Fri, 05 Mar 2021
A new authority from the Court of Appeal has offered guidance to Counsel on what their professional obligations are when a defendant’s case changes part way through.
In the case of R v Daniels  EWCA Crim 44, the defendant faced a trial for murder, the allegation being that the defendant had deliberately shot his victim with a handgun he had brought to the scene. A bullet casing with the defendant’s DNA was found at the scene and mobile phone evidence was also used to link the defendant to the crime.
The defence case was that whilst he accepted driving the van in which the victim was shot the shooting itself had arisen because the victim had produced a gun, a struggle ensued, during which the gun was discharged by the defendant as he sought to defend himself.
The Prosecution relied on an expert report which ruled out the chance of the victim having been shot by a ricochet, the defence expert disagreed and said a ricochet shot was possible. Part way through the trial the clothing the deceased had been wearing was examined, and due to that examination, the defence expert agreed with the Prosecution expert that ricochet could be ruled out.
As a result of that change of opinion from the defence expert, the defendant’s entire legal team withdrew citing a “change of instruction”.
Steps were taken to identify a new legal team and a local firm were identified, that team asked for an adjournment of 2 weeks to get up to speed with the case. The Judge indicated this was an unacceptable delay and adjourned the case for 5 days. A new legal team was identified but after a conference with the defendant he dispensed with their services and stated he would represent himself. He applied for a further adjournment to obtain a fresh legal team, but the Judge refused, and the trial continued with the defendant representing himself.
The defendant gave evidence as to how the shooting had happened, he maintained it was during the course of a struggle but did not mention a ricochet. The defendant was convicted and sought to appeal.
The Court of Appeal were critical of the original legal team withdrawing, they noted that there was no material difference between the defendant’s initial instructions and his evidence at trial. Under the Bar Code of Conduct Counsel is entitled to cease to act and return instructions if there is a substantial reason for doing so. A material change of instructions which involved the defendant resiling from an earlier acceptance of a significant part of the case would be an acceptable example, such as initially accepting identification and presence, but then part way through trial claiming alibi, but here the Court of Appeal noted that there was not a complete change of instructions, if anything the defendant was accepting more of the Crown’s case and such a position would not cause professional embarrassment such that Counsel ought to withdraw.
The Court of Appeal offered guidance and stated that events moved far too rapidly, if a situation such as that arose in future then lawyers need to make a full and clear record at the time, explaining the detail of the circumstances that have led to the decision. They ought to take professional advice from the Bar Council, and if possible, the Leader of their Circuit, all parties should take time to consider their professional obligations pursuant to the Code of Conduct and whether the change of instructions constitutes a substantial reason.
If the situation arises Counsel should always consult the Ethics Hotline - 020 7611 1307 Lines are open 09:15-17:15 Monday-Friday, and always seek the advice of a senior member of Circuit.
Written by Michelle Heeley QC from No5 Barristers' Chambers.