Appeal due to ‘incompetent’ representation (appeal refused)

I think we’re all familiar from American movies and TV shows with the concept that you can overturn the result of a legal case if your representation was so poor that it resulted in a mistrial. It’s actually very rare in England. This is a criminal case where the person convicted of his wife’s murder sought to appeal on exactly that basis.

I’d best make it clear from the outset that the Court of Appeal decided that the representation was not sufficiently incompetent to make the conviction unsafe, but they did have quite a lot to say about it and suggested that the Bar Standards Board take a look at the case. I will absolutely stress that as a result, the Court of Appeal have made NO findings about Mr Wolkind QC’s conduct or competency, and the Bar Standards Board have not even considered the case yet. So I am simply reporting what was described in the case.

R v Ekaireb 2015

http://www.bailii.org/ew/cases/EWCA/Crim/2015/1936.html

Mr Ekaireb was convicted of his wife’s murder in 2006. His wife’s body was never found, nor did anyone find blood or a weapon. There were two possible accounts – either his wife left him extremely suddenly and nobody has ever seen her again, or he murdered her.  That’s a difficult murder trial to run, because it is going to be based on looking at every scrap of circumstantial evidence and building on it if you are the Prosecution, or knocking it down if you are the Defence.

The legal test on an appeal being allowed due to incompetence of representation is :-

• It was agreed that the law relating to the basis upon which an appeal against conviction grounded upon the incompetence of the advocate should be considered was correctly stated by Buxton LJ in R v Day [2003] EWCA Crim 1060 at paragraph 15:

“While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.”

• At paragraph 52 of the decision of this court in R v Bolivar & Lee [2003] EWCA Crim 1167 the then Vice President, Rose LJ, had expressed the test:

“Professionalism requires that a barrister should do his job properly, disregarding such matters. Of course, if his performance on behalf of a client is affected by such matters, different considerations apply. Hence, in our judgment, the test to be applied in relation to a barrister’s conduct, is: was it Wednesbury unreasonable and such as to affect the fairness of the trial?”

Both counsel submitted that the formulation was not apposite to the present case because that concerned advocacy affected by the personal circumstances of the barrister. We agree. In any event, the formulation by Buxton LJ is the more modern formulation. It is simpler to apply; it avoids consideration of how Wednesbury unreasonableness is to be applied to the conduct of an advocate; and it is more in accord with the formulation approved in a judgment of the Privy Council in Sankar v. State of Trinidad and Tobago [1995] 1 W.L.R. 194 at 200F–G.

It isn’t relevant that the client wasn’t impressed, or that he didn’t like the tactical decisions or style, or that another barrister might have done better – the performance has to be so flagrantly incompetent that it made the process unsafe , because of identifiable errors or irregularities in the trial.  As far as I’m aware, there isn’t a reported case in care proceedings of a decision being overturned on an application of incompetence of representation, but I’m fairly sure that the Court would make use of this high test if one were made.

It certainly wasn’t a great start for Mr Wolkind QC, who had been selected by the client as a result of reading his website http://www.topcriminalqc.co.uk/ rather than through chambers website.

• The trial was originally scheduled to begin on 7/8 October 2013, but then moved back to 21 October 2013. On 10 October 2013 Mr Wolkind informed his solicitor and the appellant that the first conference would be on 14 October 2013. The conference was brought forward as a result of the reaction of the appellant and his solicitors. In an e-mail of 9 October 2013, Mr Kaye reported that he was very concerned that Mr Wolkind was, “far from up to speed and was not concerned about that being obvious”. There was nothing that called that assessment by an experienced solicitor into question.

What were the alleged irregularities here?

• It was the submission made on behalf of the appellant that where the prosecution case was based entirely on circumstantial evidence, the defence depended on competent cross-examination of the witnesses called by the prosecution, competent advice on whether the defendant should give evidence, competent examination of the defendant and a very carefully prepared speech for the defence. We are satisfied that Mr Wolkind told Mr Skelley on a number of occasions that it was a closing speech case.
• It was not suggested that Mr Wolkind was incompetent in the following respects:

i) His advice on tactics.

ii) His advice on calling witnesses, including the appellant.

iii) His challenge to the admissibility of evidence.

iv) His cross-examination of the witnesses called by the prosecution.

v) His preparation for calling the appellant and his examination in chief of the appellant.

vi) His agreement to the extensive agreed facts which were put before the jury and to the witness statements which were read to the jury.

• The case for the appellant presented by Mr Orlando Pownall QC was that Mr Wolkind’s incompetence related to the final speech for the defence and fell into two categories:

i) a ‘severe criticism of style’ which itself amounted to incompetent representation in that he:

a) failed to present the defence in an appropriate and focused manner;

b) often resorted to patronising the jury, conducting personal attacks on counsel for the prosecution. He indulged in a number of inappropriate attempts at humour which were bound to alienate the jury;

ii) a failure to confront the matters advanced by the prosecution by displaying (as had been reflected in submissions of no case to answer and in his opening submissions), a reluctance fully to engage with the issues before the jury in stark contrast to the detailed way in which the prosecution had advanced the case.

It was contended that Mr Wolkind had made the speech he did as the result of his failure before and during the trial to prepare himself properly for the trial and his lack of engagement in the trial and his doing of other work during the period he should have devoted himself to the defence of the appellant. He had substituted for proper preparation a speech that failed to rebut the case for the prosecution and relied instead on inappropriate diversions.

You can perhaps see that in a murder trial based on circumstantial evidence, that if the silk keeps telling the junior, solicitor and client that it is a “closing speech case” then you are probably leading them to expect that your closing speech is going to be great. In fact, the client sacked the silk after the closing speech was made (before the jury had retired to consider the case). It’s probably also not a great plan to turn up late on the day that you are going to be giving that closing speech. Also probably not great to have got other work in your diary on the day you are supposed to be delivering said speech – it sort of gives an impression that you are keen to get it done and dusted.

• Before turning to the closing speech, it is necessary to refer to Mr Wolkind’s conduct during the summing up. Very little of the summing up was delivered on Friday 13 December 2013, as a juror became ill. When the judge resumed on Monday 16 December 2013, Mr Wolkind arrived part of the way through the morning and then left during the course of the afternoon. The appellant decided in those circumstances to terminate his instructions to Mr Wolkind and to continue with Mr Skelley alone. Mr Wolkind told us that he had been late because of a delay in a video conference he had arranged, according to his diary, for 10:00 for another case, where the defendant was held in prison. His diary showed that at 15:00 he had a meeting in another case. The consequence of Mr Wolkind’s dismissal was that he was not present on the following day when there was an exchange between Mr Altman and the judge about the answers of the defence to the detailed case made by the prosecution. We refer to this at paragraph 48 below.

The speech itself (and gosh, I wish they’d printed it in full). Mr Skelley is the entirely blameless junior (who had sent very detailed notes of suggestions for the speech on detailed points)

(d) An analysis of the speech

• Mr Altman QC who appeared on the appeal for the prosecution helpfully provided us with a detailed analysis of Mr Wolkind’s closing speech. From that analysis and our detailed consideration of the closing speech, the following emerges:

i) There were six themes of criticism of the prosecution case that formed the basis of Mr Wolkind’s speech: (i) “random attacks”, (ii) “speculation”, (iii) “pet theories”, (iv) “prejudice”, (v) “distortion” and (vi) “mistakes”.

ii) The speech was developed round these themes. All the points that had been put forward by Mr Skelley in the three documents to which we have referred, were incorporated, sometimes with specific attribution to Mr Skelley, but there was little more.

• We have asked ourselves the question, therefore, whether the speech can be described having reached a level of incompetence that called into question the safety of the conviction or the fairness of the trial. We cannot so describe it. Although it will be for others to consider wider issues, it was a speech that covered the points and it had a structure, however ill-judged the themes and the structure might have been. We accept as amply justified the criticism made by Mr Pownall that it was ill-judged, patronising and contained inappropriate attempts at humour. It also contained observations about prosecuting counsel which, as Mr Skelley told us, were completely unprofessional; no advocate should have put these observations into a speech, as we shall observe at paragraphs 59 and following below. However it did not reach a level of incompetence that called into question the fairness of the trial or safety of the conviction.
• As we have reached that view, it would not be appropriate for us to make more general findings in relation to Mr Wolkind’s lack of preparation and conduct of the case. That must be a matter for the Bar Standards Board to which we direct the matter be referred.

The Court of Appeal were NOT satisfied that the case met the test for saying that the conviction was unsafe as a result of failures or irregularities in the process, but did, as I outlined at the beginning make some comments, set out below.

Concluding directions observations

(a) Websites

• Our attention was drawn to Mr Wolkind’s personal website. We were surprised at its content and tone. However whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration.

(b) Carrying out other work

• We have had to make some express findings in relation to other work that Mr Wolkind was carrying out during this very complex murder trial. The fact that Mr Wolkind was doing so plainly caused the appellant very considerable concern and led to his dismissal of Mr Wolkind. However, it would not be right for us to make any observations. The terms upon which any barrister, particularly one of Her Majesty’s counsel, is free to engage on other work during the conduct of a case is a matter for the Bar Standards Board, subject to an overriding duty to the court in respect of the case before the court. We therefore direct that general issue be referred to the Bar Standards Board for their consideration.

(c) Defence closing speeches

• Unsurprisingly we were not referred to any decided case in which an incompetent defence speech has provided the grounds for a successful appeal. As was demonstrated in Farooqi the trial judge has the responsibility and ample scope to ensure that a defendant’s case is accurately before the jury. That task may involve correcting or amplifying a closing speech. Should that prove impossible it may, in an extreme case, be necessary to discharge the jury. In the present case no such criticism has or can be made.

(d) Personal criticism of opposing advocates in addresses to the jury

• Finally, there is one feature of the conduct of this case which judges must ensure ceases immediately and not be repeated in any case. That conduct is making in an address to the jury personal criticism of opposing advocates in contradistinction to criticism of the prosecution case.
• We were told that the practice of making personal criticism of prosecution advocates has become a feature of some addresses to the jury made by defence advocates. In this case the personal criticism of Mr Altman and Mr Little by Mr Wolkind should not have been made in his addresses to the jury.
• If any advocate has a criticism of the personal conduct of an opposing advocate that is a matter that should be raised before the judge who will deal with it then and there, though, in what we hope would be the rarest of circumstances, it could be referred to the professional disciplinary body.
• The conduct of a trial before a jury requires proper and professional conduct by all advocates in speeches to the jury. As any personal criticism of the conduct of an opposing advocate is a matter for the judge, it can form no proper part of an address to a jury. The regrettable departure from proper standards of advocacy by making personal criticisms of advocates of an opposing party in an address to the jury must therefore cease. No court will tolerate its continuance.