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Criticism of Former Counsel in Criminal Cases

1. Allegations against former counsel may receive substantial publicity whether accepted or rejected by the court.  Counsel should not settle or sign grounds of appeal unless he is satisfied that they are reasonable, have some real prospect of success and re such that he is prepared to argue before the court  (Guide to Proceedings in the Court of Appeal Criminal Division Para 2.4).  When such allegations are properly made, however, in accordance with the Code of Conduct counsel newly instructed must promote and protect fearlessly by all proper and lawful means his lay client’s best interests without regard to others, including fellow members of the legal profession (code Pt II Fundamental Principles, Para 203(a).

2.  When counsel newly instructed in satisfied that such allegations are made, and a waiver of privilege is necessary, he should advise the lay client fully about the consequences of waiver and should obtain a waiver of privilege in writing signed by the lay client relating to communications with, instruction to and advice given by former counsel.  The allegations should be set out in the Grounds of Application for Leave to Appeal.  Both waiver and grounds should be lodged without delay; the grounds may be perfected if necessary in due course.

3. On receipt of the waiver and grounds, the Registrar of Criminal Appeals will send both to former counsel with an invitation on behalf of the occur to respond to the allegations made.

4. If former counsel wishes to respond and considers the time for doing so insufficient, he should ask the Registrar for further time. The court will be anxious to have full information and to give former counsel adequate time to respond.

5. The response should be sent to the Registrar.  On receipt, he will send it to counsel newly instructed who may reply to it.  The grounds and the responses will go before the single judge.

6. The Registrar may have received grounds of appeal direct from the applicant, and obtained a waiver of privilege before fresh counsel is assigned.  In those circumstances, when assigning counsel, the Registrar will provide copies of the waiver, the grounds of appeal and any response from former counsel.

7. This guidance covers the formal procedures to be followed.  It  is perfectly proper for counsel newly instructed to speak to former counsel as a matter of courtesy before grounds are lodged to inform him of the position.