Tuesday, 19 March 2013

A Mild Winter? Sgt Danny Nightingale's 'Improper' Defence

On the 13th March 2013, Sgt Danny Nightingale was freed by the Court of Appeal, after his conviction for possession of a firearm was quashed and a retrial ordered. The basis for this decision was the 'improper pressure' applied to Nightingale to plead guilty prior to the military trial he was entitled to. The clear implication of this was that Nightingale's defence lawyer, Ian Winter QC, had failed in his duty to adequately protect his client's interests.

The case is interesting not only as an examination of the proper role of the defence lawyer, but also as a warning about the relationship between defence lawyers and judges. Winter's role as a defence lawyer was to protect the interests of the client; this should include presenting the case the client wants (obviously avoiding perjury) and vigorously questioning the prosecution. As far as I am aware, defence lawyers in Courts Martial are bound by the same ethical codes as your average criminal defence lawyer (SRA Code of Conduct, BSB Code of Conduct, etc). If there is a separate code for military lawyers, I would be keen to read it. 

Regardless, one can presume that as a minimum Winter would be obliged to fulfil the reasonable wishes of the client by presenting the defence he desires. It is pretty well established that Danny Nightingale claimed to be innocent; this was widely covered by the media, and included a high profile campaign by his wife. It is thus puzzling that his lawyer suggested he plead guilty (at least by implication). Winter explained that the judge had told him that a 5 year sentence was likely should Nightingale proceed to defend himself and be convicted. In contrast, a guilty plea would be unlikely to attract a custodial sentence. The Court of Appeal suggested that, with the cooperation of the defence lawyer, this amounted to 'improper pressure' on the defendant.

As such, Winter arguably failed to perform his duty - by acting as a messenger for the judge, he was complicit in a not terribly subtle attempt to end matters quickly by extracting a guilty plea. This seemed to be in direct contrast to Nightingale's repeated protestations of innocence. Winter helped facilitate the interests of the Court rather than those of the defendant, failing in the requirement to protect and defend the client. Certainly, this was far from the zealous advocacy an embattled defendant, claiming innocence, would need. The result, of course, was a miscarriage of justice which now appears to be rectified.

This sort of plea bargaining has now become a fairly common feature of the 'guilty plea' culture encouraged in England and Wales. Various carrots and sticks have been created to encourage guilty pleas, and although many will be accurate and save time and money, plenty will result in an unfair and unjust result. The defence lawyer's role in the system is protect the defendant and ensure that a conviction is legitimate. It is highly questionable whether cooperation of this nature fulfils this brief. The entrenched incentivisation of guilty pleas has thus had a substantial impact (among many other things) on the role of the defence lawyer, diluting 'zealous' advocacy with 'cooperative' advocacy. How good this is depends on your point of view, but Danny Nightingale would probably consider it to be negative.

Finally, the relationship between defence lawyers and judges should certainly be questioned in this context. It is unclear how often judges provide an 'uninvited' indication of sentence, but the post-Criminal Procedure Rules ethos of openness, cooperation, dialogue, and focus on the 'real issues' encourages closer procedural relationships between the bench and lawyers. How close to negotiation of plea this comes is, again, not clear. Too cosy a relationship between judges/magistrates and defence lawyers - for whom saving both time and money are undeniable factors in the modern criminal justice system - is dangerous as client interests may be relegated. Danny Nightingale appears to have been a victim of too much cooperation between the Court and the defence; hopefully this sort of 'improper pressure' isn't as common in Magistrates' and Crown Courts across the land.

Thursday, 7 March 2013

Efficient and Expeditious? Sometimes it pays to 'think twice'

The drive for increased efficiency and speed in criminal proceedings has been high on the agenda for many years. Those in favour (the Government, the judiciary) argue that the promotion of this culture provides better value for money for the public and focuses proceedings on the 'real issues' (as the Criminal Procedure Rules term them).

Those who question this eternal quest for a shorter and cheaper process argue that quicker isn't necessarily better. Issues or evidence that matter can be missed. Procedures designed to safeguard rights can be truncated. What the 'real issues' are depends on who you ask. And the constant pressure for more efficiency can lead to unfair trials, subsequent appeals and more cost. Not so efficient after all.

A good example is the recent case of J (A Child) [2012] EWCA Civ 1231. Although a family case, the matter at hand was demonstrative of a danger applicable to criminal cases. The case involved a dispute between a separated mother and father over shared custody of their son. Sadly, the litigation relating to the case had dragged on for nearly a decade. The mother, a difficult woman who's 'personality characteristics . . . were putting [the child] substantially at risk' had broken off agreed custody arrangements with the father on several occasions.

Having sole custody, the mother had consented to allow periodic, temporary custody for the father. But, every few months, she would renege on the agreement, disrupting the child's contact with the father. The mother failed to provide any clear reasons as to why she repeatedly terminated the arrangements. As such, joint custody on an equal basis was imposed in order to  establish a 'balance of power'.

Once again, the mother disrupted the arrangements by seeking sole custody of the child. Subsequently, the father made a similar application. The matter therefore came to the County Court before Recorder Bryan. The matter was resolved in favour of the mother and the father appealed. His grounds underline the points raised earlier in this post.

The major issue, he argued, was that the Recorder - seemingly due to a desire to get through proceedings swiftly and focus on the 'real issues' - had unfairly limited his Counsel's ability to put his case. The father's lawyer had wished to cross-examine the mother on why she had repeatedly changed her stance on the father's level of contact. When the lawyer attempted to do this, the Recorder intervened, saying to the mother:

'Do not answer the question . . . I do not see where it is going'

The Recorder did not see the value in 'rak[ing] over all [the mother's] earlier concerns and worries'. The lawyer explained that because the mother repeatedly disrupted contact, she wished to 'get to the bottom of what the problems are', in order to finally and definitively resolve the matter. She suggested it would avoid a situation where the mother might disrupt the arrangements again (as in the past) and 'two months down the line . . . we come back to Court again and we're back to . . . square one'.

These appear to not only be very cogent arguments, but go beyond favouring her client - they promote effciency. Yet, the Recorder stated that 'the Court . . . will want to move forward rather than linger'. The lawyer countered that this would allow the mother to 'dictate' future arrangements and that it had 'never [been] established why the previous arrangements were wrong'.

The Recorder dismissed her persistence, stating she was 'not going to gain any mileage from this line of cross-examination'. The lawyer attempted to proceed but was actively curtailed by the Recorder. The lawyer argued that this 'hamper[ed] my ability to be able to put my client's case'. The Recorder curtly responded that 'we are where we are'.

This exchange is a good example of the dangers of rushed procedure, driven by a desire to be speedy and efficient. The lawyer's point - that a pattern could be identified in the mother's conduct and examining it could help resolve future issues - was dismissed with little or no consideration because of the desire to 'move forward'.

Rightly, the father's appeal was allowed. Munby LJ felt that the issues raised 'cried out' for investigation. He considered the line of enquiry substantial and justified. Defence lawyers are often criticised for pursuing spurious points in the vain hope of raising any defence. Case management in the name of efficiency is often lauded for discouraging this behaviour. Yet, in complete contrast, Munby LJ dismissed any notion that the lawyer was attempting a 'Micawber-like' cross-examination in the 'speculative hope . . . that something might turn up.'

He made a point of underlining that 'a judge should stop irrelevant or time-wasting cross-examination'. However, he suggested that 'counsel is likely to have a better grasp of the inner forensic realities of the case [than the judge]'. This provides a good basis for criticising the long-running transfer of power away from the parties to the judiciary.

Judicial case management essentially adopts a top-down approach, with parties expected to comply with the expectations of the bench. Alongside the argument that the parties in an adversarial system should be able to run their own case, Munby LJ's rationale provides a good reason for judges to 'think twice' before dismissing a lawyer's line of investigation as time-wasting.

Munby LJ commended the father's lawyer, highlighting meritorious conduct that should also be considered good criminal defence practice. He congratulated her for 'doing her duty, politely but firmly standing her ground and telling the Recorder plainly that his ruling was preventing her putting her client's case.'

This clearly demonstrates the type of fearless and persistent zealous advocacy that criminal defence clients should be provided with. A lawyer willing to incur the ire of a judge or the opponent, in order to logically and robustly present the client's case. Munby LJ concluded that it was 'a pity' that the Recorder stifled such behaviour by refusing to 'change his mind'.

J (A Child) is an excellent demonstration of both good defence work and bad judicial case management. It highlights the danger that single-minded devotion to an efficient, speedy, forward-moving process can present and the necessary battles that effective lawyers need to engage in.

Friday, 1 March 2013

Defence lawyers left out in the cold . . . again

Criminal Justice Minister Damian Green yesterday (28 Feb 2013) announced the membership of the new 'Criminal Justice Board' - a panel designed to examine the flaws and inefficiencies of the current criminal justice framework, adopting a 'whole system approach'. 

Unfortunately (or perhaps deliberately) the Minister has omitted to include any direct representative of a rather important player in the process - the criminal defence lawyer. Alongside the prosecution, suspects and defendants comprise the primary party affected by the workings of criminal justice. Since defence lawyers are employed to represent them, it would seem logical and advisable to include them.

The Board includes representatives for the Police, the CPS, prisons, youth justice, the Courts, the LSC and for victims of crime (who, although clearly affected by the system, are not a formal party to the process). There is in fact room for multiple mouthpieces for the Police and Victims.  In contrast, the defence perspective has no advocate on the Board.  

This curious oversight is perhaps the continuation of a pattern; the criminal defence community has been excluded before. The Criminal Procedure Rules Committee has never had a direct representative of defence interests (although several members are ex-solicitors and barristers who no doubt have been defence practitioners at some stage). Defence lawyers were initially left out of consulations on the digitialisation of the criminal justice system. The defence had no representation on the short-lived post-Carter reform group spearheaded by the Attorney General at the time, Lord Goldsmith.

The exclusion of the defence community may also result from a deliberate 'deaf ears' policy adopted by successive Governments. The Coalition's single-minded quest to slash costs, shorten processes, cut corners, reduce defendant rights, expand victim involvement, and case manage the criminal process is regularly criticised.

To invite defence lawyers into the room would likely lead to dissent - and the Government is not looking for dissenters. The fact that the Board aims to create a service that 'meets the needs of victims and the public' suggests that defendant interests do not even register on the agenda. To include their representatives would therefore be another obstacle in achieving the stated goals of the Board.

The exclusion of the defence community may also be a form of punishment. The long-running battle over QASA, OCOF and (in the past) tendering for legal aid contracts has seen an extreme polarisation of the Government and the major defence representatives such as the Criminal Bar Association and the Criminal Law Solicitors Association.

With threatened universal strike action looming and furious diatribe eminating from the defence community (for example, see the blog of Michael Turner QC, Chairman of the CBA), the Government may be placing the rebels in the dog house.

Either way, to deliberately exile the defence community from the conversation is unjustifable and foolish (particularly considering that most of them have direct experience of the day-to-day problems the Board apparently seeks to rectify). If the Minister has simply forgotten to include them then it is outrageously incompetent.

On a final note, it is worth mentioning that the Board includes no academic representation. Considering that many scholars and researchers dedicate their talents to examining the criminal justice system from an outside perspective, it would seem worthwhile including a representative of the academy. But perhaps they are also likely to say things that the Board don't want to hear.