The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist saying that they had no time properly to prepare the case.
Held: The judge was right to have refused a lengthy adjournment. The defendant had himself procured the difficulty, but an adjournment of a day or so in order to take stock and, if necessary, allow new representatives to be properly instructed is another thing. If that is what fairness requires, that is what needs to happen. There is a danger that pressing on regardless may lead to errors being made and, importantly, to a situation where justice is not seen to be done.
Whilst a legal representative could not be obliged to continue in a case where he complained of professional embarrassment, where that resulted only from the lateness of instructions, he would normally be expected to do the best he could in the circumstances.
The court discussed counsel’s duty: ‘The correct meaning of the phrase ‘acting on instructions’, as it applies to the professional responsibility of the advocate in any criminal court, is sometimes misunderstood, even by counsel. Neither the client, nor if the advocate is a barrister, his instructing solicitor, is entitled to direct counsel how the case should be conducted. The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client ‘instructs’ him to say. In the forensic process the client’s ‘instructions’ encompass whatever the client facing a criminal charge asserts to be the truth about the facts which bring him or her before the court. Those instructions represent the client’s case, and that is the case which the advocate should advance. In practical terms, that will often mean that prosecution witnesses will be cross-examined on the basis that they are lying or mistaken, or have misunderstand or misinterpreted something said or done by the defendant; however there is almost always some evidence advanced by the prosecution which, on the basis of the client’s instructions, is not in truth in issue at all, either directly, or indirectly. Some decisions, of course, must be made not by the advocate, but by the defendant personally, for example, and pre-eminently, the plea itself, and in the course of the trial, the decision whether or not to give evidence. ‘
Sir Igor Judge P discussed the effect of the regulations when considering an application to transfer a Legal Aid Order: ‘The purpose of this part of the Regulations is to ensure that the client does not manipulate the system, seeking to change his lawyers for dubious reasons which include, but are not limited to, the fact that the lawyer offers sensible but disagreeable advice to the client. Claims of a breakdown in the professional relationship between lawyer and client are frequently made by defendants, and they are often utterly spurious. If the judge intends to reject an application for a change of legal representative he may well explain to the defendant that the consequence may be that the case will continue without him being represented at public expense. The simple principle remains that the defendant is not entitled to manipulate the legal aid system and is no more entitled to abuse the process than the prosecution. If he chooses to terminate his lawyer’s retainer for improper motives, the court is not bound to agree to an application for a change of representation. What we find in practice in most cases is that courts faced with this problem are usually prepared to agree to at least one change of representative, provided they are proposed in reasonable time before the trial, and before substantial costs have already been expended in the preparation of the defence case. In the end, however, the ultimate decision for the court is case and fact specific, and it does not follow from the repeated [incantation] of the mantra ‘loss of confidence’ that an application will be granted.’
References: [2007] EWCA Crim 2379, Times 07-Nov-2007, [2008] 1 WLR 1209, [2008] 1 All ER 547
Links: Bailii
Judges: Sir Igor Judge P, Pitchers J, Openshaw J
Jurisdiction: England and Wales
This case cites:
- Cited – Regina v Jones (Robert) No 2 1972 ([1972] 1 WLR 887, [1972] 56 CAR 413)
The court was entitled to proceed to hear the case in the absence of the defendant where he had absconded. I was counsel’s prerogative not the judge’s, to decide whether he could continue to represent the defendant. . . - Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006 (, [2006] UKHL 16, Times 30-Mar-06, [2006] 2 WLR 772, [2006] 2 CAR 9, [2002] 2 CAR 128, [2007] 1 AC 136, [2006] 2 Cr App Rep 9, [2006] 2 All ER 741, [2007] Crim LR 66)
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . . - Cited – Regina v G and B CACD 2004 ([2004] 2 Cr App R 37, [2004] EWCA 1368)
Rose LJ said: ‘Both in principle and pragmatically, whether a solicitor or barrister can properly continue to act is a matter for him or her and not the court, although of course the court can properly make observations on the matter’. . . - Cited – Regina v Shaw CACD 1980 ([1980] 70 CAR 313)
It was counsel who must decide whether he could continue properly to represent a client, not the judge. . . - Approved – Regina v Ashgar Khan 10-Jul-2001 (Unreported, 10 July 2001)
Judge Wakerley QC expressed his concern at the numbers of applications for transfer of representation in the Crown Court. The court has a duty to bear in mind the cost to the taxpayer and that, as a result, good reason must be established before a . .
This case is cited by:
- Approved – Clive Rees Associates, Solicitors, Regina (on The Application of) v Swansea Magistrates Court and Another Admn 30-Nov-2011 (, [2011] EWHC 3155 (Admin))
The claimant solicitors challenged a decision of the respondents to transfer legal aid orders for the representation of clients to a second frm of solicitors.
Held: The court considered the various cases, finding three decisions unlawful and . . - Cited – In re Brownlee for Judicial Review SC 29-Jan-2014 (, [2014] UKSC 4, , UKSC 2013/0247, , , [2014] NI 188)
The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . . - Cited – Cadamartriea, Regina v CACD 18-Oct-2019 (, [2019] EWCA Crim 1736)
Appeal from conviction of murder – whether a fair trial after a withdrawal by his counsel at the conclusion of his evidence. Counsel had said they were professionally embarrassed by new instructions.
Held: The appeal succeeded. The judge had . .
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.260057
