If you do immigration law, then you will know that the LCJ is keen on laying down the law, and not shy about calling out lawyers who, as he sees it, are failing in their duty (see here, here and here. Oh, and here).
Well, he’s turned his fire on criminal lawyers. Specifically with the case of Achogbuo  EWCA Crim 567, criminal lawyers trying to appeal on the basis of the failings of other lawyers.
The case was a referral under s20 Criminal Appeal Act 1968. This is a rarely used provision that allows the Registrar to pull cases that have ‘no substantial ground of appeal‘ out of the usual route of appeal and put it in front of the full Court who can dismiss it without a hearing if they consider that it ‘is frivolous or vexatious‘.
In this case, Mr Achogbuo was convicted after a trial of two counts of Sexual Assault on a child under the age of 13. This was on 15th August 2011 and he was sentenced to 18 months concurrent. It’s worth noting that, even if there was no time on remand, Mr Achogbuo would have been released in mid-May 2012.
The story (in brief) after this is that he approached a different firm of solicitors with no effect. After that, in August 2012, Mr Achogbuo instructed Coward & Co. They asked the original solicitors for the trial papers, which they received (after some delay) and put in grounds of appeal (relating to hearsay) in July 2013.
The Court of Appeal got transcripts, which showed that there was actually no issue here, and so the application was (presumably) withdrawn.
There was then a second application in January 2014. This featured a different ground – namely that he was not advised as to whether he should waive privilege to show the jury that he had denied the allegation in the police station to combat the adverse inference.
The major problem was that this second application did not refer to the first one, and the request for an extension of time set out some of the problems but did not refer to this either. Had it done so, this case would probably have gone through the system in the usual way without any more ado. It would probably not have lead to the conviction being quashed, but it would certainly not have attracted the s20 procedure.
The Court noted that there were serious questions as to why the application this year did not refer to the previous application, although they did note that they could not enquire into the circumstances why (but this failing made the application frivolous and vexatious).
They did say that it was “clear beyond argument that the grounds put forward for bringing this application are bound to fail”, so it followed that there was no ‘substantial ground of appeal’ (a prerequisite for the operation of s20) and that this also made it ‘frivolous and vexatious’.
I won’t say anything about the non-disclosure, that will have to run it’s course with the SRA. The reasons for dismissing the appeal are very limited (although that is inherent in the use of the s20 procedure). It is worth noting that the Court said (para 14):
“It is clear from the response of the trial solicitors that there had been numerous complaints by the applicant, that many of them had been rejected out of hand, but, more importantly, that they had notes on the advice given at the police station in relation to the no comment interview. The notes showed that the solicitors’ representative advised the applicant to make no comment during the interview after the applicant had said that he denied the allegations and that he could give no explanation as to why the allegations had been made. He was advised about adverse inference.“
This doesn’t actually address the grounds of appeal – it may well be that Mr Achogbuo was advised about adverse inferences at the police station (it would be surprising if he had not been), but the ground put forward was that the trial advocate should have advised a waiver of privilege to put Mr Achogbuo’s account before the jury and the reason for the ‘no comment’ advice.
As I said, it’s not a ground of appeal that jumps out as being one that is bound to succeed – I’d be surprised if it did (at least on its own). It does seem (to me) to be wrong to say that it has ‘absolutely no prospect of success‘. If, as presumably is the case, there was an adverse inference, then waiving privilege and putting in front of the jury the police station notes may stop that. It’s a situation that is fraught with danger, but is a perfectly respectable course of action in some cases.
Just as the CPS sometimes bring cases that meet the criteria, notwithstanding that it’s clear to everyone that it’s pretty likely to end up in an acquittal, so do defence reps have to sometimes make grounds of appeal that they know will probably lose, because they think that they are right and that the conviction is potentially unsafe. This would seem to fall into that category.
Was Mr Coward wrong to not speak to the previous lawyers?
I would say that he was not. Had he researched the law (I’m not saying that he hasn’t), he would have found “A Guide to Commencing Proceedings in the Court of Appeal Criminal Division”.
A2-7 Procedure in relation to particular grounds of appeal
A2-7.2 Complaints against trial counsel as a ground of appeal
Where a ground of appeal explicitly criticises trial counsel and/or trial solicitors, the Registrar will institute the ‘waiver of privilege’ procedure. The appellant will be asked to ‘waive privilege’ in respect of instructions to and advice at trial from legal representatives. If he does waive privilege, the grounds of appeal are sent to the appropriate trial representative(s) and they are invited to respond. Any response will be sent to the appellant or his fresh legal representatives for comment. All these documents will be sent to the single Judge when considering the application for leave. The single Judge may draw inferences from any failure to participate in the process. ‘Waiver of privilege’ is a procedure that should be instigated by the Registrar and not by fresh legal representatives, who should go no further than obtaining a waiver of privilege from the appellant: Doherty and McGregor  2 Cr.App.R. 218.
My reading of that was simple – the proper thing to do, if there seems to be a possible ground of appeal, is lodge the grounds (without delay) and have the process of seeking the former lawyer’s views sought formally by the Registrar.
There is reference to Doherty & McGregor  EWCA Crim 556. It’s worth reading it to see what it says. This is geared more towards allegations of a breach of professional conduct (acting in breach of instructions) rather than the category of cases here (negligence). The former sorts of complaint are (generally) much more amenable to informal resolution than the latter (which are more value judgments). Remember, the lawyer isn’t (or shouldn’t be) whistling in the dark here – they should have the file of the previous solicitor.
But anyway, it also cites the previous guidance which reads, in part :
2. When counsel newly instructed is satisfied that such allegations are made, and a waiver of privilege is necessary, he should advise the lay client fully about the consequences of waiver and should obtain a waiver of privilege in writing signed by the lay client relating to communications with, instructions given to and advice given by former counsel. The allegations should be set out in the Grounds of Application for Leave to Appeal. Both waiver and grounds should be lodged without delay; the grounds may be perfected if necessary in due course.
7. This guidance covers the formal procedures to be followed. It is perfectly proper for counsel newly instructed to speak to former counsel as a matter of courtesy before grounds are lodged to inform him of the position.”
The last paragraph reads “The purpose of the “courtesy” referred to in the guidance is to inform trial counsel of the allegations which are to be made. It is not to be treated as an opportunity to cross-examine or interrogate him, whether before the grounds of appeal and necessary documents have been lodged with the registrar, or after counsel has responded. Where there is a factual dispute between a client and former counsel both the appellant and counsel may be required to give evidence so that, unless agreed, issues of fact may be resolved. The opportunity for cross-examination arises at that stage.”
I would suggest that this indicates that Mr Coward was right (in light of the guidance that existed at the time) to not approach the previous lawyers. Or at least he could not be criticised for doing so. This raises the question of whether the Court of Appeal is right to change the approach in relation to how these appeals should be conducted.
Complaints against trial counsel as a ground of appeal
This is the aspect of the case that concerns me the most. The relevant two paragraphs are :
“16. Of late it has become the habit for a number of cases to be brought on appeal to this court on the basis of incompetent representation by trial solicitors or trial counsel. As in this case, many such cases proceed without any enquiry being made of solicitors and counsel who acted at trial. That means that the lawyer who brings such an application acts on what is, ex hypothesi, the allegations of a convicted criminal – and in this case a convicted paedophile. For a lawyer to put forward such allegations based purely on such a statement, and without enquiry, is in our view impermissible. Before applications are made to this court alleging incompetent representation which is based upon an account given by a convicted criminal, we expect lawyers to take proper steps to ascertain by independent means, including contacting the previous lawyers, as to whether there is any objective and independent basis for the grounds of appeal.
17. As long ago as 1997 in R v Doherty and McGregor  2 Cr App R 218, this court drew attention to the fact that it was proper for fresh representatives as a matter of courtesy to speak to former counsel before grounds of appeal are lodged. Today circumstances have changed. The frequency of this kind of appeal makes it clear to us that counsel and solicitors would be failing in their duty to this court if they did not make enquiries which would provide an objective and independent basis, other than complaints made by the convicted criminal, as to what had happened.”
Firstly, to say that these sorts of allegations are put forward ‘without foundation’ is wrong. Someone who has the previous file has an objective record (of sorts) as to what happened as the case progresses. It may be inaccurate, it may be incomplete, it may raise questions that can be answered in full in due course, but I would suggest that this is the best evidence that you can get, at least at that stage, and is far more useful than an enquiry from a previous lawyer.
How will the Court of Appeal’s suggestion work? In a movie it’s simple. It’s probably an American film so you pick up the phone and ask the lawyer who dealt with the case all the way through, get the answer and get on with it. In practice you have a police station rep (who may be freelance), a solicitor who is harassed, overworked and underpaid, and maybe three or more advocates who dealt with the case in Court – some in Chambers, some freelance, some in house.
You have to speak to all of them. At least when the Court of Appeal contact them, they will take it seriously and respond. It will take many months to collate all the answers, which will then have to be gone through again when the waiver is served. This is fine, as long as the Court of Appeal don’t mind when the applications are even more out of time. Also, as the new lawyer will probably be on an hourly rate this may increase the costs unnecessarily.
Additionally, when you speak to a previous lawyer, the Court of Appeal are suggesting that it’s not just a courtesy to inform them that grounds are going in, we are expected to make initial enquiries. There are two obvious problems with this. Firstly, you will have to be careful that everyone knows that this is a formal process with you reporting back to the Court of Appeal, and you will be taking notes of what they say, or demanding it in writing.
Secondly, if there has been a problem with the previous lawyers, do you expect that they will immediately ‘fess up? I’m a bit sceptical of that (leaving aside that many of these issues will be judgment calls). To what extent is a lawyer bound by the answers she gets? When is she entitled, or indeed obliged, to look beyond them and put in the grounds anyway?
At para 20 it is said “In cases where the incompetence of trial advocates or solicitors is raised, the exercise of due diligence requires, having made enquiries of trial lawyers said to have acted improperly, taking other steps to obtain objective and independent evidence before submitting grounds of appeal to this court based on allegations of incompetence”.
This raises the bar even higher. What is this independent evidence? Where is it supposed to come from? This is already too long so I won’t go on, but it seems to me that the previous method of conducting these appeals was preferable.
The creation of new ‘Procedure Rules’ in a judgment
What has happened here is, effectively, a new way of conducting appeals of this nature has been announced. The problem with this course of action is that it does not allow for input from defence lawyers and other interested parties to make suggestions. This is important because this new approach has to be implemented by us and it may be useful to see what we have to say about it. This does have implications to the Handbook (Code of Conduct) and it maybe that the BSB and LSB would have wished to have some input into it.
Will this stem the tide of these sorts of appeals?
No, and more importantly neither should it. In many ways this guidance is twenty years too late. The problem here is that there has been a 40% or so cut to legal aid in the last eight years. This is coupled with fewer people being eligible whilst the law itself has got more and more complicated.
The consequences are inevitable – there will be more miscarriages of justice. Further, more people will complain about their representation, mainly because they are getting worse representation than they would have ten years ago.
As night follows day, there will be an increase in the number of people making complaints against their previous lawyers. If there is a problem with that, don’t take it out on the lawyers, take it out on the Government – their cuts have caused it. As many have said, cuts have consequences, and savings in one area often lead to greater expense elsewhere.
Sadly, these sorts of complaints are on the up. Some of them are vexatious, some are frivolous, but more and more are genuine complaints from people who have been badly served by the system (I’m not saying that this case falls into that category) and this is going to be more and more of an issue unfortunately. This message from the LCJ is the wrong message at the wrong time and directed to the wrong people.
Not to include the fact of the previous application was not correct, there’s no doubt about it, and Mr Coward deserves criticism for this. But, as the Court of Appeal said, let’s put this to one side.
The rest of the judgment causes me real concern. This is something that the Court of Appeal will not have done lightly and I am not saying that they dealt with this case unfairly, or that it was one that should have succeeded, but hard cases make bad law, and I am concerned as to where this judgment leads.
On the face of it, the application was a proper, if optimistic, one (the grounds aren’t published, so we can only go on what is in the judgment), at least certainly not one that was doomed to fail if it wasn’t for the non-disclosure.
But, even if that is wrong, it is concerning that procedural guidance is changed in a judgment rather than by a consultation, and this is really because I am concerned that the new method of dealing with these sorts of appeals is one that will make things worse.
There will be a rise in the number of complaints I fear. This is not because lawyers are more difficult or truculent than they used to be, but because there is legitimately more to complain about.