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Role of the advocate at trial


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[UPDATED] In his final judgment in the Court of Appeal, Lord Justice Judge has given some interesting guidance given on the role of the advocate in a contentious trial. The case is R v Farooqi & Ors [2013] EWCA Crim 1649 and the judgment is that of the court.

640px-Royal_courts_of_justiceThe advocate whose conduct generated the appeal is named but declined to respond to the allegations. His version of events is absent from the judgment.

The guidance on the role of the advocate is so important that rather than linking I think it is worth reproducing parts in full:

107. …The client does not conduct the case: that is the responsibility of the trial advocate. The client’s instructions which bind the advocate and which form the basis for the defence case at trial, are his account of the relevant facts: in short, the instructions are what the client says happened and what he asserts the truth to be. These bind the advocate: he does not invent or suggest a different account of the facts which may provide the client with a better defence.

108. Something of a myth about the meaning of the client’s “instructions” has developed. As we have said, the client does not conduct the case. The advocate is not the client’s mouthpiece, obliged to conduct the case in accordance with whatever the client, or when the advocate is a barrister, the solicitor “instructs” him. In short, the advocate is bound to advance the defendant’s case on the basis that what his client tells him is the truth, but save for well-established principles, like the personal responsibility of the defendant to enter his own plea, and to make his own decision whether to give evidence, and perhaps whether a witness who appears to be able to give relevant admissible evidence favourable to the defendant should or should not be called, the advocate, and the advocate alone remains responsible for the forensic decisions and strategy. That is the foundation for the right to appear as an advocate, with the privileges and responsibilities of advocates and as an advocate, burdened with twin responsibilities, both to the client and to the court.

109. In the trial process the advocate is subject to some elementary rules. They apply whether the advocate in question is a barrister or solicitor, and to the extent that the rules of professional conduct of either profession are not consistent, they should be made so. In the forensic process the decision and judgment of this court bind the professions, and if there is a difference, the rules must conform with the decisions of the court. By way of emphasis, in the course of any trial, like everyone else, the advocate is ultimately bound to abide by the rulings of the court. If a remedy is needed, the rulings are open to criticism in this court, and if they are wrong, their impact on the trial and the safety of any conviction can be fully examined. Although the judge is ultimately responsible for the conduct of the proceedings, the judge personally, and the administration of justice as a whole, are advantaged by the presence, assistance and professionalism of high quality advocates on both sides. Neither the judge nor the administration of justice is advantaged if the advocates are pusillanimous. Professional integrity, if nothing else, sometimes requires submissions to be made to the judge that he is mistaken, or even, as sometimes occurs, that he is departing from contemporary standards of fairness. When difficult submissions of this kind have to be made, the advocate is simultaneously performing his responsibilities to his client and to the administration of justice. The judge, too, must respect the reality that a very wide discretion is vested in the judgment of the advocate about how best to conduct the trial, recognising that different advocates will conduct their cases in different ways, and that the advocate will be party to confidential instructions from his client from which the judge must be excluded. In general terms, the administration of criminal justice is best served when the relationship between the judge and the advocates on all sides is marked by mutual respect, each of them fully attuned to their respective responsibilities. This indeed is at the heart of our forensic processes.

110. For the purposes of these appeals we shall highlight some of the further rules which appear to have been significantly infringed.

111. The advocate cannot give evidence or, in the guise of a submission to the jury, make assertions about facts which had not been adduced in evidence. That is inconsistent with the proper function of an advocate. The importance of the rule is particularly stark whenever the defendant elects not to give evidence in his own defence. Farooqi failed to do so, and we shall shortly address the complaint against Mr McNulty’s competence arising from this decision. Whatever the circumstances, the advocate cannot supply the evidence that the defendant has chosen to withhold from the jury. Self-evidently his function is entirely distinct from that of a witness. When the advocate confines himself to commenting on or inviting the jury to draw inferences from aspects of the evidence which has been given, this principle is not infringed. But as we have demonstrated in the narrative of the facts, Mr McNulty went much further.

112. Mr McNulty’s critical comments about prosecution witnesses were advanced without the witness (or the prosecution) having been given a fair opportunity to address and answer the criticism. The fairness principle operates both ways. The defendant must have a fair trial. It is however equally unfair to an individual witness to postpone criticism of his conduct until closing submissions are made to the jury, not least because if given the opportunity, the witness whose behaviour is impugned may have a complete or partial answer to the criticism. All this is elementary.

113. We do not suggest that the principle of fairness to the witness requires the somewhat dated formulaic use of the word “put” as integral to the process. Assuming that there is material to justify the allegation, “Were you driving at 120 mph?” is more effective than, “I put it you, that you were driving at 120 mph?” What ought to be avoided is the increasing modern habit of assertion, (often in tendentious terms or incorporating comment), which is not true cross-examination. This is unfair to the witness and blurs the line from a jury’s perspective between evidence from the witness and inadmissible comment from the advocate. We withhold criticism of Mr McNulty on this particular aspect of his cross-examination because he was following a developing habit of practice which even the most experienced judges are beginning to tolerate, perhaps because to interfere might create difficulties for the advocate who has been nurtured in this way of cross-examination. Nevertheless we deprecate the increasing habit of comment or assertion whether in examination in chief, but more particularly in cross-examination. The place for comment or assertion, provided a proper foundation has been laid or fairly arises from the evidence, is during closing submissions to the jury.

114. One further aspect of the principle that the trial process is not a game is that the advocate must abide and ensure that his professional and lay clients understand that he must abide by procedural requirements and practice directions and court orders. The objective is to reduce delay and inefficiency and enhance the prospect that justice will be done. Ambush defence or arguments are prohibited.

There have been several comments on the judgment already elsewhere. If interested, take a look at Richard Moorhead, Dan Bunting and Simon Myerson QC [update: and an interesting piece by Matthew Scott].

Inevitably, the judgment has caused me to reflect on the conduct of proceedings in the increasingly controversial and heated area of immigration law. Judges have already been very critical of the conduct of solicitors and counsel in seeking to obtain injunctions against removal in the High Court. One firm was even shut down by the Solicitor Regulation Authority following such criticism. How about at the immigration tribunal?

It is only Home Office Presenting Officers who routinely conduct cross examination. Do they abide by the same professional standards expected of barristers and solicitors?

Rather reluctantly — there are some good people working at the Home Office in difficult circumstances — I would say ‘no’. It is made almost impossible for Home Office staff to do so. The Presenting Officer is not an independent lawyer but a contractual employee of the Home Office with targets to meet. There is no enforcing regulator. Only the normal civil service code applies and that does not impose any overriding duty to the court, for example. The Presenting Officer has decision-making powers and combines the role of client and advocate. Credibility points, even basic ones such as the allegation that the witness is not telling the truth on a central, determinative issue, are often not put in cross examination but saved for submissions. Cross examination is often pointless and more akin to an examination in chief (with some very effective exceptions). Vexatious questions or questions with no evidential basis whatsoever are sometimes asked.

Only yesterday, for example:

For very sensible reasons (such as total lack of evidence and utter absurdity) this is never, as a matter of policy, alleged by the Home Office in a refusal letter. As happens from time to time, it was almost certainly raised without notice on a perverse frolic by the Presenting Officer. And there is only ever one ethnic group against whom this allegation is made. That is not acceptable conduct.

Eye rolling is understandable but is not enough. The immigration tribunal should follow the lead of the higher courts and crack down on unprofessional conduct from advocates of whatever variety.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


7 Responses

  1. As you say, it’s a shame that the rules of cross-examination (and general rules of litigation it would seem) don’t seem to apply to the Home Office. Interesting to see the link with the immigration cases, I hadn’t thought of that.

    It was slightly depressing that the last judgment from the Lord Chief was an attack (however justified it may have been) on defence advocacy (I think that he gets to choose his swansong) rather than on the collapsing state of the Criminal Justice System, the state of the CPS, legal aid, any of the other numerous problems that we face. I’m sure the new Lord Chief Justice will happily take over from where Igor Judge left off.

    I can’t see that there is any change in the Tribunal, that would require money in training, or the greater use of lawyers!

    1. Thanks for dropping by, Dan. Well, the immigration thing is, as ever, a pretty niche interest! The judgement does read in parts as getting a few things off his chest while he’s at it. It isn’t like to lead to a line of judgments like that about immigration injunction lawyers, though, I hope!

      There is some reason to hope things might improve in the tribunal: costs. From the consultation, it seems likely that costs sanctions will be available in the near future. How far judges will be willing to use this against the Home Office rather than only appellants, though, we won’t find out for some time…

  2. Not at all Colin! I still do some immigration (although a lot less than I used to). We shall see about costs – from memory Governments have often announced they will do this, before quietly backing down when they are reminded that a fully enforced costs regime would bankrupt the Home Office in a couple of weeks.

    It is a concern that the new LCJ will continue with his previous line of attack on immigration injunctions. I haven’t done an immigration injunction for a few years and would be very disinclined to do one now, given the risks involved!

  3. Dan Bunting states “It is not a surprise that the Court of Appeal would have been extremely reluctant to allow an appeal after such a lengthy trial. It seems to me that in this case they got it wrong.” By inference it means that the trial judge to got it wrong.

    Yet when an advocate seemingly makes a mistake -and also adopted an aggressive approach to his advocacy- it is labelled as incompetence and as a professional conduct matter. Can’t understand why.

  4. McNulty in his response says that In order to support his ground of inadequate representation Charles Bott QC, attacked McNulty’s position in his argument, without calling his client to provide any evidential support. It would seem to me that the Judge allowed Bott QC to do the very same thing for which he had criticised McNulty during the trial.