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.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

10 thoughts on “The seductive appeal of aggressive advocacy: and why you should avoid it”

  1. Great post Matthew. Especially on style. It does seem to me that style is very closely allied with judgement. The better a barrister is, the more s/he is able to tailor his style to the particular case. If you feel obliged to insult the Judge and your co-accused’s representatives, your ought at least to have asked yourself first whether it really is the case that everyone is out of step except you…

    I mention the point because, amongst QASAs many and manifest deficiencies, it does not even attempt to assess this key component of judgement in this sense. It is replete with invitations to the Judge to comment on whether the points you lost on were properly taken, but it does not seek – nor is it able – to assess the feel for the case and its atmosphere. Ponting is a supreme example of why Laughland was a great advocate: he saw what was coming, deflected it as best he could, put his point properly and read the jury right.

    QASA is not simply deficient in this respect, but actually inimical to great advocacy. Had Laughland been assessed what would the Judge have said? Its defenders assert that something is better than nothing. That is rarely true. Usually the something is neutral or an expensive irrelevance. Alas, QASA is worse than nothing.

    Cheers.

  2. I think those who wish to comment on the case should be aware that much of the factual material relied upon by the Court of Appeal and their findings, is in dispute (including at least one matter alleged to be said by me in quotation marks, which attracted significant criticism by the Court of Appeal and is repeated above, which the transcript proves was never said by me at all). For reasons which will be obvious from that which is below, this is not the appropriate time and place to set those matters out. However perhaps the following is worth, considering and pause for thought:

    1. Though I indicated that I would be happy to attend and give evidence no party nor the Court of Appeal themselves saw fit to take me up on that offer. The fact the offer was made is omitted from the judgement.

    2. I provided the Court of Appeal with my detailed written response to the allegations of misconduct submitted to the BSB, dated 11th April 2012, which runs to 44 pages. They were also supplied with a separate written response to the claim that Mr Farooqi was given inadequate advice not to give evidence and all my written instructions. Thus the detail of my anticipated response on oath was known to all. This is referred to obliquely at paragraph 55 of the judgement.

    3. Defence Counsel on the appeal had a duty to represent their client’s interests as they thought best. In order to support his ground of inadequate representation Charles Bott QC, attacked my position in his argument, without calling his client to provide any evidential support. At no time was it ever suggested that evidential support from his client was anticipated.

    4. To a slightly lesser extent prosecution Counsel also attacked my position, treading the delicate line of arguing that an otherwise appealable summing up (which they requested at trial) was justified by my conduct, but nevertheless the conviction was safe. Successful navigation of that route was the only way appeal could be resisted, a fact which was obvious even before the summing up was delivered. The obvious tensions between the prosecution objectives has been commented on by others.

    5. No one in the Court of Appeal had any role or duty to represent my interests.

    6. In light of the above it is not surprising no party called me to give evidence. What is both surprising and troubling is that the Court of Appeal chose to make adverse findings about me without calling me of its own motion and giving me the opportunity to respond on oath.

    7. I will seek redress for the conduct of the Court of Appeal and Charles Bott through the appropriate channels.

    8. The disciplinary hearing in respect of my conduct is due to be heard at the end of January 2014. I now propose to resume what I hope (perhaps in vain) others will regard as dignified silence until that event.

    Lawrence McNulty
    6th October 2013
    Tooks Chambers

  3. Thank you for another thoughtful and thought-provoking article. What is also clear iit has been said elsewhere- is that whatever the position regarding Mr McNulty is-it can be dealt with by the exisiting system and we do not need any more regulation foist upon us.

  4. Another excellent post by Mathew.
    Whatever the rights & wrongs of the criticisms of McNulty, isn’t it a shame that Igor Judge’s last task as LCJ should be heaping something nasty on the head of an advocate?
    Rudeness is a weapon to be used very sparingly, and only when you are sure that it won’t reflect badly on you & yr client. Withering politeness normally works better.

  5. On 30th July 2014 a Bar Disciplinary Tribunal delivered their reasons for convicting me on four separate charges of professional misconduct, relating to R v Farooqi. These convictions are currently under appeal.

    I have now set up a web page at http://lawrencemcnulty.wordpress.com the purpose of which is twofold. First, to date examination of the evidence in this case has been restricted to relatively few people. For the first time the documents published here will permit those who wish to do so to examine the evidence in order to form their own conclusions as to whether I am guilty of professional misconduct, or not. Included is a full transcript of my speech and the written reasons of the Disciplinary Tribunal.

    Second, the reasons supplied for my conviction in respect of charge 4 set out requirements for matters to be included in defence statements which , so far as I am aware, appear nowhere else. As the implication of their findings is that failure to comply with these requirements amounts to professional misconduct, it is important that those who practice at the criminal bar should know what they are.

    Lawrence McNulty

  6. Excellent entertainment. Given the heinous nastiness of the case in question, and how the result seems unquestioned, it would seem justice was served on both the defendant and the chap who tried to get him off – using emotive nonsense about “free speech” and similar which are ideas the Quilliam Foundation describe as “poisonous rhetoric”. And McNulty’s colleague, a certain Mr Mansfield, tried to defend Mark Duggan. Classy.

    I note that Tooks Chambers no longer exists which seems poetic. Their web site refers to “hold (ing) the state to account” in the course of which, in this case, meant opposing the imprisonment of a sick and dangerous individual.

    I believe the internet colloquial for all of this is LOL.

  7. I have long regretted that politically motivated defendants (IRA, Islamist, &ca) beat well-trodden paths to the doors of a very few politically motivated lawyers – by no means always to those defendants’ advantage. Perhaps too many judges have been handling like-minded but more able lawyers with kid gloves, lulling Mr McNulty into supposing that passion is a substitute for the rules.

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