The duty criminal defence lawyers owe to their clients is being overridden in the cause of better court administration, says Matthew Hickling

Some criminal defendants do not wish to assist a process that seeks to convict them. As the only non-volunteers in the process, they may prefer to remain mute and instead see whether the prosecutor has a case to answer. They do this not necessarily because they know that they are guilty. It may often be because they do not know, in the light of the information that they have, whether they are guilty or innocent. There is a wide range of genuine circumstances in which criminal defendants who may be innocent might not wish to give an early account of themselves or name others.

The Kelly case

Criminal courts understandably become frustrated when defendants do not assist in the process. As courts seek ever more actively to manage case progression, the problem has become something of a battleground. But what can be done about it? In the case of R (Kelly) v Warley Magistrates’ Court [2007] EWHC 1836 (Admin) (the Kelly case), Kelly was accused of damaging a police vehicle. In pre-trial proceedings, a Deputy District Judge (DDJ) ordered ‘the defence’ to make early disclosure to the Crown of their witness details. The validity of the order was tested in the High Court where Lord Justice Laws ruled that the DDJ’s order had been ‘futile’.

The futility of the order lies in the fact that it sought to compel Kelly to disclose legally privileged information. Who Kelly would or might call as his defence witnesses formed part of privileged communications with his solicitors. The court had no power to interfere with legal privilege. Lord Justice Laws thus reaffirmed the principle of legal privilege that has been described by the courts as ‘more than a mere evidential rule‘ and ‘the foundation upon which the administration of justice rests‘. The common law rule is that legal privilege may only be removed by express powers in primary statute that have been deemed by parliament to be necessary for its removal.

In judgment, however, Lord Justice Laws mused, obiter, that the DDJ might have made a ‘proportionate’ order rather than an ‘absolute’ order. Such an order might be that the defendant not be permitted to call witnesses at the trial save to the extent that their details had been provided beforehand to the Crown. It is this obiter musing that appears to have been seized upon as identifying a deficiency within the criminal process that was in need of a cure.

Criminal procedure

The April 2008 amendments to the Criminal Procedure Rules (CrPR) announce themselves to be the cure for this perceived deficiency. They contain express provisions for criminal courts to impose sanctions on defendants who fail to provide information that will help the court to manage cases. Rule 3.10.1 makes it mandatory for the court to establish the issues in a case ‘with the active assistance of the parties’. Put another way, it makes it mandatory for the parties to ‘actively assist’ the court. Rule 3.10.2 empowers the court to ‘require’ a defendant to furnish the court with a long list of information. This includes, at 3.10.2(i), the very witness details that, in the Kelly case, Lord Justice Laws acknowledged as having the protection of legal privilege.

But to what extent do the CrPR have authority to interfere with legal privilege? The CrPR are made under section 69 of the Courts Act 2003. The act contains no authority by express words or by necessary implication to interfere with legal privilege. Rule 3.5(6) goes on to state that ‘if a party fails to comply with a rule or direction, the court may:

(a) fix, postpone, bring forward, extend, cancel or adjourn a hearing;(b) exercise its powers to make a costs order; and(c) impose such other sanction as may be appropriate.‘

Authorising unspecified sanctions against those who seek the protection of legal privilege surely goes directly against the ruling in the Kelly case. It also goes against the Lord Chief Justice’s rider to the CrPR, that emphatically restates the robustness of the adversarial criminal process and the protections that come with it. It is therefore difficult to see how criminal courts will be able legitimately to deploy the sanctions now suggested.

The CrPR have sought to construe the ratio in the Kelly case as being something that it was not. The judgment did not identify a lacuna in the powers of the criminal courts. Rather the judgment confirmed the supremacy of legal privilege over everything bar an express statutory measure. But the CrPR now seek to use their own interpretation of the ratio as a means to seek to enable courts to interfere with legal privilege.

It is hoped that the lawfulness of this will soon be tested. If it is, the courts might usefully consider the directly related issue of an unrepresented defendant. If not, our criminal justice system will continue its quietly unauthorised drift from a robust adversarial process towards a hybrid inquisitorial one, in which every accused is presumed to be guilty.

Question of obligation

The DDJ’s order in the Kelly case was not expressed as being made against the defendant but against the defence. It has become the habit of many criminal courts to express case progression orders in this way. The question is whether it is an attempt to fix obligations upon the defendant’s lawyers.

It is true that rule 1.2 of the CrPR imposes overriding duties upon a ‘participant’ in proceedings to ‘prepare and conduct the case in accordance with the overriding objective’. The expression ‘participant’ is stated in rule 1.2(2) to include ‘anyone involved in any way with a criminal case’. This firstly includes the defendant, who is somewhat remarkably required by the CrPR to cooperate with his own prosecution. Secondly, it undoubtedly includes the lawyers. The ‘overriding objective’ is set out in rule 1.1 and requires participants, at 1.1(2)(e) to deal with a case ‘efficiently and expeditiously‘.

Solicitors’ conduct

But there is good reason why lawyers must ensure that case progression directions are not ordered against them. Rule 11.02 of the Solicitors Conduct Rules 2007 states: ‘You must comply with any court order requiring you or your firm to take, or refrain from taking, a particular course of action.‘ The 2007 rule replaced the former advocacy principle 21.14 that placed a qualified obligation upon lawyers to comply only with those orders of the court ‘which the court can properly make’. This protected solicitors from the need to comply with capricious, unlawful or unenforceable court orders. It is not clear why that protection was removed in the redrafted rule (at a very late stage), but the consequence is now to make it critical for criminal defence lawyers to ensure that they are not fixed with court orders with which they cannot be certain to comply, whether or not the order is properly made. Guidance note 19 to rule 11.02 reinforces the position by requiring compliance with an allegedly defective order unless and until it is revoked.

Thus, if a court seeks to order a lawyer as a ‘participant’ to disclose information that belongs to the client by expressing an order against ‘the defence’ rather than ‘the defendant’, the lawyer is likely to be put in an untenable position. This is because if the client instructs the lawyer not to comply with the order, then the lawyer must obey; but if the lawyer does not comply, s/he will be in breach of conduct rule 11.02. Any lawyer faced with an order expressed to be against ‘the defence’ may have no choice but to withdraw from the case.

Confused clients

But even where a court gets this right and expresses orders against ‘the defendant’, yet another problem may surface. The conduct rules oblige lawyers to advise clients to comply with court orders. This is provided for in guidance note 19 to rule 11.02, expressed in mandatory terms, that states (inter alia), ‘you must advise your clients to comply with court orders made against them‘. Thus, where disclosure is ordered by the court, the lawyer must advise the client to comply. But the lawyer may also simultaneously advise the client that it would not be in his best interests to comply. These two sets of conflicting advice will undoubtedly leave the client utterly confused.

Anyone who might think that this problem must resolve itself in favour of the client by giving precedence to core duty 1.03 (‘You must act in the best interests of each client‘) would be wrong. Guidance note 3 to rule 1 states: ‘Where two or more Core Duties are in conflict, the factor determining precedence must be the public interest, and especially the public interest in the administration of justice.' Thus, core duty 1.01 ('You must uphold the rule of law and the proper administration of justice') is the factor determining precedence between conflicting core duties.

Sea change

The traditional role of criminal defence lawyers has hitherto been to stand between the accuser and the accused. But the modern practices of criminal courts, combined with the CrPR amendments and the conduct rules, now dictate a change to that position. It may go against the grain and it undoubtedly goes against the advocate’s natural sense of purpose, but lawyers must now protect themselves first and the client second. As courts seek to order criminal defendants to disclose ever more information against ever decreasing and inadequate levels of prosecution disclosure, an increasing level of non-cooperation may be anticipated. When this happens, courts must appreciate that it is the defendant’s non-cooperation, not the lawyer’s. Where criminal benches seek to express case progression obligations against ‘the defence', defence lawyers should seek clarification that the obligation is not being placed upon them but solely upon ‘the defendant'. Where orders are not complied with, it is not that 'the advocate refused to provide' but rather that 'the defendant declined to provide'.

As the administration of justice now seeks to impose its supremacy over what many have hitherto understood to be justice itself, criminal defence lawyers must be sure to keep themselves out of the line of fire and always remember that it is not theywho stand accused. Lawyers are supposed to assist the smooth running of the courts only insofar as is consistent with their duties to their client. But there can be no doubt that those duties are now being made subordinate to the convenience of court administration.

Denying people the right to have their best interests robustly advanced and compromising the efficacy of their lawyers is likely to bring the profession into disrepute. History also tells us that when rigorous checks and balances in the trial process are removed, injustice follows. Diluting the demands upon prosecutors to first prove their cases and sanctioning defendants for seeking the protections of legal privilege will undoubtedly result in wrongful convictions.

Many understandably observe a dangerous and duplicitous sense of self-righteousness at the heart of today’s so-called sea change in criminal proceedings.

Is this really what the proponents of these changes will want for themselves and their families if they are accused of committing a crime? And is it what we want for ourselves?

Matthew Hickling is a solicitor and freelance legal training consultant