Defendants being charged with a number of terrorism-related offences – First defendant’s trial counsel’s conduct at trial being criticised by judge and prosecution counsel on numerous occasions during trial

R v Farooqi and others: Court of Appeal, Criminal Division: 30 September 2013

Between May and September 2011, the defendants, MF, MN and IM, were tried on an indictment which contained 10 counts and were all terrorism-related offences. MF was represented at the trial by counsel, LM. The case for the prosecution was that each of the defendants had engaged in conduct designed to radicalise individuals to commit violent jihad in Afghanistan and Pakistan. Part of the prosecution case relied on the evidence of two undercover officers, R and S, who worked separately, and, to varying degrees, had come into contact with the defendants.

During the prosecution’s case, R and S were cross-examined by LM. The judge intervened that cross-examination on a number of occasions (see [42]-[44] of the judgment). Thereafter, LM unsuccessfully applied to exclude the evidence of R and S submitting that they had engaged in entrapment. The prosecution strongly challenged that application and the judge duly rejected LM’s application (see [50]-[51] of the judgment). The judge at that point expressed his concerns about the timing of LM’s submission and what had then appeared to have been the purpose of his cross-examination of R and S.

The judge stated that if he had known what was afoot with respect to LM’s cross examination, the interventions would have been continuous and would have brought the proceedings to a halt. The judge ruled that entrapment was not a defence. LM also made a submission of no case to answer on the grounds that MF had advocated only ‘defensive jihad’ for the purposes of self defence, and the jury could not therefore conclude that he had been encouraging R and S to act unlawfully or other than in necessary self defence.

However, that had not been referred to in MF’s defence case statement and subsequently LM’s submission of no case to answer was rejected. MF did not give evidence at the trial. Following LM’s closing speech, which was described, amongst other things, as a ‘thinly veiled allegation of judicial bias’, the judge and prosecution discussed the possibility of discharging the jury. Although, subsequently, the prosecution did not apply for the jury to be discharged, MN’s defence counsel did apply to discharge the jury and for MN’s case to be severed. The judge ruled that the trial would continue. LM came up for heavy criticism by both the judge and the prosecution (see [82]-[86] of the judgment).

The judge’s summing up covered five days and began with him providing the jury with a written route to verdict, which included the list of topics which the summing up was going to cover, including one entitled ‘corrections’. It was during the corrections section that the judge dealt with LM’s closing speech (see [91]-[93] of the judgment).

The judge also reminded the jury that they were the sole judges of fact and that his corrections should not impinge upon the case of any of the defendants (see [94] of the judgment). Following deliberations, the jury returned guilty verdicts on all the counts that each defendant faced. MF was convicted on five counts: one count of engaging in conduct in preparation for acts of terrorism contrary to section 5(1) of the Terrorism Act 2006 (the 2006 act) (count 1), three counts of soliciting to murder contrary to section 4 of the Offences Against the Persons Act 1861 (the 1861 act) (counts 3, 6 and 7) and one count of dissemination of terrorist publications contrary to section 2(1)(a) and (2)(b) of the 2006 act (count 4).

He was sentenced to imprisonment for life with a specified minimum term of nine years on count 1, to imprisonment for life with a specified minimum term of seven years on counts 3, 6 and 7 and to a term of four years’ imprisonment on count 4. The sentences were concurrent. MN was convicted of one count of engaging in conduct in preparation for acts of terrorism contrary to section 5(1) of the 2006 act (count 1) and of two counts of dissemination of terrorist publications contrary to section 2(1) (a) and (2) (b) of the 2006 act (counts 2 and 5).

He was sentenced to six years’ imprisonment on count 1, three years’ imprisonment on count 2 and four years’ imprisonment on count 5. The sentences were concurrent. IM was convicted of one count of engaging in conduct in preparation for acts of terrorism contrary to section 5 (1) of the 2006 act (count 8) and two counts of soliciting to murder contrary to section 4 of the 1861 act (counts 9 and 10). He was sentenced to imprisonment for public protection with a minimum specified term of five years on counts 9 and 10, concurrent, with no separate penalty on count 8. The defendants appealed against conviction.

MF contended that he had not been completely represented at trial with the result that his defence was not presented to the jury coherently or at all. Instead, LM relied upon a series of legal arguments and submissions that had been misconceived in law and untenable. LM also consistently defied rulings of the court and behaved in a manner that was unprofessional and provocative. Those (cumulative) failings were so fundamental that in the exceptional circumstances of the case, he was denied a fair trial.

Further, MF contended that his instructions were wholly obscured by the way in which his case was conducted; he had not given any meaningful or informed consent to the conduct of his case so as to be responsible for it. MN adopted the arguments advanced by MF and contended that as a consequence of the way MF’s case was conducted, the judge had little or no option but to take on the role of prosecutor to redress it. The summing up was flawed in consequence, as it contained a series of observations on the facts which favoured the prosecution. To consider the case against him, the jury had been required to give fair and objective interpretation to his explanation given in evidence for words said or acts done.

But in circumstances where the judge had to ‘redress the balance’ the effect had been to prejudice the case for MN. The jury in his case alone should have been discharged. The combination of the conduct of the trial and the content of the summing up must have had such an impact on his, MN’s, case as to create a real risk of unfairness. IM contended that the unusual circumstances surrounding the conduct of the defence of MF at trial had been such that MF’s defence had not been properly or adequately put before the jury. Given the powerful links between MF and IM, that was sufficient to cast doubt on the safety of IM’s conviction.

Further, the summing up was flawed because it contained a variety of observations on the facts of the case which favoured the prosecution, aggravated by the fact that the judge had compromised the warning about putting aside his own views by correcting comments made by LM. In the peculiar circumstances of the trial, what was described as the Watson direction (see R v Watson [1998] QB 690) combined with the chronology of the verdicts, raised concerns about the way in which the jury had approached their deliberations and returned their verdicts.

The appeals would be dismissed.

(1) In dealing with the issue of the fairness of the trial, it had to be emphasised that the conduct of the trial by the judge had been impeccable. He remained patient under considerable provocation, and in the public interest he sought to salvage an important lengthy trial from shipwreck. There was no basis for criticising the judge for lack of fairness or balance in his approach to his responsibilities. It was a matter of regret that there were ample grounds for criticising the conduct of LM at the trial. With respect to the summing up, the issues had been fully and fairly explained to the jury and left for their decision, and the necessary process of correction had been handled so as to ensure that the normal processes by which the jury addressed the evidence and reached their eventual conclusion had not been undermined. Notwithstanding many unfortunate features of the trial, the convictions of the defendants had followed a fair trial (see [101], [104], [119] of the judgment).

(2) Concerning MF’s failure to give evidence, there was no credible material to support the proposition that MF had not made an informed decision or that he had been improperly advised. The submission that he should have been told in terms that he needed to go into the witness box had the disadvantage of being made in hindsight and from a different tactical viewpoint. It also failed to acknowledge the devastating nature of the cross-examination to which MF would have been exposed, and its possible damaging impact on the remaining defendants.

It was clear that there had been significant discussion of the pros and cons of giving and/or calling evidence; it was clear that MF had been aware that he had a free hand in the matter; and the overwhelming inference was that he had understood the general approach of the defence, which had been not to challenge the primary evidence given, but to seek to set it in a context favourable to him. There was nothing in that point.

There was, therefore, no material to suggest that the fairness of MF’s trial had been undermined by the circumstances in which he came to decide that he would not give evidence, and on that issue the court were not satisfied that LM’s conduct of the defence had fallen below the appropriate level of professional competence.

Moreover, MF was an intelligent man with a good command of English who had enjoyed a lengthy working relationship with his legal team over many months. He had been in court and would have understood discussions. Had he wished to confer with his legal team, he had needed only to ask them to come and see him. Had he wished to complain that he had in some way not made a free informed decision as to whether to give evidence, there had been ample opportunity for him to have done so. The complained based on MF’s failure to give evidence was not sustained (see [142], [143], [148] of the judgment).

(3) The judge had not been wrong to give a Watson direction. To have ignored his concern that the jury had been invited to take an inappropriate approach to their deliberation would have been a dereliction of his duties. The advice given in the Watson direction was precisely apt to cover the situation. In the unusual circumstances of the case, the Watson direction had been an appropriate way of ensuring that the jury approached their responsibilities on a correct basis. Moreover, the order in which the jury considered counts was a matter for it to determine. There was no properly arguable basis for complaint in relation to that (see [152], [157] of the judgment).

Per curiam: ‘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’ (see [108] of the judgment).

Charles Bott QC and Christopher Henley (instructed by Stephen Lickrish & Associates) for MF; Maura McGowan QC and Ian McMeekin (instructed by the Registrar of Criminal Appeals) for MN; Joel Bennathan QC and Peter Wilcock QC (instructed by the Registrar of Criminal Appeals) for IM; Andrew Edis QC and Stuart Baker (instructed by the Crown Prosecution Service) for the Crown; John Ryder QC for the Bar Council.