Duties of Counsel in Criminal Appeals

Under s.20 of the Criminal Appeals Act 1968:

If it appears to the registrar that a notice of appeal or application for leave to appeal does not show any substantial ground of appeal, he may refer [it] to the Court for summary determination; and … the Court may, if they consider that [it] is frivolous or vexatious, and can be determined without adjourning it for a full hearing, dismiss [it] summarily, without calling on anyone to attend the hearing or to appear for the Crown thereon.

Until recently, this power had been little used, but that is no longer the case; and its recent use has caused the Court of Appeal, Criminal Division to identify a number of duties that a new legal team owes to the court, and to warn lawyers that they will be enforced.

In R v Achogbuo [2014] EWCA Crim 567, a Court of Appeal presided over by the Lord Chief Justice exercised this power on an application for an extension of the time for appealing.

The defendant was convicted on two accounts of sexual assault of a child under 13.  He tried to appeal out of time on the ground that an application had been made and granted to admit hearsay evidence of a named witness.  On receipt of his application, the court made enquiries.  It became clear that no hearsay application had been made at all in respect of the named witness, so the ground of appeal was misconceived.  The application was not pursued.

The defendant then made a second application.  This time, he sought to appeal on the ground that he had not been advised about the pros and cons of waiving privilege and allowing the jury to know why he had given a ‘no comment’ interview and that, in particular, he had denied the offence when giving instructions to his solicitors at the police station.  As this involved criticism of his former legal representatives, the court set in train its ‘waiver of privilege’ procedure.  The court’s enquiries led to the clear conclusion, “that this case is one that has absolutely no prospect of success”.  The second application was dismissed summarily under s.20 on this basis, and also on the basis that the court had not even been told about the first application: “a serious non-disclosure”.  Both grounds were said to make the application frivolous and vexatious.

Having reached this conclusion, the court took the opportunity to set out the duties of advocates and solicitors in cases involving the criticism of previous legal representatives.  The Lord Chief Justice identified his concern in this way:

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.  … many such cases proceed without any enquiry being made of solicitors and counsel who acted at trial.  This means that the lawyer who brings such an application acts on what [are], ex hypothesi, the allegations of a convicted criminal …  For a lawyer to put forward such allegations based purely on such a statement, without enquiry, is in our view impermissible.  Before applications are made to this court alleging incompetent representation which is based upon an account given b 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.

But the Court also explained that contacting previous representatives may not be enough:

The court expects not only the highest standards of disclosure but also strict compliance with the duties of advocates and solicitors.  It is the fundamental duty of advocates and solicitors to make applications to this court after the exercise of due diligence.  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 incompetence.

As a final salvo, the Court directed the Registrar to refer the matter to the Solicitors’ Regulation Authority (‘SRA’).

Having threatened to “consider exercising [its s.20] power more frequently if cases of the type referred to us today occur again”, the court followed through on this threat less than a month later, in R v McCook: this time in a case which did not involve criticism of trial advocates or solicitors.

In McCook, there had been an original trial, an appeal, and a retrial.  After the second trial, counsel had advised that there were no grounds for an appeal, and the solicitors had agreed.  New solicitors were then instructed.  The new solicitors had various documents, including the advice given after the retrial.  New counsel settled grounds of appeal.  These addressed the first trial, not the retrial.  The Court of Appeal spotted this.  Counsel then withdrew on the basis that he had not been given the relevant information, and the grounds could not be sustained.  A strong Court of Appeal, comprising the Lord Chief Justice, President of the QBD and Vice-President of the Criminal Division, dismissed the application summarily.  Without commenting in any way on the conduct of the new solicitors, it referred them to the SRA, indicating that if there were issues involving counsel, then the SRA would “no doubt consider whether they should refer the matter to the Bar Standards Board”.

Given the different circumstances in McCook, the Court took the opportunity to expand on what it said in Achogbuo:

This case illustrates … two matters.  First, it is always desirable to consult those who have acted before in a case where fresh counsel and solicitors have been instructed.  In R v Achogbuo … we stated that it was necessary to do so [1] where criticisms of previous advocates or solicitors were made, or [2] grounds were to be put forward where there was no basis for doing so other than what the applicant said.  Second, it is clear from this case that [3] we must go further to prevent elementary errors of this kind.  In any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so.  It is not necessary for us to enumerate such exceptional circumstances, but we imagine that they will be very rare.”  (all emphasis and numbering supplied)

The Bar Council is alert to the risk that budgetary constraints might lead courts to be tempted to place obligations on counsel to carry out additional tasks; tasks for which (unfairly) they may not be paid.  Here, though, I do not think that is the case.  Although the recent decisions recognise that duties were being identified clearly for the first time, this is likely to reflect what very many barristers will already have been doing.  The reference to “elementary errors” indicates the Court’s main target, and in most cases, the duty will not be onerous.  It should not have taken much in Achogbuo and McCook, for example, to find out what had really happened.

In response to these developments, the Bar Council’s Ethics Committee has reviewed the scope of the duties to the court of barristers newly instructed to represent convicted defendants on appeal.  This has thrown up some tricky legal and practical issues, both for barristers acting on an appeal and for those who acted at trial who are asked to respond to enquiries, including how to deal with client confidentiality, legal professional privilege, settling Grounds of Appeal, and waivers of privilege.

The result has been the publication of new guidance: “Criminal Appeals – duties to the Court to make enquiries” (available on the Bar Council website).  This is not formal, BSB ‘Guidance’, but we hope that it will help barristers to comply with their duties to both the court and their client (or former client).

We have included a checklist, and have also taken into account new procedures put in place by the Registrar of Criminal Appeals for dealing with breaches of these duties, and with cases in which the Court considers a waiver of privilege is required but none has been submitted.

I would encourage barristers to take heed of this guidance.  I hope that none get caught out.  And please do give us any feedback that you may have on its usefulness.  One of the most important roles of the Ethics Committee is to produce this type of document, designed to support barristers in meeting their ethical responsibilities.  Our work goes to the heart of why the Bar Council exists – both to support the Bar, and to help the Bar to perform its crucial role in the administration of justice.  We hope the Bar will agree that this recent guidance has been a worthwhile exercise on its behalf.

By Andrew Walker QC, Chairman, Bar Council Ethics Committee and

Bar Council Vice-Chairman 2017

© Andrew Walker QC

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