Boodhoo (a Solicitor), Re [2007] EWCA Crim 14

Case No 2006/04330/D5[2007] EWCA Crim 14
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WASTED COSTS ORDER
MR RECORDER CHAMBERS QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 26th January 2007
Before
LORD JUSTICE PILLMRS JUSTICE RAFFERTY DBETHE RECORDER OF CARDIFF(Sitting as a Judge of the Court of Appeal, Criminal Division)
RE: MR HARRY BOODHOO, SOLICITOR
(Transcript of the Handed Down Judgment of
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MR DUNCAN PENNY for the Appellant
MR DAVID PERRY QC for the Law Society
MR TIMOTHY CRAY for the Bar Council
Judgment
[1]This is an appeal by Mr Harry Boodhoo, solicitor, against a wasted costs order made against him by Mr Recorder Chambers QC on 30 June 2006 under Section 19A of the Prosecution of Offences Act 1985 (“the 1985 Act”). Permission has been given to the Law Society and to the Bar Council to make submissions and they have been represented by counsel before this court, as has the appellant. The prosecution are not represented. The order was made in the sum of £824.75 the assessed costs of the prosecution on 8 June 2006 in the trial of JP at the Chester Crown Court. The Facts[2]The appellant is the senior partner of a firm of solicitors practising in Withington, Manchester. He was instructed by JP, who had been charged with theft, burglary, dangerous driving and driving without insurance. The alleged burglary was of a dwelling house at night. The trial was listed for 8 June 2006. There had been a case management hearing. On 1 June, well out of time, a defence statement was submitted to the court by the solicitors on behalf of JP. It provided:
“The accused takes issue with the prosecution in relation to the following matters: “a. The Defendant denies any involvement in the burglary of the dwelling house at 30 Ploughmans Way, Macclesfield. b. The Defendant also denies stealing from that address a BMW motor car MT54 ZGV and driving that car dangerously. c. The Defendant will state that on the evening of the 9th February he was with a friend in the Tudor Arms public house on Peel Hall Road in Wythenshaw, Manchester until approximately 11pm. d. The Defendant will then state that he went to a fast food restaurant on Hollyedge Road and bought and ate a kebab there. e. The Defendant will then state that at about midnight he returned to his girlfriend’s address whereupon, having watched television for approximately 30 minutes, he went to bed. f. The Defendant will state that the clothes found abandoned next to his girlfriend’s address do not belong to him and he has never had them in his possession.”
On 5 June, counsel on behalf of JP sought an adjournment of the trial so that expert evidence could be obtained. The application was refused by the Recorder of Chester, His Honour Judge Elgan Edwards. (We refer to Mr Recorder Chambers QC as ‘the Recorder’ to distinguish him from the Recorder of Chester who also conducted a later hearing.)[3]JP, who was on bail, was notified of the hearing date and failed to attend. The Recorder found in his ruling, that JP “deliberately and voluntarily failed to attend his trial”. There is no suggestion that his professional advisors were in any way responsible for his failure to attend. On the morning of 8 June, JP telephoned Mr Allerston, a trainee solicitor with the appellant’s firm, saying that he had no intention of coming to court, Mr Allerston told him that in that event a warrant would inevitably be issued for his arrest.[4]Attempts to trace JP during the morning were unsuccessful. Counsel for the prosecution indicated that, subject to a bad character application which was to be made, the prosecution were ready to proceed. At a very early stage, the Recorder stated that he was “minded to proceed with this trial in his absence, subject to the usual checks”. JP was represented by Miss Faux, of counsel, instructed by the appellant, and Mr Allerston, was also present at the hearing.[5]Miss Faux renewed an application to adjourn to enable a statement to be obtained from the pilot of a helicopter equipped with a thermal camera, the video from which was claimed to be relevant to the charges against JP. The Recorder refused that application, stating that, if the evidence was considered important, it should have been sought a long time previously.[6]In her submissions, Miss Faux made strenuous attempts to obtain an adjournment rather than to proceed in JP’s absence. She submitted that innocent explanations had been offered for what appeared to be strong evidence against JP.[7]In the course of further submissions, Miss Faux stated that she had taken instructions from her professional clients and that, if the matter were to proceed as a trial, they were withdrawing. She added:
“Accordingly, I withdraw according to my professional guidelines”
. When the Recorder expressed the hope that counsel would stay as part of her duty to represent JP’s interests, Miss Faux stated that it was “putting the cart before the horse”. The Recorder stated that he regarded her as duty bound to remain and look after JP’s interests. The Recorder added that he would consider the application to proceed with the trial on its merits and on the assumption “that counsel will be representing [JP]”. The Recorder persisted in that approach having been told by Miss Faux that she was “afraid your Honour can’t proceed on that assumption”.[8]On the merits of proceeding in the absence of JP, the Recorder gave a careful and detailed ruling, referring to the case of R v Jones (Anthony) [2003] 1 AC 1. He added:
“It has just been indicated to me, at the conclusion of submissions by Miss Faux, who represents the defendant, that she may be minded to withdraw and not represent the defendant because her instructing solicitors are considering withdrawing. In my judgment, I can see no good reason why either the solicitors in this case, or counsel, would be justified in withdrawing. I would hope and expect that they would both consider that it would be part of their professional duties to represent the interests of their client, and accordingly, I am proceeding on the basis that the defendant will be represented. If, subsequently they choose to withdraw, clearly that will be a separate matter and a matter for them, and a matter on which I will have subsequent comments to make. But as in other cases, I would expect them to be duty bound to continue to represent the defendant, and look after his interests, as I am sure he would wish them to do. For all those reasons, this application that the trial should proceed in the defendant’s absence is allowed.”
[9]Counsel having renewed her concern, the Recorder added:
“Can you listen very carefully? I say this for the benefit of your solicitors. They should consider their position very carefully. I would be – I repeat – very surprised if they felt that their professional duties included withdrawing at this stage of the case to try and frustrate justice, having regard to my ruling. In my judgment, it clearly would not be in the interests of their lay client were that to happen, and I would be very surprised – I put it no higher than that at this stage, although I reserve my right to put it more strongly – I would be very surprised if they felt that they were justified in withdrawing. So, I’m going to give both them and you an opportunity to consider this position. I would take an extremely … well, need I say any more?”
[10]Miss Faux was granted time and spoke to the appellant:
“MISS FAUX: Your Honour, I am grateful for the time. I’ve spoken to Mr Boodhoo, who is the principal of the firm who instruct me, and he has considered matters carefully, but nonetheless indicates that they wish to withdraw. THE RECORDER: Well I can see of no basis on which they are professionally embarrassed. If this compromises the … me being able to proceed, I’m bound to say that subject to argument, I’m likely to make a wasted costs order against them, and report the matter to the Law Society for disciplinary proceedings to take place. I can see of no possible basis upon which they are embarrassed. So who has conduct of this matter? Can I also say this? If the matter isn’t able to proceed, I have discussed the matter – because it’s given me a lot of concern – with the resident judge, the Recorder of Chester, and if the matter isn’t able to proceed, I am likely to direct that the case is listed before him tomorrow, to take appropriate steps with the senior partner having to attend personally and we haven’t reached your position yet, but if you’re not able to assist with the trial proceeding, it’s likely that you’ll have to explain the reasons to him. ”

The judge added that if the appellant did withdraw:

“You can tell him I will be making a formal complaint to the Law Society”.[11]After the short adjournment, Miss Faux told the Recorder that her instructing solicitors had “consulted their legal body and take the view that they are not in a position to properly defend the matter without the defendant’s instructions today, and accordingly withdraw”. Asked what her position was, Miss Faux stated:
“Having consulted with my professional body, and taken advice, without the defendant’s instructions today I too withdraw not being in a position to deal with the trial”
. Asked for reasons, Miss Faux stated that there were “three live witnesses who may give evidence beyond the ambit of their statements in respect of which I would have no instructions”. The Recorder ruled:
“Well, that being so, I am minded to make a wasted costs order against the solicitor personally to pay the costs of the proceedings thrown away. Can I indicate, first of all, in my judgment, now that the defendant will not be represented, I consider that his interests would be prejudiced and therefore I review my earlier decision and this case will not proceed to trial in his absence, but will be adjourned.”
[12]Before proceeding to consider the order made we take the opportunity to state that Miss Faux, at the long hearing on 8 June, and on 9 June, behaved with exemplary tact, and legitimate persistence, in difficult circumstances.[13]On 9 June 2006, there was a long discussion of matters arising from the adjournment before the Recorder of Chester. Mr Dockery and Miss Faux appeared on behalf of JP and Mr King for the prosecution. There is no need, for present purposes, to relate it in detail. Miss Faux confirmed that it was the appellant who made the decision to withdraw and the Recorder of Chester, understandably, expressed his concern about the use of public funds. In the course of his ruling, in which he adjourned the matter for consideration by Mr Recorder Chambers on 30 June, he stated:
“But I do raise the point, which is fairer for a defendant? To have a trial in his absence where his solicitor and counsel remain and put whatever instructions they have received only on Thursday of last week, or merely to effectively abandon the defendant and leave him to his own devices? Well the answer – I would have thought – was obvious as to which is the fairer course”
. The Recorder of Chester added that it was “perhaps an academic point”. He also directed that the conduct of the appellant and counsel be investigated by the Law Society and the Bar Council, respectively, “to see whether there is any professional offence that has been committed”.[14]On 30 June, having heard argument from Mr Dockery on behalf of the appellant, the Recorder made the wasted costs order, giving his reasons. The Recorder cited extracts from the judgment of Rose LJ in R v Hayward, R v Jones and R v Purvis [2001] QB 862 (The case of Jones subsequently went to the House of Lords). Rose LJ set out, at page 872G, guidelines which courts should follow when deciding whether to try a defendant in his absence:
“… (3) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representative [not cited by Recorder]. (4) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.”
Among the circumstances to be considered, stated Rose LJ, as cited by the Recorder: “… (iv) whether the defendant, though absent, is or wishes to be represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence”.[15]The Recorder also cited an extract from the speech of Lord Bingham of Cornhill in Jones, at page 13F: “But the presence throughout at the trial of legal representatives in receipt of instructions from the client at some earlier stage, and with no object other than to protect the interests of that client, does provide a valuable safeguard against the possibility of error and oversight”.[16]The judgment of Thomas LJ in this court on 10 March 2006 in R v O’Hare was also cited. Thomas LJ stated, at paragraph 33: “It would have been a clear additional safeguard for the fairness of the trial if counsel or solicitors on the appellant’s behalf had been present and ensured that all points that could properly be put forward in the absence of evidence from the appellant were clearly before the jury”.

The Recorder stated:

“I expressed the view that I could see no good reason why the solicitors should withdraw, they were fully instructed and ready for trial and it would place the defendant at a disadvantage and so effectively would frustrate a ruling by me to try his case in his absence. I used the expression that I was not prepared to have “a gun put to my head”
. I therefore said that I was going to and did rule on the basis that the defendant was represented. If necessary I could and did review my decision if the solicitors then decided to withdraw. I gave a full and careful judgment on that basis as was fully apparent to both counsel and solicitors.”[18]The Recorder gave reasons for adopting the procedure he had followed on 8 June, stating: “So if he is legally represented at the time the matter is being considered, the judge can assume he will continue to be represented if there is no apparent reason why the solicitors will have to withdraw, particularly as in this case they are fully instructed and ready for trial. If the judge doesn’t make that assumption, the solicitors can simply frustrate the process before the judge before he has been able to assess all the other factors as well as legal representation”.[19]The Recorder added: “I turn to the reason given by the solicitors for withdrawing. The reason given to me at 2 o’clock on the 8th June after having considered the matter was simply that they didn’t know whether the defendant would wish them to continue to represent him or not. I wasn’t told that there were any other reasons, I wasn’t told that there were reasons which they would like to state but were prevented from doing so by reason of professional confidentiality. That was the only reason I gave. I indicated that I needed to know precisely what the reason was and that was the reason that was given. It wasn’t said to me that they weren’t prepared to give a reason, that was the precise reason. I’m afraid in my judgment that is a fatuous reason because it means in every case in which a defendant absents himself immediately before trial it could be said by a solicitor I don’t know whether my client wants me to continue to represent him or not because he is not here. At no stage did this defendant withdraw his instructions, at no stage did he indicate he was not maintaining his plea of not guilty. In my judgment I’m afraid this is a frivolous reason. It was on the only reason I was then given.” (We comment that the Recorder’s recollection of the reasons given on 8 June was not quite correct (see paragraph 11 above)).[20]Affidavits from the appellant and Mr Allerston were before the Recorder on 30 June. From them, it appears that JP had been a difficult client in his reluctance to provide early instructions and his continuing reluctance to provide clear instructions. The appellant formed the view that JP was “a client to be approached with caution and trust was an issue”. He considered that in the absence at the trial of JP to provide instructions in relation to the prosecution evidence, the defence would not be in a position to challenge the witnesses properly and to cross-examine. The appellant accepts that it was JP who had deliberately created the situation which arose on 8 June.[21]It appears to us that in terms of attempting to take instructions from JP and in terms of securing his attendance at court, the appellant’s firm did all that could reasonably be expected of them. It could not in the circumstances be inferred that JP, having decided deliberately to absent himself from the trial, nevertheless wished to be represented at a trial by Miss Faux and the appellant’s firm in his absence.[22]Mr Allerston had been involved in the preparation of the case, a task he was competent to perform, and had attended court on 8 June. Caution was required in the solicitor/client relationship that had developed, the appellant stated. Mr Allerston rang the appellant on the morning of 8 June and the appellant expressed a view that they could not properly represent JP without instructions at trial.[23]Before the final decision to withdraw was made, Miss Faux had consulted senior members of her chambers and the Bar Council. The appellant, by his partner Ms O’Donaghue, had consulted the Law Society.[24]Having given reasons why counsel and the appellant could have continued to act, the Recorder stated:
“In making my decision I do not criticise the Law Society guidance, I criticise Mr Boodhoo for his unreasonable interpretation of it and I have given him and did give him every opportunity to provide good and proper reasons why he withdrew and in my judgment he has failed to do so. Whatever advice he may have been given by the Law Society of course depended on what they were told by him. In any event the ultimate responsibility is his. I’m aware that there is a practice in the Magistrates Courts of solicitors routinely withdrawing if a client does not attend for trial. In my judgment that practice is to be denigrated. I don’t say having regard to the contents of the affidavit, that Mr Boodhoo is one who routinely adopts that course, I decide this case on its own facts and I have taken into account everything including what has been said both by counsel and by him in his affidavits of the way he conducts his practice in relation to other matters.”
Wasted Costs[25]Wasted costs are defined in Section 19(3) of the 1985 Act. They are costs incurred by a party: “(a) as a result of any improper, unreasonable or negligent act or omission on the part of any representative or any employee of a representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay”.[26]In Jones, Lord Bingham stated (at paragraph 13) that the Court of Appeal guidelines in Hayward,Jones and Purvis (at paragraph 14 above) were an ‘invaluable guide’. He made an observation not material for present purposes. Lord Bingham continued:
“15. Secondly, it is generally desirable that a defendant be represented even if he has voluntarily absconded. The task of representing at trial a defendant who is not present, and who may well be out of touch, is of course rendered much more difficult and unsatisfactory, and there is no possible ground for criticising the legal representatives who withdrew from representing the appellant at trial in this case. But the presence throughout the trial of legal representatives, in receipt of instructions from the client at some earlier stage, and with no object other than to protect the interests of that client, does provide a valuable safeguard against the possibility of error and oversight. For this reason trial judges routinely ask counsel to continue to represent a defendant who has absconded during the trial, and counsel in practice accede to such an invitation and defend their absent client as best they properly can in the circumstances. The current legal aid regulations provide for that contingency: see the Criminal Defence Service (General) (No. 2) Regulations 2001 (S.I. 2001 No. 1437). It is in my opinion a practice to be encouraged when the defendant absconds before the trial begins. But the failure to follow it here gives no ground for complaint by the appellant. The Court of Appeal said in their judgment, at p880, para 41: "This defendant, as it seems to us, had, clearly and expressly by his conduct, waived his right to be present and to be legally represented." That conclusion has not been challenged on behalf of the appellant and is in my opinion a tenable conclusion. While there is no direct evidence to show that the appellant knew what the consequences of his absconding would be, there is nothing to suggest a belief on his part that the trial would not go ahead in his absence or that, although absent, he would continue to be represented.His decision to abscond in flagrant breach of his bail conditions could reasonably be thought to show such complete indifference to what might happen in his absence as to support the finding of waiver. I note, however, the reservations expressed by my noble and learned friends concerning the finding of waiver, and recognise the force of their reasoning. If, contrary to my opinion, the Court of Appeal were wrong to make the finding of waiver, and I am wrong to accept it, I would none the less hold that the appellant enjoyed his Convention right to a fair trial, for all the reasons given by my noble and learned friend Lord Rodger of Earlsferry.”
As appears, their Lordships were not at one, in Jones, on the issue of a defendant’s waiver. While resolution of that issue may be a material factor in a decision whether to proceed in a defendant’s absence, it does not bear upon the duties of the legal representatives of a defendant who absents himself. A defendant may (or may not) have waived his right to be represented but that does not determine whether the representatives have a continuing duty to represent. Neither does a defendant’s ‘complete indifference’ as to what might happen in his absence.[27]It is necessary to acknowledge that the court well understands the frustration of the Recorder at not being able to proceed with a trial which had been assigned to him during his sittings as a Recorder. It was a trial which appeared to be ready to proceed and a trial which the Recorder of Chester had refused to adjourn. Mr Recorder Chambers was understandably concerned with the costs and inconvenience incurred and the public interests involved. Moreover, we of course accept that he followed the procedure he did on 8 June because, he made assumptions as to the duties of counsel and solicitor which he felt entitled, on the basis of authority and the facts as he saw them, to make. For completeness, we add that we are told that JP did subsequently plead guilty to the charges against him and was duly sentenced. Submissions[28]For the appellant, Mr Penny submits that the appellant’s decision to withdraw from proceedings was not an unreasonable act, within the meaning given to that expression by Sir Thomas Bingham MR (as he then was) in Ridehalgh v Horsefield [1994] 205, a civil action. Sir Thomas Bingham stated, at page 232F, that the acid test was whether the conduct permitted of a reasonable explanation. If it did, the course adopted might be regarded as optimistic and reflecting on a practitioner’s judgment but it was not unreasonable. He added, at p 237 D:
“It is again only when, with all allowances made, a lawyer’s conduct of proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order.”
[29]When informed by his representative in court of what had occurred, the appellant took advice from the Law Society and acted solely on the basis of what he considered to be his professional duty. He was referred to paragraph 12.08 of the Guide to the Professional Conduct of Solicitors (1999) which provides, insofar as is material:
“12.08 Care and Skill A solicitor must carry out a client’s instructions diligently and promptly. 1. A solicitor must act within his or her client’s express or implied authority. It is essential at the outset for a solicitor to agree clearly with the client the scope of the retainer and subsequently to refer any matter of doubt to the client. If a solicitor limits the scope of the retainer it is good practice for the limits of the retainer to be precisely defined in writing to the client. 2. A solicitor has implied authority to bind the client in certain circumstances. As a matter of good practice, however, it would not be appropriate for a solicitor to rely upon implied authority for non-routine matters other than in exceptional circumstances, e.g. where it was impossible to obtain express authority.”
As expressed, that guidance has a flavour of civil litigation but is also intended to apply to criminal trials.[30]Reference has also been made to paragraph 12.03, headed “Competence to act”, which provides:
“A solicitor must not act, or continue to act, where the client cannot be represented with competence or diligence.”
[31]It is submitted that the Recorder’s decision to make a wasted costs order against the appellant, but not against counsel, was irrational. It is also submitted that there was no causal connection between the decision taken by the appellant and the costs incurred, an issue into which in the event we do not find it necessary to go.[32]On behalf of the Law Society, Mr Perry QC submits that where an accused person voluntarily fails to attend at trial the legal representatives are placed in a difficult position, having regard to the nature of the relationship between lawyer and client. The solicitor should remain and conduct a contested criminal case on behalf of an absent defendant only in those exceptional circumstances where the solicitor concludes that he or she can properly do so in the client’s best interest. Where the solicitor concludes that to continue to act would not be in the client’s best interests, he should withdraw from the case.[33]It is submitted that the appellant acted properly and reasonably throughout and a solicitor in his position must be left with a discretion as to whether he is able properly to represent a defendant in a contested criminal case in the defendant’s absence. Matters will often arise during the trial, because of changes in evidence, evidence not previously disclosed but legitimately called, or for other reasons, on which the solicitor will not have instructions. In such circumstances, while the solicitor’s presence may give an appearance of fairness, the fairness will be more apparent than real. It would be no more than a fig leaf to fairness, as Mr Perry put it. The question posed by the Recorder of Chester on 9 June: “Which is fairer for a defendant?” is not therefore the right question to ask, it is submitted, when considering the solicitor’s duty.[34]It is further submitted that, since for those reasons there may be legitimate grounds for withdrawing, it is not safe, when making a decision whether to proceed in a defendant’s absence, for a court to assume that the defendant will continue to be represented at the trial.[35]Mr Perry submits that the appellant’s concerns were real and substantial and that there was no justification whatever for suggesting that either solicitor or counsel were seeking deliberately to frustrate the Recorder’s exercise of his discretion to proceed with the trial in the absence of the defendant. Mr Perry also refers, whatever may be the other possible consequences of the order, to an alleged lack of logic in the Recorder making the findings he did but then making a wasted costs order against the appellant but not against counsel.[36]There may be cases, submits Mr Perry, in which, as was recognised in the House of Lords in Metcalf v Mardell [2003] 1 AC 120 (paragraphs 60 and 61), the legal advisors may not be able to give reasons for their withdrawal having regard to the client’s legal professional privilege. We accept that submission, but it is not a relevant factor in the present case, the reasons for the withdrawal, as summarised above, having been disclosed to the Recorder before he made his order on 30 June.[37]In Medcalf v Mardell, the House of Lords was concerned with a wasted costs order made against counsel who, on instructions, had made serious allegations of fraud against a claimant. An appeal against the wasted costs order was allowed. Lord Hobhouse of Woodborough considered the constitutional aspect of the wasted costs jurisdiction:
“51. The starting point must be a recognition of the role of the advocate in our system of justice. It is fundamental to a just and fair judicial system that there be available to a litigant (criminal or civil), in substantial cases, competent and independent legal representation. The duty of the advocate is with proper competence to represent his lay client and promote and protect fearlessly and by all proper and lawful means his lay client's best interests. This is a duty which the advocate owes to his client but it is also in the public interest that the duty should be performed. The judicial system exists to administer justice and it is integral to such a system that it provide within a society a means by which rights, obligations and liabilities can be recognised and given effect to in accordance with the law and disputes be justly (and efficiently) resolved. The role of the independent professional advocate is central to achieving this outcome, particularly where the judicial system uses adversarial procedures. 52. It follows that the willingness of professional advocates to represent litigants should not be undermined either by creating conflicts of interest or by exposing the advocates to pressures which will tend to deter them from representing certain clients or from doing so effectively. In England, the professional rule that a barrister must be prepared to represent any client within his field of practice and competence and the principles of professional independence underwrite, in a manner too often taken for granted, this constitutional safeguard. Unpopular and seemingly unmeritorious litigants must be capable of being represented without the advocate being penalised or harassed whether by the executive, the judiciary or by anyone else. Similarly, situations must be avoided where the advocate's conduct of a case is influenced not by his duty to his client but by concerns about his own self-interest.”
[38]At paragraph 55, Lord Hobhouse added:
“The introduction of a wasted costs jurisdiction makes an inroad into this structure. It creates a risk of a conflict of interest for the advocate. It is intended and designed to affect the conduct of the advocate and to do so by penalising him economically. Ideally a conflict should not arise. The advocate's duty to his own client is subject to his duty to the court: the advocate's proper discharge of his duty to his client should not cause him to be accused of being in breach of his duty to the court: Arthur J S Hall & Co v Simons [2002] 1 AC 615.”
[39]In R v G & B [2004] 2 Cr App R 630 the question arose whether counsel and solicitors could continue to act when sensitive material had inadvertently and erroneously been disclosed to them. Considering the position of counsel and solicitors, Rose LJ, Vice-President, giving the judgment of this court stated: “Secondly, the judge was wrong to conclude that counsel and solicitors, albeit restrained by his order, could properly continue to act. As we have indicated, it is for counsel and solicitors, not the court, to make that decision in the light of all the circumstances known to them, some of which, may not, have reasonable legal privilege or otherwise, to be known to the court”.[40]In addition to giving general support for submissions already made, Mr Cray, on behalf of the Bar Council, submits that it is important to consider the basis on which counsel appears, if he or she continues to appear at the trial in a defendant’s absence, particularly if the instructing solicitor has withdrawn. That issue did not receive detailed scrutiny in Jones. Is counsel merely assisting the court in reaching correct legal determinations and giving correct directions to the jury? Is counsel advancing a case on basis of the defendant’s previous instructions, knowing as he will, that the defendant will not give evidence to support his case? That appears to have been the basis contemplated by the Recorder. Is counsel appearing, on appointment by the court, to represent the defendant’s interests, but on the basis that existing instructions have come to an end? Merely posing the questions, highlights the potentially uncertain and unsatisfactory position of counsel who appears at such a trial.[41]In its written standards for the conduct of professional work, the Bar Council have given detailed guidance:
“15.3.1 If during the course of a criminal trial and prior to final sentence the defendant voluntarily absconds and the barrister’s professional client, in accordance with the ruling of the Law Society, withdraws from the case, then the barrister too should withdraw. If the trial judge requests the barrister to remain to assist the court, the barrister has an absolute discretion whether to do so or not. If he does remain, he should act on the basis that his instructions are withdrawn and he will not be entitled to use any material contained in his brief save for such part as has already been established in evidence before the Court. He should request the trial judge to instruct the jury that this is the basis on which he is prepared to assist the court. 15.3.2 If for any reason the barrister’s professional client does not withdraw from the case, the barrister retains an absolute discretion whether to continue to act. If he does continue, he should conduct the case as if his client were still present in Court but had decided not to give evidence and on the basis of any instruction he has received. He will be free to use any material contained in his brief and may cross-examine witnesses called for the prosecution and call witnesses for the defence.”
Thus a distinction is drawn, depending on whether the professional client has withdrawn, between using and not using material in counsel’s brief.[42]Concern as to the role which counsel is performing is central in that guidance. Mr Cray also drew attention to the danger of “fig leaf fairness”, and of counsel being placed in a false position. Counsel who remains does so on a new basis. Counsel is in an exposed position where the defendant has deliberately absented himself; exposed both in relation to the role he is to perform and the possible reaction of the lay client to counsel’s conduct. Conclusions[43]It is not necessary for the purpose of deciding this appeal by a solicitor against a wasted costs order to consider the position of counsel. While, basically, the same considerations apply, there is the additional dimension that the barrister’s client is the solicitor and, if the solicitor withdraws, counsel is formally without instructions. How that fits with Lord Hobhouse’s emphasis on the interests of the lay client may require consideration on a future occasion.[44]It appears that the Recorder relied on the sentence he cited from Lord Bingham’s speech in Jones, that “counsel in practice acceded to such an invitation [to continue to represent a defendant] and defend their absent client as best they properly can in the circumstances”. The key sentence in the full passage from the speech is, in our view, that in which Lord Bingham stated: “There is no possible ground for criticising the legal representatives who withdrew from representing the appellant at trial in this case”.[45]In Jones, the defendants’ legal representatives had withdrawn from the proceedings before the prosecution applied for the trial to proceed in the defendants’ absence. The courts were concerned with the correctness of the decision by the judge to proceed and not with the duties and role of legal representatives when a decision to proceed had been taken. The presence or absence of legal representation is undoubtedly a factor to be considered by the judge in deciding whether to proceed and the attitude of the legal representatives was considered in the context of that decision. (Whether the Recorder would, applying the guidelines approved in Jones, have been entitled to proceed in this case in the absence of JP and his legal representatives does not arise for decision.)[46]Though observations on legal representation were made, it is most unlikely that the House had the advantage of focused submissions on the issue that has arisen in this case. (Mr Perry, for the prosecution in Jones case, did submit: “It may be thought to be undesirable that a defendant should be absent but nevertheless be using his lawyers as a mouthpiece”, thus indicating the potential problem.)[47]A defendant from whom it had been difficult to obtain instructions deliberately absented himself from the court where his case was listed. No inference can be drawn that he expected his legal representatives to continue to represent him in his absence. Witnesses were to be called and the defence was expected to be by way of alibi. In our judgment, the appellant was entitled to conclude, when he had been informed of the circumstances, that he could not properly represent the appellant at the trial. It is a very common experience that criminal trials assume a different shape from that contemplated on a consideration of the papers. The appellant was entitled to decide that the attitude of the defendant and the uncertainties of the trial process were such that he should withdraw. It was not in our judgment an unreasonable conclusion to reach, and, as in Jones, there is no ground for criticising the legal representatives who withdrew. The Recorder did not find the appellant’s conduct to have been improper or negligent within the meaning of the statute; it cannot, in our judgment, be categorised as unreasonable.[48]The Recorder’s strictures about the appellant frustrating the process before the court were not in our view justified. Neither were the Recorder’s conclusions that the decision to withdraw was made quite deliberately in order to frustrate the Recorder from continuing to try the case and that the appellant was intent on thwarting the lawful exercise of a discretion by the Crown Court. The responsibility for deciding whether to proceed with the trial in the defendant’s absence was that of the Recorder. The appellant (and counsel) were frank with the court and the Recorder should not have made the assumption, when making his decision to proceed, that legal representation would continue.[49]While the appellant’s reasons for withdrawing could have been spelt out more fully on 8 June, as they later were by way of statements and submissions, on the wasted costs application, we do not agree that the reason given was either “fatuous” or “frivolous”. The Recorder, with respect, does not appear to have appreciated the professional difficulties which may arise when a defendant voluntarily absents himself. These have been illustrated in the judgments we have cited and we respectfully adopt the reasoning of Lord Hobhouse in Medcalf. The legal representatives must consider their own responsibilities. Fundamental questions of trust between lawyers and litigants arise when a defendant absents himself, as do practical questions as to the conduct of the trial. The role of the independent professional advocate in the administration of justice must be borne in mind and also the need not to undermine it by illegitimate pressures.[50]Of course, we do not wish to discourage solicitors or counsel from giving all possible help to the court and there are likely to be cases in which legal representatives feel able to continue in the absence of the lay client and that it is appropriate for them to do so. An example might be where it can properly be inferred that a defendant expects them to do so in his absence. Another, suggested by counsel, might be when a legal point is available which will, in itself, defeat the prosecution case. These examples are not of course exhaustive. The discretion to withdraw should be respected where the legal representatives genuinely believe that, having regard to the defendant’s best interests, that defendant cannot properly be represented by them. The rules on legal aid do also allow for the appointment by the court of different counsel to represent an absent defendant, counsel without the baggage of earlier instructions. There may be occasions on which that course is appropriate.[51]We add that we consider that the appellant was in any event entitled to an explanation as to why, on the Recorder’s reasoning, the appellant was singled out to be subject to an order. However, it will be clear from our judgment that we are not at all surprised that a wasted costs order was not made against counsel; an order should not have been made against either of them Decision[52]It was for the reasons now given that, at the conclusion of the hearing, we stated that the appeal against the wasted costs order was allowed and the order quashed.