UPDATE: The barrister, Lawrence McNulty, responds here.
I briefly posted about this case earlier this week and link to some commentary in the blawgosphere. Having had a chance to read the opinion more thorougly, I think that some of our readers might enjoy the case as an exercise in comparative legal ethics. The opinion notes that there was devastating evidence against the accused and that the lawyer therefore launched an all-out attack on the entirety of the prosecution's case. (My reaction, from our dometic point of view: yeah, sounds like a good strategy.) The court notes, "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?" (Again: yeah, sounds like a good defense strategy.) I don't approve of the obviously bad conduct by the trial lawyer, but there were a few times where the opinion struck me as asking the defense counsel to limit his rhetoric to the issues as framed by the prosecution.
Here are some excepts dealing with the behavior of the trial lawyer. In the opinion itself, these are paragraphs 100-116. (Commentary at FreeMovement, Barrister Blogger, Lawyer Watch, Dan Bunting, Lawyer Watch)
In this jurisdiction it is axiomatic that every defendant has an absolute entitlement to a fair trial.
We must begin by emphasising that the conduct of the trial by the judge was impeccable. He remained patient under considerable provocation, and in the public interest he sought to salvage an important lengthy trial from shipwreck. In his directions to the jury, in fairness both to the prosecution and to ensure that justice would be done according to the law the danger that the jury would be misled had to be avoided. We cannot detect any basis for criticising the judge for lack of fairness or balance in his approach to his responsibilities. The essential criticism is that notwithstanding the fairness with which the judge sought to discharge them, the misconduct of counsel and his deliberate and repeated challenges to the judge's authority could not be addressed and dealt with without compromising the fairness of the trial. The only answer to the problem created by Mr McNulty was the discharge of the jury, and the only answer to the resulting unfairness of the continuing of the trial is to quash the convictions.
We are not here contemplating with the wisdom of hindsight the possible alternative ways in which, following conviction, the defence might have been differently conducted. A variety of different formulations can be found in the authorities, and the catalogue of discouraging adjectives which may apply in the formulation of any relevant test for such cases is probably not yet closed. For present purposes we have asked the question in relation to each defendant whether the misconduct and the alleged incompetence of Mr McNulty could sensibly be addressed by judicial directions in the summing up, and if they could, were they in fact addressed in such a way that the integrity of the trial process was maintained.
When issues like this arise, the starting point however, and this requires emphasis, 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. The judge is vested not only with authority over the conduct of the trial, but with the means, through careful and unequivocal directions to ensure that the jury, with its own interest in the fairness of the trial process, understands the criticisms properly made by the judge for which counsel is responsible, and does not, unless directed to do so, visit them on either his client, or any of the remaining defendants.
It is a matter of regret that there are ample grounds for criticising the conduct of Mr McNulty at the trial. These have been fully addressed by Mr Bott at the hearing of the appeal, and, as we have narrated, he, in accordance with the rules which require counsel to act fearlessly on behalf of his client, has not minced the language of criticism.
We must therefore return to the basic question. The starting point is that the record of what Farooqi said in conversations with the undercover police officers was not and could not be disputed. The jury knew exactly what was said to and by him. What he said formed the basis for a very powerful case that he was guilty of the offences with which he was charged. He defence was that whatever he may have said, the necessary intention to prove guilt was absent.
The difficulty which faced Farooqi's legal advisors is obvious. Although some fairly peripheral points of possible relevance to intent could be made on the basis of isolated passages from the recorded conversations, the defence was fixed with what was revealed by the conversations as a whole. 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 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.
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.
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. 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.
For the purposes of these appeals we shall highlight some of the further rules which appear to have been significantly infringed.
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. That is inconsistent with the proper function of an advocate. The importance of the rule is particularly stark whenever the defendant elects not to give evidence in his own defence. Farooqi failed to do so, and we shall shortly address the complaint against Mr McNulty's competence arising from this decision. Whatever the circumstances, the advocate cannot supply the evidence that the defendant has chosen to withhold from the jury. Self-evidently his function is entirely distinct from that of a witness. When the advocate confines himself to commenting on or inviting the jury to draw inferences from aspects of the evidence which has been given, this principle is not infringed. But as we have demonstrated in the narrative of the facts, Mr McNulty went much further.
Mr McNulty's critical comments about prosecution witnesses were advanced without the witness (or the prosecution) having been given a fair opportunity to address and answer the criticism. 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, not least because if given the opportunity, the witness whose behaviour is impugned may have a complete or partial answer to the criticism. All this is elementary.
We do not suggest that the principle of fairness to the witness requires the somewhat dated formulaic use of the word "put" as integral to the process. Assuming that there is material to justify the allegation, "Were you driving at 120 mph?" is more effective than, "I put it you, that you were driving at 120 mph?" 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.
One further aspect of the principle that the trial process is not a game is that the advocate must abide and ensure that his professional and lay clients understand that he must abide by procedural requirements and practice directions and court orders. The objective is to reduce delay and inefficiency and enhance the prospect that justice will be done. Ambush defence or arguments are prohibited.
In his closing submissions to the jury Mr McNulty made a personal attack on the judge, and the prosecution, and indeed some of his colleagues acting for other defendants which 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 co-defendants whose approach to the trial was different to his own should be regarded as "sucking-up" to the judge was reprehensible. It is quite clear from a study of the transcripts available to us that each of the other counsel was acting within and in accordance with the rules of professional conduct which govern the exercise by each advocate of his or her professional responsibilities. For completeness, we simply add that the attack on the prosecution was equally unjustified. 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 the kind employed by Mr McNulty would rapidly destroy a system for the administration of justice which depends on a sensible, as we have emphasised, respectful working relationship between the judge and independent minded advocates responsibly fulfilling their complex professional obligations. 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.
It gives us no satisfaction to provide this brief indication of the areas of serious concern about the professional conduct of Mr McNulty. We therefore return to the question: how was the judge to address the consequent problems? As the judge recognised it was open to him to discharge the jury and order a new trial, a decision involving huge inconvenience to everyone else involved in the case, and substantial public expense, and in which it is worth noting, as the judge did, it would have been open to Farooqi to require that Mr McNulty should continue to act for him. It was also open to the judge to discharge the jury from giving verdicts on one or more of the defendants, but in practical terms, quite apart from wasted time and expenditure, these allegations, and the evidence to sustain them postulated a joint trial of all the defendants. The better alternative, notwithstanding the problems created by Mr McNulty was to continue the trial. Provided the judge was satisfied that the issues and evidence could be summed up to the jury in a way which would correct the errors for which Mr McNulty was responsible, while simultaneously ensuring that the trial of the defendants would not be prejudiced, the trial could sensibly continue to its normal conclusion. That is what the judge decided, leaving open the further safeguard that if, at the end of his newly refashioned summing up he was not satisfied of the wisdom of his decision to continue the trial, it remained open to him to discharge the jury.