The seductive appeal of aggressive advocacy: and why you should avoid it

It has been a wretched couple of weeks for radical barrister Michael Mansfield’s Took’s Chambers. Not only has the set announced that it is to disband for financial reasons but both Mr Mansfield and one of its senior members Lawrence McNulty have been in trouble with judges for the way they conduct their advocacy.

Mr Mansfield, appearing for the family of Mark Duggan who was shot by police, sparking a summer of urban riots was upbraided by Judge Cutler, a shrewd Crown Court judge brought in to sit as a temporary coroner. In fact the initiative seems to have come not from Cutler but from the jury, some of whom appear to have felt that Mr Mansfield was becoming needlessly aggressive in his cross-examination of a Police Officer.

But the relatively mild and polite judicial criticism to which Mr Mansfield was subjected was, though well publicised, insignificant compared to the obloquy heaped by the Court of Appeal on the head of his colleague Lawrence McNulty over his conduct in a 2011 terrorism trial in which he had defended one Munir Farooqi.

Farooqi was charged with a number of offences, including soliciting to murder. Most of the evidence against him came from conversations that he was recorded having with undercover police officers. Mr McNulty’s strategy was notable for many features, not least its complete lack of success. Mr Farooqi was convicted of every count which he faced, and given a sentence of life imprisonment. After taking a little time for reflection he appealed against his conviction, claiming that Mr McNulty’s incompetent advocacy had deprived him of a fair trial. Indeed, so disastrous was it said to have been that his co-defendants claimed that his behaviour might have turned the jury against them because of their association with him.

McNulty, said his new counsel Charles Bott QC (who had successfully represented Mr Farooqi’s son at the original trial), had been ‘simultaneously inept and provocative.’ His cross-examination was “prolix, extensive and irrelevant, and, on occasions, offensive, and … for some time its underlying purpose was not clear.” The Court of Appeal agreed.

His written advocacy was no better. A crucial written “skeleton” argument alleging an abuse of process was served late in the proceedings, effectively ambushing the prosecution. If the argument had had any merit, which it did not, it should have been made long before the jury were even sworn, thereby avoiding the expenditure of millions of pounds and Mr Farooqi spending two needless years in prison awaiting trial. So angry was the Court of Appeal with this that Lord Judge even drew attention, with a blizzard of “sics”, to Mr McNulty’s misuse of apostrophes.

Mr McNulty began his closing speech by inviting the jury to regard the judge as a “salesman of worthless goods.” He suggested that both the judge and the prosecution were representatives of a repressive state, and accused his co-defendants and others who disagreed with him of “sucking up” to the prosecution. He then misrepresented the evidence and put forward a defence to the jury which the judge had ruled had no basis in law. After no less than nine hours of this one co-defendant was so exasperated that his counsel, Maura McGowan QC, applied for the jury to be discharged so that he at least could be tried away from the baleful influence of Mr McNulty.

Sadly for Mr Farooqi and the other appellants, the view of the Court of Appeal was that despite the shortcomings in his representation the prosecution case was so overwhelming that the convictions were still safe.

Aside from the personal issues – the outcome of the case was of course unfortunate for both Mr Farooqi, and for Mr McNulty (who may now face disciplinary proceedings) – the case highlights the question of counsel’s responsibility for how a case is put. The Lord Chief Justice explained the advocate’s role in a paragraph that may well come to be seen as a classic statement of a defence advocate’s duty.

“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.”

What can be said in mitigation of Mr McNulty’s approach? I have a little, though not very much, sympathy for him. The case against Farooqi seems to have been a strong and simple one, so his counsel did not have much material to work with. The stakes in a terrorism case are very high. A conscientious advocate will want to do everything possible to defend his client. In such cases a determination to do ones best for a client for whom there is in reality not a lot to be said can lead one astray.

And although Mr McNulty’s remarks about the judge being like a seller of worthless goods were almost laughably improper, particularly when applied to a first rate judge like Henriques J., it is no secret that bad and unfair judges do exist. When there is a danger that such a judge may be about to “put the boot in” in the summing up there is nothing wrong with counsel emphasising in his closing speech that the judge’s view of the evidence is of no more value than anyone else’s and that the only views that really matter are those of the jury. Just occasionally if a defendant is to have a fair trial his barrister needs to be capable of standing up to the bully on the bench, even occasionally by being rude and obstinate. On the rare occasions when that happens it is a splendid sight to behold: quite different from the ill-tempered and offensive advocacy of which Mr McNulty seems to have been guilty.

Moreover there may occasionally be a place for arguing that whatever the law says, the jury ought not to convict if it would create a flagrant injustice. Such an argument was famously and successfully run by Bruce Laughland QC on behalf of Clive Ponting, who was tried in 1985 for leaking government secrets about the sinking of the Argentine battleship General Belgrano to the anti-Falklands war MP Tam Dalyell. Laughland argued, despite the judge directing the jury to the contrary, that Ponting had a right to disclose the information in the public interest. It helped that Laughland was an urbane and engaging advocate rather than a political tub-thumper or a clod-hopping nincompoop and as a result was permitted to run his defence despite the trial judge’s obvious disapproval.

If Mr McNulty is capable of Laughland’s charm he evidently decided not to deploy it in defence of Mr Farooqi. His suggestion of an over-arching conspiracy of police, prosecution and judge, with independent minded members of the bar like Mr Bennathan and Ms McGowan “sucking-up” to them instead of defending their own clients was both offensive and ridiculous. And far from allowing his arguments to stand the judge devoted more than an hour in his summing up to a complete demolition of large parts of his closing speech. The occasional sceptical comment from the bench is perfectly unexceptionable in a summing up but the detailed point by point refutation to which Henriques J resorted must be almost unprecedented. The Court of Appeal felt that he was forced into it by Mr McNulty’s flagrant disregard of the most elementary rules of advocacy.

Mr McNulty’s style also raises the broader question of how effective a rude and aggressive court-room style actually is. It is of course impossible to draw any conclusions from this case alone. The other convicted defendants were represented by Joel Bennathan – a dogged and resourceful but, in my limited experience, always a courteous advocate; and by Maura McGowan, also a highly effective and polite barrister. Mr Farooqi’s son was acquitted but it is unlikely to have been because his barrister was the least aggressive. Good manners no more guarantee an acquittal than boorishness ensures a conviction.

Sometimes, especially in very short cases, unpleasant and aggressive advocacy can bear fruit. I suspect jurors at first rather enjoy the spectacle and do not have time to get the measure of the advocate. Clients, especially if they are themselves nasty pieces of work, often enjoy and expect their briefs to “get stuck into” the prosecution witnesses. So advocates with a reputation for aggression and bad manners can sometimes find that it does their careers no harm, at least in the short term.

But the longer the case goes on the less effective such an approach tends to be. Judges quickly, and jurors eventually, tire of such a style and they then turn against the advocate, or they feel sympathy for the witnesses. A barrister who is relentlessly rude and aggressive also finds himself like the boy who cried “wolf.” Sometimes a witness really does turn out to be vile, corrupt or thoroughly mendacious. If the advocate has been rude and aggressive to everyone he does not have anything special to deploy against such a witness, whereas if he is normally polite the change in manner when he is cross-examining a lying scoundrel will dramatically emphasise the scoundrel’s shortcomings.

Ultimately every advocate aims to persuade. It is no good trying to brow-beat or bully a jury. Its members do not have to explain their verdict or answer to anything but their own consciences. If they feel that a barrister is needlessly aggressive or unfair then they will be far less likely to accept his arguments.

It was ironic that the judgement in Farooqi was delivered on the very day that registration opened for the Quality Assurance Scheme for Advocates, known to all in the profession as “QASA.” For supporters of the increasingly embattled scheme this case must have seemed something of a godsend. This is not the place to go into all the arguments for and against QASA (I have written about some of them here), which is itself being challenged in the Administrative Court. A couple of points can, perhaps, still be made. First, Mr McNulty was the only leading counsel in the case who had not attained the rank of “Queen’s Counsel”. None of the QCs involved in the case were subjected to any criticism. Secondly, had QASA been in operation it would have allowed Mr McNulty to obtain accreditation at the highest level, exactly the same as a QC. All that would have been required of him would be to do a few trials – on his best behaviour – in front of some friendly judges and he would then have been able to market himself as the equivalent of a QC. It might be thought that an accreditation scheme which would allow someone like Mr McNulty to gain a status equivalent to Queen’s Counsel is a scheme which needs some urgent attention.

Few barristers will ever find themselves publicly lambasted to quite the same extent as Mr McNulty, but if it does nothing else the case should serve as a constant reminder that with the great privilege of advocacy comes a corresponding duty. No scheme of registration and accreditation will ever replace the individual advocate’s duty to practice the craft with discretion, tact and responsibility.