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Farooqi Friday [It isn’t the art of examining crossly]

[I know, it’s Sunday, but I only just thought of the pun, and I can’t keep that back for another five days]. A correspondent pointed me towards R v Farooqi 2013 a few weeks back, and I found it very entertaining, but never thought I’d have a family law hook to hang it on – now I do, so thank you to the President for introducing me to a genuinely new experience – being pleased about something written in the View from the President.

If you yourself made it to the end of the View from the President Part Seven,

Click to access view-7-changing-cultures.pdf

you will have seen the President discuss a criminal case, and as we know, there is quite a lot of “cross-pollination” between Views from the President and judicial decisions made by the President.  They flow into one another, so expect to see this find its way into a decision in due course.

Skilled advocacy has a vital role to play in the family courts as elsewhere. I stand by everything I said in Re TG (A Child) [2013] EWCA Civ 5.
May I, however, draw to the attention of advocates in the family courts,for it is surely as applicable in family courts as in criminal courts,
a point made by Lord Judge CJ in his very last judgment:
R v Farooqi and others [2013] EWCA Crim 1649, para 113:
“What ought to be avoided is the increasing modern habit of assertion, (often in
tendentious terms or incorporating comment), which is not true cross-examination.
This is unfair to the witness and blurs the line from a jury’s perspective between evidence
from the witness and inadmissible comment from the advocate. We withhold criticism of
[counsel]on this particular aspect of his cross-examination because he was following a
developing habit of practice which even the most experienced judges are beginning
to tolerate, perhaps because to interfere might create difficulties for the advocate
who has been nurtured in this way of
cross-examination. Nevertheless we deprecate the increasing habit of comment or assertion
whether in examination in chief, but more particularly in cross-examination. The place
for comment or assertion, provided a proper foundation has been laid
or fairly arises from the evidence,
is during closing submissions”.

If you are like me, you will have written numerous times in your notes of someone else’s cross-examination “Submissions”  (possibly adding an exclamation point, or tutting audibly).  I for one, am hoping that we end up in the sort of law court we all day-dreamed of whilst slogging through land law and easements  – of hopping up like a Jack-in-the-Box to shout “Objection” and “I move that that remark be stricken from the record” during your opponents questions , perhaps ending up with wearing a white suit and a bootlace tie, whilst pacing around the Courtroom during cross-examination and speaking in a Louisiana accent.

What is this Farooqi case all about then? Other than allowing me to make a cheap pun (and many would say that that were reason itself to admire the case)

Well, it involves an appeal from a criminal case involving suspected terrorist activities, and the arrests were made largely as a result of intelligence gathered by undercover policemen (a topical issue for discussion, I wish I were a criminal lawyer so I could talk about it more in-depth). In essence, the problem in the case was the attempt by one defence counsel to run a defence of entrapment, which for complex reasons beyond the scope of this blog, wasn’t really open as a defence.  [I should point out, to be fair to counsel who is being criticised here, that the fundamental nature of the defence was that it had been the undercover officers who had made all the running, so there was a fine line to be trod about making that defence and running a defence of entrapment – it’s not a line I would have been able to tread so it has to be bourne in mind that this was a very difficult situation]

This led to these sorts of exchanges :-

(a) “Q. Well, what I suggest to you is this: that from at least mid January 2009, that that was your style? That you were trying to take advantage of Munir Farooqi’s good nature, so that you could do him harm by attempting to trick him into committing an offence. Is that right?

A. No, sir, it’s completely incorrect. I was playing the part of a role that I had been asked to do so, that had been authorised by a senior officer, and one of my objectives was to play the part of a vulnerable person with low social ties, and I did that throughout the course of the operation.

Q. And I suggest that in pursuit of conviction, while you have been in that witness box, it has been your purpose to deceive the jury by painting a false picture of your relationship with Mr. Farooqi. You have lied in short, is that correct?

A. It’s certainly not the case. I have sworn an oath. I am a professional undercover law enforcement operative, and in doing so, I have answered every question which I believe to be correct, which I have signed a statement to that effect.

Q. You are a professional law enforcement undercover officer?

A. I am a police officer. I am a professional police officer, yes.

Q. Yes, you are a professional liar, putting it bluntly?

A. I use tactics as such as an undercover law enforcement operative to carry out my role. Yes, I do lie in the role of an undercover law enforcement operative, but on this occasion I have sworn the oath and I have answered every question which I believe to be correct.

Q. So you deny both propositions I have been putting to you, that you have been attempting to trick him and that you have been lying on oath, so therefore I had better prove those propositions

(b) “Q. And over the next eight months you were going to encourage him at every opportunity to talk about his experience in Afghanistan, were you not?

A. No, sir, and I didn’t.

Q. And you and Simon were going to play word games with a man who was ignorant of the fact that he was in peril, in order to trick him to giving you some encouragement by way of document, advice or assistance?

A. I can only answer for myself, sir. I can’t answer for another undercover law enforcement operative, but in answer to your question, that’s no.

Q. And the purpose of that was to enable you to arrest him?”

(c) “Q: Now earlier on in my cross-examination of you, I drew your attention to the fact that some people feign difficulties, so that they can assault, rob or rape people who come to their assistance. What I am suggesting to you is you feigned inadequacy, in order that you could steal from Mr. Farooqi, in order that you could steal his liberty. Is that not right?

A. No, it isn’t, sir”

(d) “Q. And what I am suggesting to you is whether or not he was sending people or engineering for people to go abroad to participate in violent conflict, was a matter of no interest to you in late January of 2009. In late January of 2009 you were hell bent on tricking this man into committing an offence?..

Q. What, and we can trust you, can we?

A. Er, yes, fully.

Q. A professional liar?

A. Erm, I am not a professional liar.

Q. Right. Now I think we agree that you do tell lies professionally when you are engaged as an undercover officer?

Q. You were cynically exploiting the death of that man, in order to excite either hostile feelings or hostile words against the police, were you not?

A. No.

Q. So that it might be deployed later in evidence?

A. No.

Q. And it is as an example of many examples of how poisonous and devious you can be, seeking out your aims?

    1. The judge intervened during the cross examination on a number of occasions. Mr Bott refers to one example, during the cross examination of Simon on the 13 July 2011, which we set out in its context:

“Q: Well, you say to respect people’s human rights, but you never had any right to enter his premises, did you?

A. Er, yes, I did.

Q. How so?

A. He invited me in.

Q. He never invited you in?

A. I think you will find the first time I ever met Munir on the 4th of January, he invited me to come to his house for something to eat. He wrote his address down, he give me his telephone number.

Q. No, no, no, no, he never invited you?

A. He did.

Q. He invited the person you were pretending to be?

A. Which is me.

Q. He invited the person that was interested in Islam in.

J: Mr. McNulty.

LM: He invited the person who had a history of alcohol abuse in?

J: Mr. McNulty.

LM: My Lord. He never invited you in?

A. Erm, I was portraying to be a normal member of the public. If it wasn’t me that Munir had invited in and radicalised and encouraged to go and fight Jihad, it would have been another vulnerable member of the public from Manchester, so in respect of me attending his address, I feel that my main hope is that I have stopped a vulnerable individual from Manchester being radicalised by Munir and others.

Q. But you never believed for one second that if he knew who you really were you would be invited to his premises, did you?

A. Of course not.

Q. No?

A. If I told him I was a police officer, he definitely wouldn’t have invited me.

AE QC: My Lord.

J: Yes.

AE QC: My learned friend is misleading the jury about the law again.

J: Yes.

AE QC: Because what he is implying from his position as Counsel in his question is that the fact that the officer was going under an assumed alias, means that the invitation which was extended to him did not create a right to enter, and that is, I am afraid, not the law.

J: Of course. It —

AE QC: I am sorry about that, but it is just not.

J: Mr. McNulty, more than one member of the jury was actually shaking his or her head whilst you took this point.

LM: Well, let us see.

J: Mr. McNulty, I am not going to permit it. It is a complete waste of time. It is ill conceived in law, and please move on. He was perfectly entitled to enter those premises. Any suggestion that he was not is wrong in law.

LM: Well, then I suggest as a matter of fact you were no different to the man that pretends to come to read the gas meter, who is really there to steal the old lady’s pension?

J: No, Mr. McNulty. Mr. McNulty, that is exactly the same proposition put in a different way. He was entitled to enter those premises, and that is the end of the matter.

I don’t think I’ve ever enjoyed a sentence in a judgment (though the “finders-keepers” exchange in the Richard II burial judicial review comes close) as much as the Judge here saying “More than one member of the jury was actually shaking his head whilst you took this point”

And culminating in this, during defence submission – I didn’t think the suggestion was “thinly veiled” at all – it was pretty out and out.

Mr McNulty’s closing speech

    1. Mr McNulty made his closing speech to the jury over the course of three days, the 16th, 18th and 19th August 2011. Mr Bott describes it as a defiant and provocative speech which went well beyond anything that was professionally acceptable. A number of specific matters illustrate the submission.
    1. The speech began with what is described as a “thinly veiled” suggestion that the judge was biased in which Mr McNulty encouraged the jury to regard the judge as a salesman of worthless goods:

“After all when you meet with a salesman , he does not start off his sales patter by insulting you but…that does not mean what he is selling you is worth anything.”

    1. Secondly, from the outset Mr McNulty attacked the motives of the Crown and others concerned with the case and encouraged the view that the Crown was a politically motivated witch hunt. The judge and the Crown were depicted as the agents of a repressive state: the purpose of the Crown was to stifle Farooqi’s right to free speech. Other parties who did not agree with his approach, and their counsel were accused of sucking up to the Crown and the court.
    1. Thirdly, Mr McNulty misrepresented the evidence on a number of occasions. He repeatedly gave evidence himself on behalf of Farooqi, which was later summarised by the trial judge, and to which we refer later in this judgment. He made significant allegations that should have been but were not put to witnesses in cross-examination, in particular that the evidence against Malik had been contrived because the police had no evidence that Farooqi had influenced anyone except the undercover officers. This led to a number of interventions from the judge on the first afternoon, (at the end of which Mr Edis raised the propriety of Mr McNulty’s suggestion of judicial bias) and then again on 18th August when the judge said; “You are giving evidence that could have been given by your client and it must stop”. “This cannot continue.”
    1. Mr McNulty said he was addressing the issue of Farooqi’s intention, to which the judge said: “The way he tells us what his intention is by going into the witness box.”
  1. At the end of Mr McNulty’s speech, Crown counsel gave notice that they were considering making an application to discharge the jury. The judge responded that he was not surprised, and that he had been considering the possibility of doing so of his own motion. The court then adjourned whilst the Crown considered its position.

About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

9 responses

  1. In case you want more of this drama

    The judge went on to deal with the matters in Mr McNulty’s closing speech which required correction. These included allegations of judicial bias, the giving of evidence in the closing speech, allegations made and not put to witnesses, the canvassing of the non-existent defence of entrapment by reference amongst other matters to secret police and conspiracies, and the allegedly improper motivation for the Crown.

    In view of their importance to the appellants’ case, we set out some examples of the corrections made by the judge, using his language for this purpose:

    a) “The first matter I have to correct is the warning that Mr. McNulty issued as to the possibility of undue influence or judicial bias. As to the latter, he said this: “There is a tendency to assume that just because a Judge does not represent the Crown or the defence, that he is not biased in one way or the other …. I am sure that is the position and I am sure that will be the position here, but, Members of the Jury, history has taught us that that is not always the case, and no jury should ever assume it is so.

    b) Now if Mr. McNulty is sure that there will be no bias in this case, there can be no purpose in making this observation. If he thinks I am biased, then he can apply to me to disqualify myself, and if I refuse and he had any evidence of bias, he could go to the Court of Appeal and the Court of Appeal could order a retrial between another Judge and another jury, but he has already told you that he is sure I will not be biased, and so why raise the issue? He should not have done so….

    c) My role or the role of the judiciary in general, I know not which, was likened to that of a salesman, who may be friendly, “But that does not mean”, said Mr. McNulty, “that what he is selling is worth anything, does it?”
    Now that is a form of courtroom anarchy…

    d) Mr. McNulty in due course said that the only thing between Munir Farooqi and an improper conviction “is me and a fair minded jury.” Well, this could be said, taken literally, to be an invitation to you to find the defendant not guilty, because a conviction would be improper. It plainly misleads you as to my role. One of my functions is to protect defendants from improper verdicts, an important judicial role. It is also the Crown’s role to protect defendants from improper verdicts. A flawed verdict which will be set aside is no good to the Crown. We have a Court of Appeal to protect defendants from improper verdicts, and beyond that a Criminal Cases Review Commission. Your function is to decide the case according to the evidence, and so please ignore any exhortation which misstates our respective roles…

    e) It was submitted in his speech to you by Mr. McNulty, that there was a conspiracy to entrap both Israr Malik and Munir Farooqi, and it was contended by Mr. McNulty that by reference to the date of arrest, that Israr Malik has been manufactured as a victim/perpetrator to shore up a false case. They have put him in the dock alongside Munir Farooqi. The operation was not complete until they put Israr Malik in the dock.

    f) Now that is a considerable accusation to make, and one which if it was to be made, should have been put to Detective Chief Inspector Richardson, the senior investigating officer when he was in the witness box, so that he could deal with it. He has had no opportunity of dealing with what is a very grave allegation… Counsel simply cannot wait until his closing speech to make such an allegation because the Crown have no way of answering it or dealing with it.

    g) What I can tell you is this: that there is simply no evidence of any such improper motive, and as I have told you, you must assume that this was a lawful operation. As I have told you, there is no defence of entrapment…the defence here is not that the defendant was entrapped. It is that he committed no criminal act…

    h) Mr. McNulty went on to submit that this case was all about freedom of speech, the implication being that the Crown were motivated by malice and a desire to stop free speech. If the defence had wished to assert that this operation was undertaken to prevent Islam being preached or advanced from Da’wah stalls in the city of Manchester, then it was Counsel’s duty to give the officers responsible for the Crown an opportunity to answer the allegation when Detective Chief Inspector Richardson was in the witness box…

    i) Mr. McNulty went on to assert that there was an unpleasant smell of racism about the Crown, and that the Crown had alleged that Munir Farooqi was motivated by racism. The only possible assertion touching upon race was the allegation that white persons were being targeted as potential reverts, and thus potential recruits.

    j) I regret to say that by raising judicial bias, undue influence, a false racist allegation, a desire to prevent freedom of speech, secret police and a conspiracy involving senior officers, a series of false allegations have been made which should not have been made, and they are compounded by an exhortation made to you as to the way you reach a verdict…

    k) It is legitimate in a closing speech for Counsel, even when his client has not given evidence, to make submissions about what inferences may be drawn from the evidence as to his client’s motives and intentions. What is not legitimate is for Counsel to make positive assertions on his client’s behalf which could have been made in the witness box….

    l) The next matter about which a positive assertion was made by Counsel and in respect of which no evidence was given by Munir Farooqi, namely counts six and seven, is where Mr McNulty made this positive assertion which was a repeated assertion, “We are now going to turn to the last two counts, which relate to the 15th and 16th October. These conversations are very different, and as I have said to you previously, in effect they are part of a single ongoing conversation which begins on the 13th October, when Munir Farooqi is clearly talking about jihad and the end of the world…

    m) Now of course I sounded partial in that passage, because I had to correct what had taken place. Had this assertion been made during the evidence, or had Mr. Munir Farooqi gone into the witness box and said “I was talking about the end of the world on the 15th and 16th of October”, everything I have just said to you would, I have no doubt, been said to you by Mr. Edis. I do not appreciate being put in this position of having to make all these corrections, because it makes me sound partial, but if these points are not made to you, then a jury paying less attention than you might say “Oh well, maybe he was talking about the end of the world.…

    n) The only person who could say the three brothers were a fiction was Munir Farooqi from the witness box saying he lied about them. Again you may think this was an attempt to write out those three men from the script, and to cause you to question whether or not they existed, and when there is plain evidence that they did exist, uncontradicted from any source, you are entitled to assume that they did…

    o) The only person who could evidence that these stories were designed to deter jihad rather than encourage jihad was Munir Farooqi because that was what was in his mind, if it was…Munir Farooqi would have been asked to his face was he encouraging or was he discouraging jihad. That is why these matters have to be raised by defendants and not by their Counsel, so they can be asked about them…

    p) Towards the end of his speech, Mr. McNulty devoted a substantial passage to asserting that passages of [what] Munir Farooqi [said] were abstract and part were concrete. Again, the only person who could say whether he was speaking in the abstract or the concrete was Munir Farooqi.

    q) It is very simple. You must decide his case on the evidence that you have heard. Nothing that Mr. McNulty said in his closing speech was evidence. Whilst he can invite you to give the natural ordinary meaning to everything in the transcripts, Counsel cannot give an explanation which requires evidence to take you outside or beyond the ordinary natural meaning of the words in the transcripts. Without any evidence from Munir Farooqi, you decide the case on the Crown evidence, together with the evidence of the witnesses that he has called.”

  2. Allow me to lower the tone: it’s what I do best.

    This tale goes back thirty years to a trial in a magistrates’ court of a lady accused of assault PC – the officer had come to arrest her son and she had other ideas. Counsel was cross-examining him:

    COUNSEL: You say my client pulled your tie?
    WITNESS: Yes, Sir.
    COUNSEL: I am instructed that you were not wearing a tie.
    WITNESS: Sir, I was in full uniform which includes my tie. Of course I was wearing it.

    A bit later:

    COUNSEL: You say my client smashed your radio?
    WITNESS: Yes, Sir.
    COUNSEL: I am instructed that you were not carrying a radio.
    WITNESS: Sir, the radio is an essential part of my equipment, and I was carrying it.

    And a bit later:

    COUNSEL: You say my client kicked you in your testicles?
    WITNESS: Yes, Sir, and I can’t wait for your next question!

    As Punch would say, collapse of stout party.

  3. Is this one dedicated to me and my complaints last week?


    • Yes, I have seen Mr McNulty’s comments on another similar article about the case. It is obviously a fine line to tread – the Court of Appeal felt he was well over that line, but of course he wasn’t represented or at the Appeal hearing, and fresh counsel instructed by Mr Farooqi obviously had to play the man and not the ball on this one. My own gut feeling is that Tooks don’t employ chumps, this isn’t counsel fresh out of bar school (there some legitimate issues at the moment about the way undercover stings are constructed) and that there might well be a bit more going on behind the scenes than a simple reading of the Court of Appeal judgment would show. (Having said that, if the closing speech did compare the Judge to a salesman… well)

  4. Interesting, because you do have to put your clients case.

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