Simon Myerson QC has written a defence of the Court of Appeal’s decision to uphold the Farooqi convictions referred to in my previous post. He has kindly given me permission to post it as a full post.
I have left this comment on Dan Bunting’s blog as well. I think the Court got this one right. I also agree with your analysis. Personally, I make it a practice to discuss strategic matters with the client, particularly if – as sometimes happens – a suggestion is to be made to the jury that a Judge or witness has behaved unfairly. I do so in order that a client is not disadvantaged by my decision by not being able to dissent from it, and in order to tell the Judge (if asked) that I am acting on instructions.
The difficulty is that there seems to have been no ground of appeal that McNulty was not acting on instructions. It seems to have been the defence that this was entrapment of someone who would not otherwise have actively promoted terrorism. Farooqi did not give evidence, so there was no testing of that proposition via his own words.
Was he properly advised about that? Apparently, yes. He signed the appropriate documents and, more importantly, he made an obvious tactical decision in the face of overwhelming evidence that he was an active jihadi recruiter.
What was then done to deal with the obvious problem of a man who admitted saying the words, but whose defence was that he lacked intent? The answer appears to be to try and pick a fight with the Judge and persuade the jury that the defendant was a victim. The Judge – too canny by about 20 times to fall for that – treated it all with politeness and then corrected the impressions. He did so in a way that expressly told the jury to conclude that this was a frolic of counsel’s own.
In fact, as those of us with experience of long and fraught criminal trials know, that is possible but unlikely. Farooqi therefore, rightly, had the benefit of the doubt.
In the Court of Appeal the question is whether the subsequent conviction is safe. On its face, it is. The Court held that the jury was properly directed and that the tactic of which complaint was made – namely that of accusing the Prosecution and the Judge of being a conspiracy to convict an innocent man – was not to be attributed to the accused. Did the jury disregard that warning? There is nothing in the Judgment which would support that conclusion.
That, then, leaves the question of whether there was – in fact – another defence which, but for the behaviour of McNulty, would have been put and which would have made the conviction unsafe. It is at that point that Farooqi’s failure to provide any evidence sinks his appeal. The Court was being asked to speculate that the conviction was unsafe: it was not being addressed on evidence. No appellant can expect to advance that argument and then sit back and say the thing speaks for itself. In this appeal matters went even further: McNulty’s silence may be attributed to self-preservation, but the Judgment makes clear that none of the legal team assisted Farooqi. The Court would, I think, have been justified in inferring that this was a decision in which everyone’s silence reflected personal responsibility. They did not: they relied on the one solicitor to give evidence, who made it clear that the decisions about giving evidence were uncontroversial.
The conviction is therefore safe. Whether this was the tail wagging the dog and a complicit legal team assisting a client to try and wreck a trial may never be known. The Court concluded – safely – that it was the other way round and that the client was given appropriate advice, after which McNulty decided to seek confrontation in the hope of creating sympathy. That did not work, but that is not a basis for appeal. If Farooqi had been disadvantaged to the extent of the conviction being unsafe because some alternative defence was not run, he had every opportunity to say so.
As for Judge’s dismissing counsel, I am surprised that anyone would consider this reasonable. In a civil case it might – just might – be ok for a Judge to say that justice is not being done. Even then it is difficult to reconcile a red card with Article 6. In a criminal case it is axiomatic that the Judge – the representative of the system – should not tell an accused who can and cannot represent him. The very process of reasoning involved in such a decision invites the Judge to determine matters of fact (such as the prospects of conviction), which Judges are expressly enjoined not to do.