Court Appointed Legal Representatives

COMMENTARY

1. The Criminal Bar Association has been asked by the General Management Committee of the Bar Council to draft brief guidance to assist with the issues which arise when the court appoints legal representatives to act on behalf of defendants and to consider whether a list of suitable counsel and solicitors should be drawn up from which the courts can make such appointments.

There have been previous reports written on this subject1 and, although in practice, the appointment of counsel by the court is not likely to occur often, as a matter of common sense, when it does occur, it is likely to involve a defendant who is either not cooperating or who is “playing the system” and such guidance will have to be interpreted liberally if the interests of the defendant are to be preserved and justice is seen to be done.

We have set out in full the background and statutory basis for these issues in order to explain why we have drafted the guidance in the terms we have. The draft guidance itself is annexed to the report.

2. The Background

2.1 The legislation which has provided for this procedure was passed as a result of two widely publicised cases in which a defendant acting in person cross-examined the complainant on an allegation of rape.2 The Lord Chief Justice gave guidance (in the then absence of statutory reform) in the case of R v Brown (Milton) [1998] 2.Cr.App.R.364 to assist trial judges confronted with such a problem:

“It will often be desirable, before any question is asked by the defendant in cross-examination, for the trial judge to discuss the course of the proceedings with the defendant in the absence of the jury. The judge can then elicit the general nature of the defence and identify the specific points in the complainant’s evidence with which the defendant takes issue and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence, the substance of their evidence can be elicited so that the complainant’s observations on it may, so far as it is relevant, be invited.”

There was further guidance set out as to the steps to be taken to restrict repetition or the intimidation or humiliation of the witness by way of the defendant’s dress, bearing, manner or questions

2.2 Statutory restrictions on cross-examination of the complainant by a defendant in person charged with a sexual offence3 were imposed by Section 34 of the Youth Justice and Criminal Evidence Act, 1999 (the Act) and this provision is now in force in respect of proceedings commencing on or after 4th September, 2000. This prohibition covers any other offence (of whatever nature) with which that person is charged in the proceedings.4

2.3 Section 34A of the Criminal Justice Act, 1988 prohibited cross-examination in person of child witnesses in certain cases and Section 35 of the Act extended this to include the alleged victims of kidnapping, false imprisonment and abduction. This prohibition also extends to cross-examination in respect of other offences with which a defendant is charged in the proceedings.5

2.4 There is a further power under Sections 36 and 37 of the Act to prohibit a defendant in person from cross-examining witnesses not covered by Sections 34 & 35 if the court is satisfied, first, that the quality of the witness’s evidence is likely to be diminished if the defendant is allowed to proceed and improved if he is prohibited from doing so and secondly, that it would not be contrary to the interests of justice to give such a direction. These provisions came into force on the 24th July, 2002.

2.5 Section 38 of the Act makes provision for the appointment of a qualified legal representative for the purposes of cross-examination of a witness where an accused in person has been prevented from so doing by virtue of Section 34, 35 or 36.

3. Section 38

3.1 Section 38 allows the accused to have the opportunity of appointing his own legal representative to conduct the cross-examination on his behalf. If he does not, Section 38(4) of the Act specifies that where the court has decided that it is necessary in the interests of justice for the witness to be cross-examined by a court appointed legal representative, the court must appoint a qualified legal representative6 (chosen by the court) to cross-examine the witness in the interests of the accused. A person so appointed shall not be responsible to the accused.7 Any reference to cross-examination includes (in a case where a direction under Section 36 has been given after the accused has begun cross-examining the witness) a reference to further cross-examination.8 Even after the appointment by the court under Section 38(4) of such a legal representative, the accused may arrange for that legal representative to be appointed to act for him and it is then as though he had done so at the outset under Section 38(2)(a) of the Act.9

The legal representative is then no longer the representative of the Court.

3.2 We have set out the statutory framework in some detail because the provisions themselves make it clear that there are the two underlying principles behind the appointment of such a legal representative, namely, that such an appointment is in the interests of justice and that the legal representative is appointed to represent the interests of the accused although not responsible to him. They may sound obvious principles but the tensions which are likely to flow from such a situation make any court appointed legal representative liable to face a number of extremely difficult decisions and it will be a testing task for the judge to ensure that the balance between the interests of justice and the interests of the accused is maintained. One of the obvious problems which we try to deal with in the guidance is the effect of disclosure material. This may well contain material which could properly be used in cross-examination where it was relevant but in the absence of specific issues identified by the defendant to the Court, it will be extremely difficult for its relevance to be assessed.

4. Code of Conduct
Paragraph 401(a) of the Code of Conduct has been amended to allow for a barrister in independent practice to be appointed by the court but it seems to us very likely that there will have to be other amendments made since the role of court appointed counsel who is expressly not responsible to the defendant is quite different from the role of counsel appointed to represent the defendant. An example is under Paragraph 708(a) which deals with conduct in court and which requires that a barrister is personally responsible for the conduct and presentation of his case and must exercise personal judgement upon the substance and purpose of statements made and questions asked. This is likely to be very difficult since the questions asked are likely to be constrained by the judge who will ultimately be responsible for parameters of appropriate cross-examination.

It will also be very important that any court-appointed counsel is as clear as possible as to the purpose and the parameters of any questions to be asked since it is not difficult to foresee a situation where questions asked without instructions may receive answers which either make matters worse for the defendant or open up previously unexplored areas which the Crown may use to their advantage. This may be unavoidable but if both the judge and counsel are fully aware of the nature of the questions to be asked, the danger will be lessened and, if it occurs, counsel will not be at fault. A simple instruction from the court to “test the evidence” will not be sufficient and the judge will have to be as specific as possible and counsel equally careful as to the questions asked to avoid unnecessarily exposing themselves to complaint from the defendant of unfairness.

5. List of Suitably Qualified Legal Representatives

5.1 As previously set out, “qualified legal representative” is defined in Section 38(8)(b) as a “legal representative who has a right of audience (within the meaning of the Courts and Legal Services Act,1990) in relation to the proceedings before the Court”.

It is, in our view, essential that only legal representatives with the appropriate number of years experience (we suggest seven) in predominantly criminal law with previous experience of cross-examining complainants in sexual cases and children be considered for what is going to be a difficult task. Whilst these cases may not be restricted to allegations of sexual abuse, they are more likely to be generated by them. The Code of Conduct provisions would in any event apply to the Bar which would prevent counsel from accepting any instructions if to do so would cause him to be professionally embarrassed which includes having insufficient experience or competence to handle the matter.10

5.2 The task of appointing counsel is likely to be done on a practical level by the associate in consultation with the judge and perhaps the List Office. Who is appointed will depend on the stage at which the appointment is made. If it is early in the proceedings, there should be ample time to appoint an appropriate representative. In the absence of a list, this is likely to be from counsel who regularly appear in that court or who are well known. It seems to us there should at least be the opportunity for counsel to have their name on the list. It may be the appropriate course would be for all Chambers to be asked to provide a list of counsel with the appropriate experience who would like to be included on the list. Remuneration would have to be appropriate11 because it will be necessary for counsel to familiarise themselves with all the material including unused which in these unusual circumstances should also be made available to the judge.

5.3 Although an appointment of a legal representative will normally terminate at the conclusion of the cross-examination12, there is provision for the court to determine otherwise and we consider that it may well be necessary for counsel to remain for the duration of the trial in case evidence is given by the defendant or another witness which needs to be put to the complainant who will then have to be recalled and re-cross-examined. This situation may arise where the defence is not known and the issues have not been fully identified because the defendant is being uncooperative and may have given a no comment interview. The cross-examination will have been based on the papers and, whilst obvious issues will have been covered, it may well be that the questions asked do not, in fact, cover the defendant’s case as given from the witness box. To avoid the whole scenario becoming a sham, the defendant’s case will have to be put to the complainant. It follows from this that counsel appointed by the court will have to be available for the whole trial as opposed to simply cross-examination. There is also the possibility that the judge may intervene during the trial to make a direction under Section 36 preventing the defendant from cross-examining other witnesses.

5.4 Such a list will need maintaining as well as setting up. Although there are a number of sources which could probably provide the relevant information, for example, the individual Bar Messes, the CBA, the circuit, none of these include solicitor advocates and although there may not presently be many with the necessary experience, the Law Society will need to be involved in this process to maintain equal opportunity for all those with suitable qualifications.

5.5 Once such a list is set up, it will be for the court to select the appropriate advocate and the cab-rank principle should apply to all approached, subject to an advocate feeling they are insufficiently experienced.

6. Duties of Court Appointed Legal Representative

6.1 It is expressly set out that the legal representative is not responsible to the defendant13. It follows that there will not be any meetings with the defendant nor any instructions taken directly from him unless he chooses to “adopt” the court appointed representative as his own (see para 3.1).

6.2 Rules of court may make provision in particular for securing that the legal representative will be provided with “evidence or other material relating to the proceedings”14 and this can include disclosure of material in connection with criminal proceedings under Part 1 of the Criminal Procedure and Investigations Act, 199615. It will be the duty of the legal representative to read all such material and watch any videos of disclosure interviews.

6.3 If the appointment is made at a relatively early stage in the proceedings, presence at preparatory hearings may seem sensible if there is to be a ruling on the admissibility of evidence or any similar ruling prior to the swearing of the jury and it may well be useful to attend simply to clarify the issues. It should be borne in mind, however, that the role of the legal representative is clearly intended to be limited to cross-examining witnesses whom the defendant is prohibited from cross-examining and although it may be thought that such a representative could be useful to the court in other areas, that does not seem to be intended by the legislation. Ultimately, it will be matter for the judge to decide and, no doubt if there is a point which can be properly taken on admissibility of a witness’s evidence which is not dependent on the defendant’s instructions, the legal representative will make the appropriate submissions, either of his own volition or at the invitation of the judge and these are areas which may well be identifiable at an early stage in the proceedings.

6.4 If it is possible, the legal representative should be present during the opening of the case to the jury and it is after this that there should be a hearing in the absence of the jury but in the presence of the defendant and both prosecuting counsel and the legal representative at which the judge will have to take steps to establish the issues in the case. Concern has been expressed that the defendant may refuse to tell the judge anything in the presence of prosecuting counsel and there is always the possibility that the defendant may inadvertently say something to the judge which could provide material in cross-examination. The problem is that prosecuting counsel has an ongoing duty of disclosure and they have to know what the defence is in order to comply with their duty. If the defendant makes it clear that he will not say anything if prosecuting counsel remains present, the Judge must decide what to do and this may well include explaining to the defendant the duty of the Crown and how limited the judge’s powers are on disclosure without input from the Crown. Subject to that, if the Judge feels that the interests of justice are best served by a hearing in the absence of the Crown, then, no doubt, that is what he will do.

There are a number of possible scenarios :-

(i) The defendant has given a full interview to the police setting out his defence. In this case, the defendant can simply be asked whether he will confirm the defence set out in the interview. If he does so, then it seems to us that the legal representative is justified in putting a positive case to the witness although no doubt in a moderate way. This will assist the jury to assess the credibility of the witness. If the defendant will not confirm that this is his defence, the witness should nonetheless be cross-examined on that basis but not as a positive case and any other relevant points need to be identified before cross-examination.

(ii) There is a defence statement setting out a defence. The same question can be asked but as the defendant will have presumably sacked whoever was responsible for that statement, care will need to be taken in putting that forward even if the defendant confirms that is his defence. There are often significant differences between an interview and a defence statement and all that will be required will be to give the witness the opportunity of dealing with any points made in either. It is important, however, that the cross-examination is not conducted in a way which invites scepticism because of how it is put as opposed to the actual content of the questions being put because the legal representative has been appointed to represent the interests of the defendant.

(iii) There is a no comment interview and no defence statement. Although the defendant can be asked by the judge if he will outline the points on which he takes issue in the case, it is not hard to foresee the scenario where a defendant is being completely uncooperative, no doubt wishing to make a point to the jury (which some may think has some force) that he has not been able to defend himself properly because he has been unable to cross-examine the main witness against him. In those circumstances, the legal representative is likely to be constrained by the issues which the judge directs are relevant as far as can be ascertained from the papers although no doubt the submissions of the legal representative will be sought. Once those issues have been identified, they should be explained to the defendant and he should again be asked whether he is now willing to indicate his defence. It should be noted that it is for the court to decide in the first place whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the defendant and it is only if the court does so decide that a legal representative has to be appointed. Strictly speaking, if there is no sensible basis upon which a witness can be cross-examined, it may not be in the interests of justice for this to be done and it is open to the judge to refuse to appoint a legal representative to do so. This would be a brave decision to take and one which would seem likely to strike the average juror as unfair. The more likely scenario and the more sensible one would be for the legal representative to be invited to test the evidence as if a certain line of defence was being put forward but not putting any positive case to the witness.

(iv) Where the defendant refuses to be represented because of a psychiatric condition such as mental illness or a personality disorder. It is obvious in these very unfortunate cases that every effort should be made to persuade the defendant to be represented but that if they will not, then all proper and available lines of defence should be put to the witness and all proper legal arguments mounted.

6.5 Once the relevant areas of cross-examination have been identified, the legal representative must consider any proper legal arguments relevant to the cross-examination. This would include questions relating to the sexual history of the witness for which leave must be given or whether a particular line of cross-examination may lead to an application to adduce the defendant’s previous convictions in the event of him giving evidence. We do not consider it is the duty of the legal representative to raise other legal arguments which are not relevant to cross-examination. It may be that such representatives would wish to ensure that either the court or the prosecution was made aware of such points to avoid a miscarriage of justice but it would not appear to be within the limited confines of their duty which is to cross-examine. There will no doubt be a strong temptation for the legal representative to be treated as amicus in the trial generally. We do not consider that to be appropriate unless the judge specifically requests that that role be adopted as it will be extremely difficult for the legal representative then to be confident that he or she is fully aware of the parameters of their role in the case. It would also be confusing for the jury who may well think that the defendant has actually got full representation even though he didn’t want it.

6.6 There will be circumstances where the legal representative considers that it is in the interests of the defendant that they remain until the end of the evidence. If so, application should be made to the judge for leave to remain.

6.7 It may also be sensible for the defendant to be reminded at the end of the cross-examination that they can “adopt” the legal representative. If that is done, there will need to be the opportunity for the defendant to give instructions and, if necessary, further cross-examination but care will have to be taken to prevent a defendant manipulating or appearing to manipulate the court process and also to prevent a witness being cross-examined more than is necessary.

7. It is our view that many of these decisions can only be taken on an individual case basis and will depend upon the sensible handling of the defendant by the judge. The legal representative will need to be alive to the limitations of their role and not to be beguiled into acting as the defendant’s representative generally. There is a requirement in Section 40 of the Act that the judge gives such warning to the jury as he considers necessary to prevent prejudicial inferences being drawn either from the fact that the defendant is not cross-examining or (where this occurs) the fact that a court appointed representative has cross-examined on his behalf. It remains to be seen whether the difficult balance between maintaining the interests of justice whilst making sure that justice is being seen to be done can be achieved in practice.

Guidance for Court Appointed Legal Representatives

1. A court appointed legal representative will not meet privately with the defendant nor take instructions directly from the defendant.

2. All matters relevant to the cross-examination to be conducted by the legal representative will ordinarily be dealt with in open court in the presence of the prosecution and the defendant but in the absence of the jury.

3. The legal representative will be provided with the evidence in the case comprising all prosecution statements and exhibits and have access to unused material. It will be the duty of the legal representative to familiarise him/herself with the evidence and be in a position to assist the judge as to the likely material issues as disclosed on the papers.

4. Before the start of the trial, the judge will identify as far as possible the likely issues in the case. This will involve the prosecution and the legal representative and where possible, the defendant.

5. Where the defendant has given a full account in interview and has confirmed to the judge that this account is to be maintained at trial identifying, if appropriate, any material differences etc, the legal representative should prepare cross-examination on the basis of that defence. It is a matter for the legal representative’s judgement in each case as to whether that is put forward as a positive defence in cross-examination or simply used as a basis for testing the evidence.

6. Where there is only a defence statement which the defendant has not confirmed as his defence, the legal representative should not put this forward as a positive defence . It should only be used as a basis from which to test the evidence of the witness.

7. Where there is only a defence statement but the judge has elicited from the defendant that this accurately represents his defence, the legal representative should prepare cross-examination on the basis of that defence but should not generally put it as a positive defence unless there is good reason so to do, for example, if the defendant indicates that the defence to a rape allegation is to be one of consent.

8. Where the defendant has made no comment in interview and there is no defence statement but the judge has elicited from the defendant what his defence is to be, the legal representative should prepare cross-examination on the basis of that defence but should not generally put it as a positive defence unless there is good reason so to do, for example, if the defendant indicates that the defence to a rape allegation is to be one of consent.

9. Where the defendant has made no comment in interview and there is no defence statement and declines to indicate what his defence is to be, the legal representative should prepare cross-examination in accordance with the directions of the judge after discussion with both prosecution and the legal representative as to the material issues in the case. This should not be put forward as a positive case. The only proper basis is to test the evidence of the witness on the specific areas identified by the judge.

10. Where the defendant has given an account in interview and/or his defence statement but has indicated that his defence is different and will not indicate in what way it differs, the same approach as in para 9 above should be followed.

11. Although the appointment by the court of a legal representative implies that the court considers that cross-examination of the relevant witness will be in the interests of the defendant, it is a matter for the legal representative to judge whether, in the event, it is in the interests of the defendant for there to be cross-examination as, for example, where the witness has not come up to proof on a material point.

12. It will be the duty of the legal representative to raise any points of law relevant to the conduct of the cross-examination prior to the cross-examination such as whether there are relevant and admissible questions on the witness’s sexual history or whether a particular line of cross-examination is likely to result in the defendant’s “shield” being lost in the event of him giving evidence.

13. Whilst in the normal course of events, the appointment of the legal representative terminates at the conclusion of the cross-examination of the particular witness, the legal representative should consider whether there is a need for the appointment to remain until a later stage in the trial if, for example, it may be necessary for the witness to be recalled for further cross-examination and if there is, to make the appropriate application to the judge.

November 2003

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1 Peter Rook QC 27th January, 2001 and Nicholas Price QC March 2002
2 R v Brown (Milton) [1998] 2Cr.App.R.364 and R v Ralston Edwards
3 Defined in S.62 YJ&CEA,1999
4 S.34(b) YJ&CEA,1999
5 S.35(b) YJ&CEA,1999
6 Defined in S.38(8)(b) as a legal representative who has a right of audience (within the meaning of the Courts and Legal Services Act 1990) in relation to the proceedings before the court.
7 S.38(5) YJ&CEA, 1999
8 S.38(8)(b) YJ&CEA,1999
9 Crown Court Rules 1982 r 24D
10 Paragraph 603(a)
11 S.40 YJ&CEA,2002 makes provision for payment out of central funds
12 Crown Court Rules 1982 r24C-(2)
13 S.38(5) YJ&CEA, 1999
14 S.38(6)(b) YJ&CEA,1999
15 S.38(7)(a) YJ&CEA,1999