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Spotlight: R v Farooqi [2013] EWCA Crim 1649

by Amanda Yip
11 December 2013

What’s happened?

Professional development at all stages of an advocate’s career should focus on the dual responsibility to the client and to the court. This is not an old-fashioned, out-of-date notion; it lies at the very heart of what it means to be an advocate.

On 30 September 2013, Lord Judge gave his last judgment before retiring as Lord Chief Justice. Sitting with Lord Justice Treacy and Mrs Justice Sharp, who also contributed to the judgment, he delivered a stinging criticism of the conduct of one of the defence counsel in a terrorism trial, R v Farooqi [2013] EWCA Crim 1649. An appeal was pursued on the basis that the misconduct and alleged professional incompetence of the advocate had rendered the convictions unsafe. The appeal was dismissed, it being concluded that the trial judge had managed to ensure a fair trial despite the very real difficulties caused to him and the administration of justice by counsel’s conduct.

Why is it important?

The Court of Appeal used this as an opportunity to discuss at length the duty owed by advocates to the court and to disapprove of modern myths and habits creeping into trial advocacy. To that extent, the case is relevant to advocates at all levels and across all jurisdictions. The elementary rules to which an advocate is subject were expressly stated to 'apply whether the advocate in question is a barrister or solicitor'.

How does this fit into existing law and practice?

There is no new statement of law to be found in this case. Rather it serves as a reminder of the 'privileges and responsibilities of advocates' and the burden of 'twin responsibilities, both to the client and to the court'. The Court of Appeal recognised that different advocates will conduct their cases in different ways and that there has to be a wide margin of discretion about how best to conduct a trial. However, it disapproved of what it regarded as a developing myth that an advocate is the client’s mouthpiece, obliged to conduct the case in accordance with whatever the client’s instructions are. It also issued guidance about questioning witnesses, deprecating what it described as 'the increasing habit of comment or assertion whether in examination in chief, but more particularly in cross-examination'. This, it said, was a habit which even the most experienced judges were beginning to tolerate.

In what ways does this affect practitioners?

This case was clearly intended as a firm warning to both branches of the profession. It is clear that the criticism extended beyond this individual case and seemed to reflect a perception that professional standards in advocacy are declining. There is a clear message from the top that such a decline will not be tolerated and that bad habits should be stamped out.

What, if anything, should I be doing differently as a result?

Civil and family practitioners might not generally read the criminal law reports, but this a judgment that ought to be read and considered by every advocate. Professional development at all stages of an advocate’s career should focus on the dual responsibility to the client and to the court. This is not an old-fashioned, out-of-date notion; it lies at the very heart of what it means to be an advocate. It is not always an easy balance to strike and sometimes even the most experienced advocate will need to take soundings from colleagues as to how to find the right balance when conflict seems to arise. New advocates should be mentored in the art of advocacy and take pride in developing the skills that allow them to navigate their responsibilities while presenting the client’s case efficiently and effectively. Advocacy is a privilege and an art. Standards are high in this country. We must not allow them to decline.

About the author - Amanda Yip

Amanda Yip QC of Exchange Chambers is an experienced personal injury and clinical negligence practitioner and a Deputy High Court Judge.