What’s a Judge to do? Thoughts on Farooqi

 

Introduction

The last judgement given by Lord Judge, the (now former) Lord Chief Justice, was given on 30th September 2013 in the case of Farooqi & Others [2013] EWCA Crim 1649. It was a typically forthright judgment and is worth a read in full.

In short, despite giving Mr Farooqi’s previous advocate a right kicking, the Court of Appeal found the conviction to be safe*.

Any advocate (or potential advocate) would find the discussion on the professional responsibilities at paras 107-115 a useful one.

The Court of Appeal’s judgment

The actual facts don’t matter too much (in theory). This was a serious terrorism case – Mr Farooqi was sentenced to life imprisonment with a nine year minimum for three counts of soliciting to murder, one of engaging in conduct on preparation for acts of terrorism and one of disseminating terrorist publications. In brief, it was alleged that Mr Farooqi was the ‘charismatic leader of a small group of Islamic extremists intent on identifying, converting and radicalising vulnerable young men for the cause of Jihad’.

The case against him was founded largely on a 12 month surveillance operation conducted by two undercover police officers.  The various conversations that they had with Mr Farooqi were recorded and largely agreed. The issue at the trial was the intent of Mr Farooqi – he denied any intention to radicalise the undercover officers.

The Court of Appeal decided that the trial, in the end, was a fair one and the directions given to the jury was sufficient to ‘cure’ the behaviour of Mr McNulty “[the defence was] fully and fairly explained to the jury and left for their decision, and the necessary process of correction was handled so as to ensure that the normal processes by which the jury addressed the evidence and reached their eventual conclusion was not undermined” (para 119). The decision not to discharge the jury was one that was correct in all the circumstances of the case.

A separate complaint, as to whether Mr Farooqi was advised properly as to giving evidence, was dismissed. Having examined all the circumstances (and looking at the fact that Mr Farooqi was not putting forward an affidavit to say he was not properly advised) the Court concluded (para 142) “There is no credible material to support the proposition that Farooqi did not make an informed decision or that he was improperly advised”.

In relation to that last point, I would just say in passing that if confidence in a lawyer’s professionalism has gone, then should that nor raise the presumption that the advice was wrong? Even if Mr Farooqi made a free and informed choice, what weight should we place on that, given that it was a choice informed by a lawyer who was to be so heavily criticised in relation to his other tactical decisions?

When does an advocate make a conviction unsafe?

The criticisms of Mr McNulty are unprecedented. The judgment starts by saying the appeal arises from the “flagrant misconduct and alleged professional incompetence by one of the advocates at trial”. There were various criticisms levelled by the Court and I won’t go through them. It’s worth noting what was said at para 98 “following the trial, the Attorney- General … concluded there was sufficient evidence to bring proceedings for contempt against Mr McNulty in relation to his conduct at trial, but that the public interest was best served by the Bar Standards Board formally investigating the allegations of professional misconduct … this complaint awaits resolution”. There is no dissent from the Court of Appeal from this.

There are very, very few allegations that go forward to the BSB of professional misconduct due to a barrister’s behaviour at trial. I am not aware of any barrister who has been held in contempt, or where there has been a suggestion that their conduct amounts to this. In short, the behaviour of the advocate is unheard of.

The concern I have here is that when there has been a total failure on the part of an advocate to act in a proper manner, how can the Court be satisfied that ‘due process’ has been followed?

The authorities are not always entirely consistent, but the right to a fair trial is a fundamental one at the heart of our legal system. For example, from Michel [2009] UKPC 41: “There is, however, a wider principle in play in these cases merely than the safety, in terms of the correctness, of the conviction. Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the Appeal Court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried“. This is because “The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial(this is also deals with the fact that the case against Mr Farooqi was a very strong one – it may well have been, but that is not the point).

As stated, the behaviour of Mr McNutly was unprecedented. Mr Farooqi was entitled to competent legal representation in order to ensure a fair trial. On the face of it, it seems that he did not receive that. The fact (if the Court of Appeal is right) that the Judge undid the damage done by Mr McNulty, doesn’t deal with the question of whether Mr Farooqi received the level of representation that he deserved.

Looking at the exchanges, and the way the Judge had to direct the jury, one wonders what the effect on a jury would have been? Can you say that a different advocate would not have made a difference? It seems to me that in the (hopefully) unique circumstances of this case, the conviction was unsafe.

Can a Judge ‘red card’ an advocate?

This is potentially a key question. At para 79 the Judge said “Now what can I do? I order a retrial, a retrial to start in front of another Judge at Woolwich next January. What can I do to prevent exactly the same thing happening again? They do not give us red cards…”. The Court of Appeal seems to have confirmed this at para 116 when talking about whether the Judge should have discharged the jury :“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.”

Is that right? I would suggest not. There is no authority that I am aware of that deals with the issue in a criminal trial. The Court of Appeal (Civil Division) have considered the point and held that a court has the power “to restrain an advocate from representing a party if it is satisfied that there is a real risk of his continued participation leading to a situation where the order made at trial would have to be set aside on appeal.” (Skjevsland v Geveran Trading [2002] EWCA Civ 1567– para 42).

There is no reason that this shouldn’t apply to a criminal case. In fact, there are good reasons why it should – under Art 6 ECHR the Court is a public authority and had a duty to Mr Farooqi to protect his convention rights. In the exceptional circumstances of this case then the Judge would not only have been entitled but, in my view, obliged, to discharge the jury and start the trial afresh with Mr Farooqi entitled to the advocate of his choice, but not Mr McNulty.

If that is correct then both the Crown Court and the Court of Appeal misdirected themselves. Of course, it could be said that as the Court of Appeal found the conviction safe, this was unnecessary, but it may be that they would have come to a different conclusion if it felt that they could prevent a re-trial from going the same way (it certainly appears that the Judge in the Crown Court might have).

In any event, the test for the Crown Court would have been whether there would be a ‘real risk’ that, if Mr McNulty continued to represent Mr Farooqi, the conviction would be overturned. A hypothetical barrister looking after Mr Farooqi’s interests at his trial, would have made an application (during the closing speech at the very latest). Given the circumstances of this case it is hard not to see how the Judge would not have agreed that there was a real risk that the trial was heading to an unsafe conviction.

On a separate note, one can’t help thinking that if this had been a shoplifting case, it might have been approached differently, both in the Crown Court and the Court of Appeal (see, for example para 116 “it was open to [the Judge] 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”), but this should surely not make a difference? If anything, the more serious the charge, the more important the appearance of justice is.

Conclusion

It is not a surprise that the Court of Appeal would have been extremely reluctant to allow an appeal after such a lengthy trial. But, it seems to me that in this case they got it wrong.

It is not clear whether it was argued that the Judge should have ‘discharged’ Mr McNutly, but, given the extraordinary nature of the difficulties, it seems to me that justice required that that was done.

Ultimately, we have someone serving a life sentence having relied on the services of a lawyer who’s behaviour at the trial appears to have amounted to a contempt of court (certainly in the view of the Attorney General). He is entitled to feel aggrieved, and legitimately so. Looking at it, can it truly be said that justice has been seen to be done?

Footnote : Richard Moorhead has done a very good piece on the judgment here, and has put Simon Myerson QC’s comment as a separate post. Some consideration of the impact of the judgment is on the Free Movement Blog. There is also consideration given to it on Legal Ethics Forum (a US site) with some interesting commentary.

*Mr McNulty, the ‘errant barrister’, was the subject of sustained criticism from all sides. He doesn’t seem to have helped himself particularly by not responding to requests for witness statements etc. Having said all of that of course, whilst we should proceed at the moment on the basis that the criticisms are all valid, there are two sides to every story.

[Edit] – Mr McNulty has responded to (some of) the criticisms here.

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5 thoughts on “What’s a Judge to do? Thoughts on Farooqi

  1. 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.

  2. Pingback: Court of Appeal criticism of advocate extends beyond the man himself | Lawyer Watch

  3. Pingback: Guest Post, Court of Appeal got the Farooqi Decision Correct | Lawyer Watch

  4. Pingback: Role of the advocate at trial | Free Movement

  5. Pingback: Is an inadequate defence statement now professional misconduct? | Dan Bunting - A Life in the Bus Lane

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