ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Trial 407
appropriate resources or necessary competence. The ruling, however, was binding
on the solicitor, as it was on the barrister, and indeed everyone else involved in
the conduct of the case. In the context of the conduct of criminal litigation, the
solicitor was an officer of the court. He had an obligation to the court to comply
with its orders, and to do his best for his client in the light of those orders. Neither
barristers nor solicitors in such circumstances would be in breach of the rules of
their profession, nor acting improperly or negligently, if the worse that could be
said was that they were doing their best to comply with orders of the court which
made it impossible or difficult to look after the client’s interests to the standard
which, without those difficulties, they would normally be expected to achieve. In
the present case, the decisions of the new teams of barristers and solicitors were
wrong. However, in all the circumstances of the present case, and in the light of
the strength of the prosecution case, the conviction was not unsafe.
Cases considered: Jones [2002] UKHL 5; [2002] 2 Cr. App. R. 9; G [2004]
EWCA Crim 1368; [2004] 2 Cr. App. R. 37; Al Zubeidi [1999] Crim. L.R. 906.
[Reported by Vanessa Higgins, Barrister]
Benjamin Aina for the defendant.
Charles Garside, Q.C. and Roger Smart for the Crown.
Timothy Cray for the General Council of the Bar.
Bruce Holder, Q.C. for the Law Society.
Commentary. Article 6(3)(c) of the European Convention on Human Rights speaks
of an accused’s right to defend himself in person or through a legal representative
of his choosing. However, the danger of a defendant rejecting counsel on spurious
grounds in an attempt to prolong and frustrate the trial cannot be ignored. To prevent
a trial being derailed may, on occasion, demand fairly robust control by the trial judge
but that may be necessary to ensure fairness to all parties in the proceedings including,
in this case, other defendants. There may be occasions such as the present one when
defendants completely change their instructions to counsel at a late stage in the trial,
placing counsel in a very difficult position. Whether counsel choose to continue to
represent the defendant or feel that they are so professionally embarrassed that they
cannot continue with the case must be a decision for counsel to take. This has been
recognised as such in numerous cases, including GandB[2004] EWCA Crim 1368;
[2004] 2 Cr. App. R. 37; Jones (No.2) (1972) 56 Cr. App. R. 413; Shaw (1980) 70
Cr. App. R. 313. Given that counsel will invariably be better informed than the judge
and that there may well be considerations that counsel is unable to reveal, it is difficult
to envisage a scenario in which the judge would direct counsel to continue or refuse
permission to withdraw (for the provision of legal representation at public expense
and the grounds for an application for a change of representative, see the Criminal
Defence Service (General) (No.2) Regulations 2001, reg.16). If defendants do seek to
change their legal representative then the judge should ensure they are clear in the
decision and that any adverse consequences of such a change are minimised for all
involved in the trial, for example through an appropriate adjournment. However, the
judge should not engage in an investigation of the decision which would, for example,
involve personal discussions with defendants as the potential for bias in this approach
is all too apparent.
In most circumstances when defendants seek to change their representative the
court will permit this, however, each case inevitably turns on its own facts though a
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