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Mr Loophole rapped for ‘sharp practice’ - July-20-12
Source: The Times - Law
The man known as Mr Loophole — one of the highest-profile lawyers in the country — has been condemned for “sharp practice” by the High Court.
A top judge has criticised Nick Freeman for failing to put “all his cards on the table” in a controversial speeding case.
Sir John Thomas, president of the Queen’s Bench Division, said that there had been sharp practice of a kind the High Court “wants to see stamped out”.
Mr Freeman famously earned his “Mr Loophole” tag by getting motorists cleared in driving cases that appeared impossible to win.
He has written a book called Art Of The Loophole: Making The Law Work For You.
His talents have drawn many celebrity clients, including David Beckham, Sir Alex Ferguson, Andrew Flintoff, Colin Montgomerie and Jimmy Carr.
Specialising in traffic and speeding offences, he has used his knowledge of motoring law to expose police officers who fail to follow legal process and to identify discrepancies and shortcomings in prosecution cases.
But now his methods have led to a collision with top judges in the case of Zafar Ali, of Sudbury Hill, Wembley, north west London.
Ali pleaded guilty at Crawley Magistrates’ Court in May last year to driving a Porsche at more than 117mph on a dual carriageway section of the A23, well in excess of the 70mph speed limit.
The prosecution was not represented at the hearing. Ali was fined £600, and ordered to pay a £15 victim’s surcharge as well as £43 prosecution costs. His licence was endorsed with six penalty points.
“Mr Loophole” became involved when Ali was summoned back to court after second information was laid regarding the speeding incident.
Mr Freeman acted as Ali’s advocate at the second trial, which was held at Horsham, West Sussex.
Cross-examination of a police witness revealed errors in police statements, and Ali was acquitted on the second information after the prosecution offered no further evidence.
Immediately after the acquittal, Mr Freeman applied to the court to set aside Ali’s earlier conviction at the first trial on the grounds that — despite Ali admitting the speeding offence — the conviction was also flawed by errors and inaccuracies in police statements.
The case came to London’s High Court this week because the magistrates’ court refused the set-aside application last November, saying Ali had not been misled and had suffered no injustice after admitting excess speeding.
Dean George, representing Ali at the High Court, argued that the magistrates’ refusal was “wrong and unreasonable”.
But Sir John suggested to Mr George that Mr Freeman should have put all his cards on the table and told the second trial at the outset about Ali’s earlier conviction — and that he intended to apply to have it set aside.
That, said the judge, would have enabled the case to be reopened and further evidence called, including a DVD corroborating that a speeding offence had been committed.
Sir John, sitting with Mr Justice Globe, said: “Without any shadow of doubt (Ali) would have been convicted. He had no defence.”
Instead Mr Freeman had taken Ali’s case before justices and prosecutors “who had no idea” he would be seeking to have his conviction from his first trial set aside once he had been acquitted on the flawed second information.
Sir John said: “The court needs to be told what is going on.
“This is sharp practice of the highest order.”
The High Court heard that Ali was represented by the Manchester-based solicitors firm Freeman Keep On Driving (FKOD).
Sir John said it appeared that “the well-known traffic lawyer” Mr Freeman had been instructed by FKOD to act as Mr Ali’s advocate at the second trial.
Mr George argued on behalf of FKOD that there was no evidence to suggest Mr Freeman was engaged in sharp practice.
“He was entitled to be instructed to contest this particular case to its full,” said Mr George.
But Sir John replied: “It is sharp practice of the kind this court — in its overall supervisory jurisdiction of the lower courts — wants to see stamped out.”
In a robust ruling, Sir John said that Ali was making a renewed application after another judge, Mr Justice Wilkie, had refused him permission to seek judicial review and said there seemed to have been “sharp practice”.
Sir John said: “I very much regret to conclude, having given those appearing for the claimant the opportunity of explaining what happened, that the criticism of the judge that what happened appeared to amount to sharp practice is in my view the correct conclusion.
“It is to be hoped that advocates will appreciate the importance of the ’cards on the table approach’.”
The judge said that he was taking the unusual step of speaking out in a “permission” case because it illustrated again “the necessity for those who appear in the magistrates’ courts to have in the forefront of their minds the duties that the Criminal Procedure Rules impose on all advocates”.
The judge said that the point was first made some years ago in the High Court case of “DPP v Chorley justices”.
That 2006 case was heard by Sir John — then Lord Justice Thomas — and he ruled: “The days of ambushing and taking last-minute technical points are gone.
“They are not consistent with the overriding objective of deciding cases justly, acquitting the innocent and convicting the guilty.”
The duty of the court was to see justice was done and that involved “looking at the real justice of the case and seeing whether the rules have been complied with by ’cards being put on the table’ at the outset and the issues being clearly identified”.
Sir John said that the Chorley judgment was intended to mark “a sea change” in the way advocates operated, and he hoped the kind of conduct complained about in Ali’s case “will never occur again”.
Mr Justice Globe agreed and said Ali’s “utterly unarguable” application must be dismissed.
His claim had no merit — “by reason of his guilty plea he admitted that he had been speeding, as alleged”.
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