Poor representation by lawyers – appealing against conviction
Criticisms of trial lawyers is an issue that the Appeal Courts come across very frequently and often features as an individual ground of appeal. This article does not seek to dissuade applicants from raising such issues, but rather to specify the tests applied by the Courts and to identify what any complaint will trigger by way of investigation.
A good proportion of those reading this can probably say that somewhere during their trial Counsel just didn’t perform. In some cases, criticism can be made of the way in which the case was prepared for trial. The fact is that lawyers are quite capable of making mistakes, and often do. The difficulty is always identifying ‘conduct’ which is capable of forming the basis of an appeal. To allege that ‘my Barrister wasn’t any good’ or ‘my Solicitors didn’t really do much for me’ is a common complaint, but one which very rarely succeeds as an appeal ground.
In past times, the Court of Appeal would only intervene where the conduct of the Solicitor and/or Counsel had been ‘flagrantly incompetent.’ In relation to tactical decisions, intervention only seemed possible when it could be shown that the decision complained of was taken ‘in defiance of or without proper instructions’. Later tests for establishing incompetence adopted the ‘Wednesbury unreasonable’ approach, i.e. when the decision taken was one that no reasonable counsel would have taken in the circumstances.
Over the years, the Courts’ emphasis has been on the safety of the conviction rather than attempting to score the degree of ‘incompetence’ alleged. The Court of Appeal will look into the entire case and focus its attention on what effect the conduct had on the trial and the resulting verdict. It will be necessary to establish a nexus between the incompetence alleged and the subsequent errors or irregularities in the trial which rendered the conviction unsafe.
In addition to the issue of ‘safety,’ the Court can also be concerned about the overall fairness of the proceedings. If the Court of Appeal concludes that there has been unfairness as a result of the conduct alleged, the Court will consider quashing the conviction. The Court cannot ignore the fact that Article 6 of the European Convention of Human Rights has, as its main objective, the requirement of ‘fairness’ in every trial. Accordingly, if the conduct of the legal advisers has been such that this objective is not met, then the Court may be compelled to intervene. Indeed, in Thrakar  EWCA 1096, it was said that …’ the test is whether, in all the circumstances, the conviction is safe. Nonetheless, if such failures have prevented an appellant from having a fair trial, that will normally mean that the conviction is unsafe and should be quashed.’
There is no unique list scheduling what can, or cannot, be regarded as an instance of incompetence capable of providing grounds of appeal. The fact is that conduct covers every aspect of the proceedings. This may include allegations relating to pre-trial preparation, i.e. inadequate representation at the police station; failure to obtain evidence or call witnesses; failure to call expert evidence, including psychiatric evidence; failure to object to evidence; cross-examination not in accordance with instructions; failure to advise on the need (or otherwise) to give evidence; failure to seek a specific direction (e.g. good character); questioning that adduces otherwise inadmissible evidence; guilty pleas entered on erroneous advice; counsel not sufficiently experienced.
When criticism of trial lawyers is contemplated following conviction, due to the conflict of interest that arises, the applicant will need to instruct different lawyers. In order to present appeal grounds alleging incompetence, newly instructed Counsel must be satisfied that any criticism made and to be pursued is both reasonable and arguable. Counsel should not, when assessing the strength of any ground for appeal, have regard to the impact the complaint may have on Counsel affected.
Any applicant appealing on this basis should prepare a detailed statement setting out in as much detail as possible the complaint(s). Criticisms that Counsel regards as arguable and reasonable will be included in the grounds of appeal to be submitted for consideration by the single Judge. In this case, the Registrar of Appeals will, importantly, require the applicant to consider waiving privilege. This will allow the Court of Appeal to obtain the trial Solicitors file in order to establish whether the file discloses anything that might assist in addressing the complaint(s) raised. Consideration will be given to the instructions that were given, what advice was given, and whether or not such advice was accepted or rejected (before, during and after trial). It is common for Solicitors and/or Counsel to be written to asking for a statement to respond to the complaints made. Once this has been done, the safety of the conviction generally and the issue of fairness can be assessed.
Although criticism of trial lawyers is a common complaint in dealing with appeal work , successfully raising such issues remains difficult. Whilst the tests for alleging misconduct or incompetence have changed over the years, the fact is that that the Court of Appeal recognises that Lawyers have a difficult job, and very rarely interfere with Judgments and decisions taken by Lawyers during the trial process which are later complained of. Of course, Lawyers will seldom accept that errors have occurred and will almost always steadfastly refute any claim made.
However, the Courts do recognise that on occasions certain action or inaction by legal teams has such an impact on the nature and course of a case that resulting convictions are unsafe. Let this fact alone give hope that Appeals based on such grounds do succeed