Severe criticism of style or inadequate defence?

Ekaireb, R v [2015] EWCA Crim 1936 (16 December 2015) has got the press interested for its criticism of a criminal Silk and the suggestion that the Lord Chief Justice has referred him to the BSB for an inappropriate website.

The case for the appellant presented by Mr Orlando Pownall QC was that Mr Wolkind’s incompetence related to the final speech for the defence and fell into two categories:

i) a ‘severe criticism of style’ which itself amounted to incompetent representation in that he:

a) failed to present the defence in an appropriate and focused manner;

b) often resorted to patronising the jury, conducting personal attacks on counsel for the prosecution. He indulged in a number of inappropriate attempts at humour which were bound to alienate the jury;

ii) a failure to confront the matters advanced by the prosecution by displaying (as had been reflected in submissions of no case to answer and in his opening submissions), a reluctance fully to engage with the issues before the jury in stark contrast to the detailed way in which the prosecution had advanced the case.

It appears Mr Wolkind’s website became relevant because his client may have chosen to instruct him having read his website, “topcriminalqc”, but he also had some other forms of recommendation.

There were various allegations that Mr Wolkind did not prepare for trial properly, supported by the evidence of his (then) instructing solicitor and junior counsel. Interestingly, instructing solicitor and Wolkind’s junior had a discussion about firing Wolkind and the junior taking over (Michael Skelley), which Mr Skelley declined on the basis that he was not experienced enough (an interesting question is whether he had concerns about the conduct of the case sufficient to require other action by him).

There is criticism also of Mr Wolkind’s conduct of a submission of no case to answer.  The prosecution provided to the court a detailed 17 page submission of why there was a case to answer. Mr Wolkind provided a page and a half; a document described by the Court of Appeal as “lamentable”:

it was not the submission required to support the argument in a case where the evidence was entirely circumstantial. It was not just an error of judgment, but represented a serious failure on the part of Mr Wolkind. In fact, in determining this appeal nothing turns on this serious failure, since it is now rightly conceded that there was a case to answer, as the judge found.

The opening speech for the defence was described as, “entirely unfocussed” and containing, “unwarranted and unjustifiable specific criticism” of prosecution counsel but nevertheless, “it is not said to be incompetent.”  Then a finely balanced decision was made to call the appellant to give evidence which misfired although not – it seems – because of any failings by Mr Wolkind.  His junior indicated in evidence, however, “that during the cross examination Mr Wolkind, whilst half listening to the evidence, was sending e-mails on other cases.”

There was also criticism of Mr Wolkind’s absence from the judge’s summing up where it appears that points were raised which needed to be dealt with by the defence, but it is his closing speech which appears to have been most important in the context of the case (not least because Mr Wolkind had repeatedly told his junior it was a ‘closing speech case’). Indeed, it appears the trial judge may have been somewhat perplexed by the defence closing:

What we have here is a contrast between a prosecution who put their case on a very detailed analysis of the whole succession of facts. Mr Wolkind has not sought to answer those facts in detail.

The junior, Mr Skelley, was also, “not convinced Mr Wolkind was developing the points that needed to be made” and had drafted points for consideration in the closing speech which it appears were incorporated but not discussed.  The Court of Appeal – with its usual reluctance to overturn decisions based on inadequate representation – did not think the speech so bad that it rendered the conviction unsafe, partly because of the strength of the evidence against the appellant:

We have asked ourselves the question, therefore, whether the speech can be described having reached a level of incompetence that called into question the safety of the conviction or the fairness of the trial. We cannot so describe it. Although it will be for others to consider wider issues, it was a speech that covered the points and it had a structure, however ill-judged the themes and the structure might have been. We accept …that it was ill-judged, patronising and contained inappropriate attempts at humour. It also contained observations about prosecuting counsel which, as Mr Skelley told us, were completely unprofessional; no advocate should have put these observations into a speech…. However it did not reach a level of incompetence that called into question the fairness of the trial or safety of the conviction.

As we have reached that view, it would not be appropriate for us to make more general findings in relation to Mr Wolkind’s lack of preparation and conduct of the case. That must be a matter for the Bar Standards Board to which we direct the matter be referred.

It is thus on this basis that Mr Wolkind is apparently referred to the BSB alongside the observation that in relation to Mr Wolkind’s personal website:

We were surprised at its content and tone. However whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration.

My own –  brief – perusal of the website suggest to me it is a work of tongue in cheek vanity and not-to-my-taste humour which is not a matter which will long detain the professional regulators.

Unless cringeworthy jokes bring the profession into disrepute or the content somehow (under gC57) is inaccurate or likely to mislead. Or, unless a general – and rather unsubtle and relentless – attempt present Mr Wolkind as the “UK’s Top Criminal Barrister” compared to the rest of the bar is to be regarded as, “making comparisons with other persons as these may often be regarded as misleading.”  I doubt it, myself: the comparisons are not specific enough to my mind to warrant sanction, although the appellant did claim to have been mislead by them.

Much more important is the issue of his performance in the court room. It is unfortunate – but perhaps unavoidable – that this is dealt with in the context of an appeal hearing, which both shapes and constrains how the Court of Appeal considers it scrutiny of conduct.

Interestingly, the Court of Appeal also directs (although I doubt it has the power to do so, I am confident the BSB will not overtly resist such direction on this occasion) that the BSB consider the general issue as to the:

terms upon which any barrister, particularly one of Her Majesty’s counsel, is free to engage on other work during the conduct of a case is a matter for the Bar Standards Board, subject to an overriding duty to the court in respect of the case before the court. We therefore direct that general issue be referred to the Bar Standards Board for their consideration.

I look forward to gC666: do not email during court hearings that you should be listening to.

There is also a ruling on criticism of opposing counsel requiring, in effect, that counsel distinguish clearly between criticising the prosecution’s case, and the prosecutors personally:

The conduct of a trial before a jury requires proper and professional conduct by all advocates in speeches to the jury. As any personal criticism of the conduct of an opposing advocate is a matter for the judge, it can form no proper part of an address to a jury. The regrettable departure from proper standards of advocacy by making personal criticisms of advocates of an opposing party in an address to the jury must therefore cease. No court will tolerate its continuance.

Substance before style, one might say.

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