A Court of Appeal judgment that discouraged use of the term ‘McKenzie friend’ and described the bad experiences that some court users have had with unqualified advisers has met mixed views from the profession.
The judgment in R v Conaghan & Ors, handed down by Lady Justice Hallett, considered four renewed applications for leave to appeal against conviction.
They were listed together because in each case a third party who was not legally qualified had helped the defendant. One called himself a ‘McKenzie friend’ while two defendants were helped by students at Northumbria University and BPP Law School. The students did not represent the defendants in court.
Each of the appeals was rejected.
The judgment says the term 'McKenzie friend' is not appropriate in criminal appeals. ‘Terms such as “applicant’s friend” or “applicant’s helper” might well be more appropriate,’ the judgment adds, though it said it would be wrong to express a concluded view until it had seen the results of the consultation into McKenzie friends currently being considered by the Judiciary.
The judgment stops short of calling for a change in the rules regarding unqualified advisers and reiterates the position that the court will only allow a non‑qualified third party to address the court in ‘exceptional circumstances’ decided on a case‑by‑case basis.
According to Hallett, third party helpers have raised applicants' hopes, ‘taken up a very considerable amount of time and resources of the court, and put an applicant at risk of a loss of time order.’
Greg Foxsmith, criminal defence advocate and president of the London Criminal Courts Solicitors’ Association, said the court was right to discourage the use of unqualified unregulated advisers. ‘There has been a huge increase in cases where deadlines have been missed, loss-of-time directions made, and unmeritorious appeals clogging up the courts,’ he said.
However, he added that the judgment fails to recognise that the rise in cases where unqualified advisers are used are a result of inadequate funding. ‘To ensure that cases are prepared and presented properly in the first place, and that appeal advice where necessary is properly and promptly conducted, a properly funded accessible legal aid system is required,’ Foxsmith said.
Steven Bird, chairman of the Criminal Appeal Lawyers Association, echoed Foxsmith’s views on funding and said it was becoming increasingly difficult for those convicted of offences to find solicitors and counsel willing to take cases and that, as a result, those wishing to challenge their convictions often turn to unqualified people or organisations.
‘These organisations and especially the student groups are an invaluable resource to those fighting miscarriages of justice especially given the increasing difficulties in legal aid funding for this work. However, they will need to consider this judgment carefully to ensure that their work is adequately supervised but we hope that they will not be discouraged in their efforts by the judgment,’ Bird added.
Ray Barry, chair of the Society of Professional McKenzie Friends, said the judgment should not be seen as having a wider significance. ‘I don’t see much of significance in this judgment other than the criminal division has had a handful of bad experiences with law students and other third-party advisers in this case. There seems no proposal to depart from the principles applied in the civil and family jurisdictions, where McKenzie friends are more prevalent.’