LIP on a fixed income of only pension credit I was fully entitle to obtain the transcript out of public funds and applied for this. The final appeal hearing was heard and the judge still refused me permission to appeal even though I had proven to the court that the defendant when it had previously submitted its response to my allegations consisting of two sworn and signed statements of truth (perjury declarations), had perjured itself over ten times, and I had the evidence to prove this, he also refused my appeal about the judgement for the defendants legal costs.

    However, after that appeals hearing in the order from the judge, he referred to a letter that had been sent for his attention by the defendants solicitor, a letter I had not been aware of at all. I requested a copy and this was ignored for two months when I again insisted it was my right to see this letter. Finally I was sent a copy. In that letter, the defendants solicitor makes it quite clear to the court “We appreciate that it is very unusual for the defendants representatives to write to the court in this way. However, we would urge the court to not permit the claimant to obtain the transcript at public expense, and/or refuse permission to appeal”

    These are a company of solicitors that are very very experienced in Law, and by their own admission in their letter state writing it was “very unusual”. So, my question is, there can be not doubt that these solicitors sought to influence the decision making of the judge, and therefore was this a contempt of court ? If so, is there any remedy for me. Thanks.

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