Practice and Procedure


PUBLISHED April 14, 2003

Where counsel had conducted two separate trials simultaneously and at the time was being investigated for allegations of rape, the court had to decide whether his conduct was so unreasonable so as to affect the fairness of the trial. The convictions were safe as there had been overwhelming evidence.Appeal against convictions by the two defendants ('B' and 'L'), B had leave to appeal from the single judge and L from the full court. The two appeals arose from completely unrelated offences that had nothing in common. They were tried by different juries and in different courts with different judges. On 15 February 2000 at the Central Criminal Court B was convicted and sentenced to life imprisonment for murder, following a trial which started on 11 October 1999. On 27 January 2000 at Staffordshire Crown Court before Kay J, L was convicted and sentenced for conspiracy to murder, following a trial which started on 12 January 2000. The appeals were heard together as they arose over a complaint regarding the conduct of a junior barrister ('C') who lead the defence for B and L simultaneously. C was called to the Bar in 1979. In August 1999 C was arrested over allegations of the rape of two sisters. C accepted a brief from B. At B's trial there was also leading junior counsel ('R') who conducted most of the trial. In December 1999 R broke her ankle and C took over the cross-examination of one of the witnesses. The cross-examination lasted two days and during the course of the cross-examination C was questioned again by the police over the rape allegations. On 6 January 2000, whilst he was still conducting B's trial, he accepted a brief from L, then made an application to the court for a leading junior, ('F') to appear, which was granted. It was R's understanding that C would be away for one day but it soon became clear that he was conducting another trial. Solicitors were never informed. On 14 January C was declared bankrupt. On 24 January at the close of evidence in L's trial C requested that the court sit late as he was involved in a case at the Central Criminal Court. The judge refused to sit late in order that C could give a short closing speech. The two trial judges spoke together and C gave a closing speech on 25 January. At B's trial a whole day was wasted and a wasted costs order was made. B and L appealed convictions on the grounds that the convictions were unsafe as they had not had a fair trial as the performance of C was Wednesbury unreasonable. The Crown contended that whatever misconduct there had been, both defendants had been competently represented. Both trial judges had done their best to ensure that the trials were fair. The question was whether the conduct of the trial fell below a proper standard not whether C was affected by personal circumstances, as per R v Hall (2002) EWCA Crim 1181. His conduct could, therefore, only affect the convictions if Wednesbury incompetent and the court of appeal should concentrate objectively on whether the trial was fair.HELD: (1) A barrister under investigation for serious offences was under a duty to the defendant, the public and to the court. The conduct of a case may be affected, if charged, due to adverse publicity or possibly the withdrawal of bail. However, fortunately none of those events occurred. Concerns over personal circumstances and bankruptcy could not be worse than knowledge of, for example, serious illness. Professionalism required that a barrister should do his job properly. (2) The test was whether the conduct was Wednesbury unreasonable and such as to affect the fairness of the trial. C should not have accepted the brief from L without getting express consent from the parties involved and informing the trial judges. There was no accurate estimate of when, and how long, the closing speeches in the case of B would take when he accepted L's brief. It was likely to have taken some time and required careful attention. B's trial did not end until six weeks after C took L's brief. (3) Neither trial judge could have considered that there was any unfairness or he would not have allowed the trial to proceed. The trials of both B and L were properly carried out. The evidence was properly tested. There was no unfairness in L's trial as the evidence against him was overwhelming and the conviction was safe. In the case of B, neither C's personal problems or absence resulted in any inadequacy. Again there was overwhelming evidence against B and the conviction was safe.Appeals dismissed.