Can serving an inadequate defence statement now be professional misconduct?

From the Telegraph

From the Telegraph

Introduction

Two things. Firstly, I looked last year at the case of Farooqi and the alleged bad behaviour of his barrister, Lawrence McNulty. Secondly, I had a bit of a rant last night about the CPR and raised the question of whether we are effectively scrapping the adversarial system by stealth.

Sometimes, serendipity plays its part. Today, 31st July 2014, it was announced that the BSB had convicted Mr McNulty of the four charges of professional misconduct that he faced. He has been suspended from practice for four months (suspended pending an appeal). There’s a good article about it in the Guardian by Joshua Rozenberg.

We don’t have the full transcript, but looking at it, there’s an immediate concern that springs out – is failing to comply with defence disclosure under the CPR/CPIA now professional misconduct? Surely not, you say. But consider …

 

What was Mr McNulty convicted of?

We have the statement of findings for Mr McNulty. Also, the fact that there were four charges. Putting this together, we can work it out. I want to look at the last charge which was, set out in full :

Lawrence McNulty, a barrister, on or before the 11th August 2011 engaged in conduct which was prejudicial to the administration of justice in that, by skeleton arguments served on the 26th and 27th July 2011, amplified by oral argument on the 29th July 2011, he advanced a series of legal arguments before the Crown Court at Manchester, namely:
a. a submission that the evidence of undercover officers be excluded pursuant to Section 78 of the Police and Criminal Evidence Act 1984 at a stage when the evidence had been called and completed before the jury;
b. a submission that the conduct of undercover officers was seriously improper, amounted to entrapment or attempted entrapment and thereby brought the administration of justice into disrepute such that the proceedings should be stayed;
c. a submission of no case to answer on each count faced by D1 save for count 4, which relied in part upon the defence of self-defence in circumstances where:

d. the issues of self-defence, entrapment and improper conduct by the undercover officers were not raised in the defence statement served on behalf of D1;
e. he failed to serve/ensure the service of a supplementary defence statement in which the issues of self-defence, entrapment and improper conduct by the undercover officers were identified as issues to be raised in the defence of D1;
f. he failed otherwise to notify in good time the Court, Crown and co-accused that self-defence, entrapment and improper conduct by the undercover officers were live issues in the case.

 

Comment

On this charge, it is then professional misconduct to deploy a legal argument without notice. This is surely a matter of great concern? It may be said that Mr McNulty only found himself in front of the BSB because of the other matters, but that’s not the point. The finding is out there. To my mind it is clear that it is (d), (e) and (f) that are all designated professional misconduct. Even if it is just (f), then this may raise an issue of costs if a jury is discharged to deal with it, but professional misconduct? That is a huge worry.

Just one example of where this may lead – it is clear that this must apply to a deliberate decision to ‘hold back’ an argument. But if Ms X goes in front of a ‘difficult’ bench, or HHJ Intemperate, and thinks of something on her feet that gives rise to a legal submission. This is not professional misconduct if she raises it, but what happens if the tribunal do not believe that straight off and threaten a BSB referral? This is potentially another impediment on a defence lawyer to do their job.

Time it was that holding back an argument was the sign of a good barrister, a tactic to be applauded. Whether that’s right or not, and there are good reasons to my mind to say that it’s not actually how it should be done. However, it is surely not right that the above scenario is misconduct. This is shoring up the shift away from an adversarial system that I was looking at yesterday. It should not happen without debate.

As I say, I’m not defending anything else said or done by Mr McNulty during the trial. I wouldn’t have done what he had done. But that’s not the point. It is easy to write this off as relating to the facts of the case, but as lawyers we are well aware of a ruling on one set of facts being applied to another.

Look at the charge of misconduct above and ask yourself “shouldn’t we be worried at the implications“?

I know I am.

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3 thoughts on “Can serving an inadequate defence statement now be professional misconduct?

  1. I have already stated that a DCS is regarded by some of the Judiciary as a checklist of things the Crown have got wrong -I have been “ticked off” by a trial judge for not telling the Crown (pre-trial) that one of the Counts wasn’t in forrce at the time. The two poiints here are that (a) I find it hard to accept that it is part of my duty to help convict my client and (b).our prosecution system will get worse if it doesnt learn to think for itself.

  2. I agree that Judges sometimes forget that a DCS is something that triggers disclosure, and equate it with a Defence in a civil case. They are also less than keen to adopt what seems to me to be the most useful remedy for filing an inaccurate DCS or not filing a full one; namely, showing it to the jury and letting them use it as evidence. But the real issue here seems to be ‘trial wrecking’ – deliberately allowing the evidence to be given without objection, and then putting forward a defence which the prosecution had not been permitted to address because it had not known it was being run. I read the sub-paragraphs as if d, e and f were actually particulars of how the circumstances set out in a, b and c arose. I think that’s what the drafting indicates.

    In that case, your concerns are answered to an extent. The last 3 particulars would actually be ways in which the submissions were improper conduct. I agree that a fuller record would be more helpful.

  3. On 30th July 2014 a Bar Disciplinary Tribunal delivered their reasons for convicting me on four separate charges of professional misconduct, relating to R v Farooqi. These convictions are currently under appeal.

    I have now set up a web page at http://lawrencemcnulty.wordpress.com the purpose of which is twofold. First, to date examination of the evidence in this case has been restricted to relatively few people. For the first time the documents published here will permit those who wish to do so to examine the evidence in order to form their own conclusions as to whether I am guilty of professional misconduct, or not. Included is a full transcript of my speech and the written reasons of the Disciplinary Tribunal.

    Second, in the reasons supplied for my conviction in respect of charge 4 the Tribunal set out requirements for matters to be included in defence statements which , so far as I am aware, appear nowhere else. As the implication of their findings is that failure to comply with these requirements amounts to professional misconduct, it is important that those who practice at the criminal bar should know what they are.

    Lawrence McNulty

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