"..this is not a game: this is the administration of justice."
With these, and a number of other withering comments, the Administrative Court dismissed an application for Judicial Review brought on behalf of Mr Zafar Ali who had been clocked by police at 117 mph in his Porsche motor car. The case was fully reported on the 19 July 2012 and stands as an example of just how important it is for legal advisers not to be seen by the Court as anything other than completely open and straight in their dealings with the Court and the prosecution.
To do otherwise impacts on both the solicitor and the client (usually the client who ends up paying a fortune in costs), and at a time when the loophole myth is perhaps bigger than ever, this is an opportune time to address some basic and sometimes forgotten rules of engagement.
Mr Ali engaged the legal services of a very well known road traffic practitioner and appeared before Mid Sussex Magistrates Court to face a simple enough speeding allegation. There was undoubtedly some procedural complexity despite the simplicity of the allegation, but out of that, according to the High Court, was borne a plan to try and escape conviction. The High Court Judge criticised the conduct of his solicitor and said it amounted to sharp practice. The sin was a failure to disclose the true nature of a defence purely for tactical reasons.
Why does this matter you may ask. It matters because in 2006 solicitors and legal representatives were reminded in blunt and clear terms, again by the High Court, that the 2005 Criminal Procedure Rules brought about a sea change in the way criminal cases were henceforth to be conducted. The overriding objective was that criminal cases be dealt with justly, to include the acquittal of the innocent, the conviction of the guilty and dealing with cases fairly and expeditiously. Courts have a duty to manage cases and to do so parties must put their cards on the table. The court must see that justice is done, and that does not involve allowing people to escape on technical points or by attempting an ambush.
If a defendant pleads not guilty, a case management hearing is arranged, and both the prosecution and the defence must tell the court what the issues are. There is a duty on solicitors to tell the Court and the prosecution what points his client wishes to take and it is impermissible to be selective. The Court said this in 2006 “The days of ambushing and taking last minute technical points are gone. They are not consistent with the overriding objective of deciding cases justly…”
This does not mean that I cannot robustly defend my clients; I can and do. The point is that there is a difference between robust defence and game playing. The former attracts respect but the latter does not and the Courts stamp on it. It perpetuates the myth being increasingly spread that with the right tactics a road traffic conviction may be derailed and avoided. This is a shame because very many road traffic cases are properly contested and won on merit and not on loophole. I have been conducting road traffic defences for nearly 30 years and have seen the acquittal of very many deserving motorists on merit and the shame is that my discipline is being widely discredited as a hunting ground for technical and tactical defences.
Mr Ali’s tactical approach came unstuck. The Court’s criticism of his legal adviser was blunt and yet another marker was put down for legal representatives as to how to conduct themselves. One can only speculate how much it all cost Mr Ali. You can be sure that Courts have fully digested this case and will be ready to deal with parties who fail to put their cards on the table. This nearly always involves paying extra costs so it’s never cheap. In addition, one’s credibility disappears in a flash.
Clients need to know that from a suitably experienced advocate they will get robust representation within the confines of the procedural rules that apply to criminal proceedings. That is indeed our duty; client’s interests come first and must be fully promoted. I have no problem with that, but there is a line I am not permitted to cross. If I do, it damages me and it ultimately damages my client.
Be careful what you wish for.
You can read the transcript of the case here.