Counsel\u2019s duty to soldier on

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A 2007 case before the Court of Appeal (Criminal Division) of England and Wales is instructive on counsel’s duty to soldier on.

In that case, R v Ulcay; R v Toygun [2007] EWCA Crim 2379, the trial of a number of accused persons, including Ulcay, for conspiracy to facilitate the commission of breaches of Immigration law began on September 5. After the close of the prosecution case, Ulcay completely changed his instructions. On  October 18, immediately before Ulcay’s case was due to be presented to the jury, his counsels applied to the judge to withdraw from the case on the grounds of professional embarrassment.

The judge allowed the application, stating that counsels were in “an impossible professional situation”. The case was adjourned to enable new counsels to take further instructions. On October 20 new counsels sought a four- to six-week adjournment. The judge was prepared to grant only a short adjournment of three days for counsel to read the papers and a day for an additional conference with Ulcay.

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Counsels told the judge that in those circumstances they would be unable to act, having taken advice from the Bar Council (the representative body for, and approved regulator of, barristers in England and Wales).

On October 24 two new counsels appeared on Ulcay’s behalf. They asked for a seven-day adjournment to prepare the case. The judge refused but agreed to adjourn for a further three days. On October 26 counsels reapplied, seeking a two-week adjournment. The judge refused. He stated that it was not in the interests of justice for a long trial to be allowed to be derailed because one of the accused persons had changed his instructions.

The second new team of lawyers then withdrew from the case. The trial proceeded on October 28 with Ulcay unrepresented. He was convicted. He appealed against conviction submitting that the learned judge had been wrong to allow counsels to withdraw from the case; that the learned judge had been wrong not to have allowed new counsels more time to read themselves into the case; and that the learned judge should have discharged the jury from reaching a verdict in his case.

The Court of Appeal took occasion to consider whether, and if so, in what circumstances, counsels instructed immediately before the beginning or during the course of a trial could refuse to accept instructions on behalf of an accused person because of the difficulties created by adjournments. The court considered paragraph 701(b)(ii) of the Bar Code of Conduct which directed that a barrister (advocate and solicitor here in Malaysia) should not undertake any task for which he did not have time and opportunity to prepare for and perform.

Sir Igor Judge (yes, Judge is His Lordship’s name), then president of the Court of Appeal, delivered the court’s judgment. The issues that arose before the court were not lost on His Lordship. At the outset, His Lordship said: