A Swansong of Guidance

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In his final Court of Appeal judgment as Lord Chief Justice, Lord Judge gave significant guidance to counsel on how to conduct a criminal trial. David Wurtzel explains

At the very moment that the Operation Chalice trial was taking place in Stafford, over in Manchester another trial, equally worrying in terms of advocacy, was underway. R v Farooqi and others [2013] EWCA Crim 1649 concerned a trial of four men charged on a 10-count indictment alleging terrorism and soliciting to murder.

 


This was not about vulnerable witnesses. The two witnesses in question were under-cover police officers and no doubt well able to cope with being challenged. Their cross-examination over 14 days was nevertheless inappropriate. Appellant’s counsel in the Court of Appeal described it as “prolix, extensive and irrelevant and on occasions, offensive”. The judge felt it would have been counter-productive for him to intervene. It was submitted on behalf of Mr Farooqi that he had not been competently represented at trial with the result that his defence was not presented to the jury coherently or at all; legal submissions were misconceived in law and untenable, and leading counsel defied rulings of the court and behaved in a manner which was “unprofessional and provocative”. At least one co-defending counsel agreed, submitting that the trial judge had to “redress the balance” to such an extent that the case against her lay client was prejudiced.

After the closing speech, in which trial counsel likened the judge to a salesman, “that does not mean what he is selling you is worth anything”, there was discussion as to whether the jury should be discharged. “What can I do to prevent exactly the same thing happening again?” asked the judge, “they do not give us red cards”. Instead the trial carried on with the judge dealing with the closing speech in his summing-up in a way which was upheld by the Court of Appeal. They noted that the starting point is that the “overwhelming likelihood is that the appropriate response is for the trial to continue to its conclusion. The derailment of a trial, whether on the basis of deliberate or inadvertent misconduct by counsel, must remain the exception” (para 103).

Lord Judge’s final judgment

The facts of the case provided an opportunity for the outgoing Lord Chief Justice, Lord Judge, in his final judgment to give significant guidance to counsel on how to conduct a criminal trial. In paragraphs 111 to 115 he set out counsel’s duties. The advocate “cannot give evidence or, in the guise of a submission to the jury, make assertions about facts which had not been adduced in evidence”. Where a defendant (as here) does not elect to give evidence, “the advocate cannot supply the evidence that the defendant has chosen to withhold from the jury”.

“The fairness principle operates both ways. The defendant must have a fair trial. It is however equally unfair to an individual witness to postpone criticism of his conduct until closing submissions are made to the jury.” “All this is elementary.” Returning to a theme which he developed in R v B (2010) Lord Judge disapproved of “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”. He criticised the use of “the somewhat dated formulaic use of the word ‘put’” rather than simply asking the witness. The Court had to concede that “even the most experienced judges are beginning to tolerate” this, “perhaps because to interfere might create difficulties for the advocate who has been nurtured in this way of cross-examination”.

“The trial process is not a game.”

“One further aspect of the principle that the trial process is not a game is that the advocate must ... ensure that his professional and lay clients understand that he must abide by  procedural requirements and practice directions and court orders”. One should add here something Lord Judge said in the Kalisher lecture in October 2009: “The client cannot instruct the advocate how to advance or conduct his case. The advocate is not the client’s mouthpiece. When he allows himself to become the mere mouthpiece of those who are instructing him, whether for the prosecution or the defence, he is no longer acting as a professional advocate”.

Finally the Court of Appeal noted the personal attack on the judge and the prosecution and indeed some of co-defending counsel. This was “quite astonishing and far beyond the experience of any member of this court. The comparison drawn between the judge and a dishonest seller of worthless goods was intolerable. The suggestion that some of the counsel for the codefendants whose approach to the trial was different to his own should be regarded as ‘sucking up’ to the judge was reprehensible. This was not fearless advocacy with the advocate necessarily standing firm in the interests of his client in the best traditions of the Bar”. Advocacy of this kind would “rapidly destroy a system for the administration of justice which depends on a sensible [...R]espectful working relationship between the judge and independent minded advocates responsibly fulfilling their complex professional obligations”.

In the event, “Notwithstanding many unfortunate features of this trial the convictions of three of the defendants, and the acquittal of the fourth defendant, followed a fair trial.”

David Wurtzel, Consultant editor of Counsel

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David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.