Judge: Lord Judge LCJ, Treacy LJ and Sharp J
Citation:  EWCA Crim 1649
Summary: We report this frankly extraordinarily appeal in a criminal case for one very specific reason, namely the very strong comments of the Lord Chief Justice (giving judgment on behalf of the Court of Appeal) as to the responsibilities of trial advocates. Whilst the context is entirely different, and the facts therefore do not bear any repetition here (but are worth – sorry – reading), the comments of the Lord Chief Justice do merit setting out here in their entirety because of their wider relevance. In criticising in extremely strong terms the conduct of a criminal trial of a very senior junior, a Mr McNulty, the Lord Chief Justice noted that:
“107. The question was raised whether Mr McNulty discussed his proposed forensic strategy [of what was described in the preceding para as ‘an all-out attack on every aspect of the prosecution case, sometimes at a very late stage in the process, in circumstances which can be described as “ambush” and of confrontation with and disobedience to the judge’] with his client. However, whether he did or not, and even assuming that his client agreed or encouraged it, the client’s ‘instructions’ were irrelevant. 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.”
We would suggest that exactly the same holds true in proceedings before the Court of Protection, an arena where – especially in the context of personal welfare proceedings – the emotional temperature can frequently run very high with knock-on consequences for the nature of the instructions given by lay clients.