Role of the Advocate at Trial

In his final judgment in the Court of Appeal, Lord Justice Judge has given some interesting guidance given on the role of the advocate in a contentious trial. The case is R v Farooqi & Ors [2013] EWCA Crim 1649 and the judgment is that of the court.

The advocate whose conduct generated the appeal is named but declined to respond to the allegations. His version of events is absent from the judgment.

The guidance on the role of the advocate is so important it is worth reproducing parts in full:

107. ŠThe client does not conduct the case: that is the responsibility of the trial advocate. The client’s instructions which bind the advocate and which form the basis for the defence case at trial, are his account of the relevant facts: in short, the instructions are what the client says happened and what he asserts the truth to be. These bind the advocate: he does not invent or suggest a different account of the facts which may provide the client with a better defence.

108. Something of a myth about the meaning of the client’s “instructions” has developed. As we have said, the client does not conduct the case. The advocate is not the client’s mouthpiece, obliged to conduct the case in accordance with whatever the client, or when the advocate is a barrister, the solicitor “instructs” him. In short, the advocate is bound to advance the defendant’s case on the basis that what his client tells him is the truth, but save for well-established principles, like the personal responsibility of the defendant to enter his own plea, and to make his own decision whether to give evidence, and perhaps whether a witness who appears to be able to give relevant admissible evidence favourable to the defendant should or should not be called, the advocate, and the advocate alone remains responsible for the forensic decisions and strategy. That is the foundation for the right to appear as an advocate, with the privileges and responsibilities of advocates and as an advocate, burdened with twin responsibilities, both to the client and to the court.

109. In the trial process the advocate is subject to some elementary rules. They apply whether the advocate in question is a barrister or solicitor, and to the extent that the rules of professional conduct of either profession are not consistent, they should be made so. In the forensic process the decision and judgment of this court bind the professions, and if there is a difference, the rules must conform with the decisions of the court. By way of emphasis, in the course of any trial, like everyone else, the advocate is ultimately bound to abide by the rulings of the court. If a remedy is needed, the rulings are open to criticism in this court, and if they are wrong, their impact on the trial and the safety of any conviction can be fully examined. Although the judge is ultimately responsible for the conduct of the proceedings, the judge personally, and the administration of justice as a whole, are advantaged by the presence, assistance and professionalism of high quality advocates on both sides. Neither the judge nor the administration of justice is advantaged if the advocates are pusillanimous. Professional integrity, if nothing else, sometimes requires submissions to be made to the judge that he is mistaken, or even, as sometimes occurs, that he is departing from contemporary standards of fairness. When difficult submissions of this kind have to be made, the advocate is simultaneously performing his responsibilities to his client and to the administration of justice. The judge, too, must respect the reality that a very wide discretion is vested in the judgment of the advocate about how best to conduct the trial, recognising that different advocates will conduct their cases in different ways, and that the advocate will be party to confidential instructions from his client from which the judge must be excluded. In general terms, the administration of criminal justice is best served when the relationship between the judge and the advocates on all sides is marked by mutual respect, each of them fully attuned to their respective responsibilities. This indeed is at the heart of our forensic processes.

110. For the purposes of these appeals we shall highlight some of the further rules which appear to have been significantly infringed.

111. The advocate cannot give evidence or, in the guise of a submission to the jury, make assertions about facts which had not been adduced in evidence. That is inconsistent with the proper function of an advocate. The importance of the rule is particularly stark whenever the defendant elects not to give evidence in his own defence. Farooqi failed to do so, and we shall shortly address the complaint against Mr McNulty’s competence arising from this decision. Whatever the circumstances, the advocate cannot supply the evidence that the defendant has chosen to withhold from the jury. Self-evidently his function is entirely distinct from that of a witness. When the advocate confines himself to commenting on or inviting the jury to draw inferences from aspects of the evidence which has been given, this principle is not infringed. But as we have demonstrated in the narrative of the facts, Mr McNulty went much further.

112. Mr McNulty’s critical comments about prosecution witnesses were advanced without the witness (or the prosecution) having been given a fair opportunity to address and answer the criticism. The fairness principle operates both ways. The defendant must have a fair trial. It is however equally unfair to an individual witness to postpone criticism of his conduct until closing submissions are made to the jury, not least because if given the opportunity, the witness whose behaviour is impugned may have a complete or partial answer to the criticism. All this is elementary.

113. We do not suggest that the principle of fairness to the witness requires the somewhat dated formulaic use of the word “put” as integral to the process. Assuming that there is material to justify the allegation, “Were you driving at 120 mph?” is more effective than, “I put it you, that you were driving at 120 mph?” 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 Mr McNulty 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 to the jury.

114. One further aspect of the principle that the trial process is not a game is that the advocate must abide and ensure that his professional and lay clients understand that he must abide by procedural requirements and practice directions and court orders. The objective is to reduce delay and inefficiency and enhance the prospect that justice will be done. Ambush defence or arguments are prohibited.

There have been several comments on the judgment already elsewhere. If interested, take a look at Richard Moorhead, Dan Bunting and Simon Myerson QC.


About truelabour

Investigative Journalist/Researcher for major media. Exposing the truth and police corruption with in UK police service.Certain forces say their motto is Honesty & Integrity One must ask is it lip service or genuinely meant. CO-OP Labour Party member questioning is the party standing for working class of Britain. Trade Union Activist & promoting diversity,community cohesion within multicultural Britain. Anti fascist speaks out against all foams of discrimination.
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