A 2007 case before the Court of Appeal (Criminal Division) of England and Wales is instructive on counsel’s duty to soldier on.

In that case, R v Ulcay; R v Toygun [2007] EWCA Crim 2379, the trial of a number of accused persons, including Ulcay, for conspiracy to facilitate the commission of breaches of Immigration law began on September 5. After the close of the prosecution case, Ulcay completely changed his instructions. On  October 18, immediately before Ulcay’s case was due to be presented to the jury, his counsels applied to the judge to withdraw from the case on the grounds of professional embarrassment.

The judge allowed the application, stating that counsels were in “an impossible professional situation”. The case was adjourned to enable new counsels to take further instructions. On October 20 new counsels sought a four- to six-week adjournment. The judge was prepared to grant only a short adjournment of three days for counsel to read the papers and a day for an additional conference with Ulcay.

Counsels told the judge that in those circumstances they would be unable to act, having taken advice from the Bar Council (the representative body for, and approved regulator of, barristers in England and Wales).

On October 24 two new counsels appeared on Ulcay’s behalf. They asked for a seven-day adjournment to prepare the case. The judge refused but agreed to adjourn for a further three days. On October 26 counsels reapplied, seeking a two-week adjournment. The judge refused. He stated that it was not in the interests of justice for a long trial to be allowed to be derailed because one of the accused persons had changed his instructions.

The second new team of lawyers then withdrew from the case. The trial proceeded on October 28 with Ulcay unrepresented. He was convicted. He appealed against conviction submitting that the learned judge had been wrong to allow counsels to withdraw from the case; that the learned judge had been wrong not to have allowed new counsels more time to read themselves into the case; and that the learned judge should have discharged the jury from reaching a verdict in his case.

The Court of Appeal took occasion to consider whether, and if so, in what circumstances, counsels instructed immediately before the beginning or during the course of a trial could refuse to accept instructions on behalf of an accused person because of the difficulties created by adjournments. The court considered paragraph 701(b)(ii) of the Bar Code of Conduct which directed that a barrister (advocate and solicitor here in Malaysia) should not undertake any task for which he did not have time and opportunity to prepare for and perform.

Sir Igor Judge (yes, Judge is His Lordship’s name), then president of the Court of Appeal, delivered the court’s judgment. The issues that arose before the court were not lost on His Lordship. At the outset, His Lordship said:

“Some of the issues which arise in the appeal are illustrative of problems which arise unfortunately with increasing frequency and create difficulties for the trial process and disadvantage to the proper administration of justice.”

The court ruled that the original counsels had been right to withdraw and the learned judge had been equally correct not to have sought to interfere with their decision. The court could not oblige a lawyer to continue to act when he had made a professional judgment that he was obliged, for compelling reasons, to withdraw from the case.

On the withdrawal of the new counsels, His Lordship said:

“We should emphasise that we immediately recognise the practical difficulties faced by a [counsel] who is invited to take on a defence case at a very late stage, and even more so, if invited to do so halfway through a long trial, and we are not unsympathetic to them.

“In our judgment, the barrister faced with the problem which faced new counsel in the present trial was professionally required, in the words of Sir Thomas Bingham MR in relation to Antonelli’s case (in Ridehalgh v Horsefield [1994] Ch 205) ‘to soldier on and do the best she could’. That exhortation itself conveys a clear acknowledgement of something of the difficulties which inevitably arise.

“The process would normally encompass discussions with former counsel, taking stock generally, analysis of the issues likely to arise thereafter, and sensible applications to the trial judge for adjournment as and when the need arose.

“In the… conduct of criminal litigation, [counsel] is an officer of the court. He has an obligation to the court to comply with its orders, and to do his best for his client in the light of those orders. [Counsel] owes a duty to the court. [Counsel] must soldier on.

“[Counsel is] neither in breach of the rules of his profession, nor acting improperly or negligently, if the worse that can be said of him is that he was doing his best to comply with orders of the court which made impossible or difficult for him to look after the client’s interests, to the standard which, without those difficulties, he would normally be expected to achieve.

“It is not a good reason for ceasing to act for a client [because counsel] disagrees with the decision of the court, even if he believes that the order has caused insuperable difficulties for him, or his client, in the preparation and conduct of the defence.

“In our judgment the decisions of the new teams of [lawyers] were wrong. To the extent that they were acting on the advice of their professional bodies, the advice they received was wrong.”

As far as paragraph 701(b)(ii) was concerned, the court viewed it as preventing a barrister from accepting work over and above his existing commitments which he would not be able adequately to prepare and deal with in a professionally competent manner.

A barrister faced with the problem which had faced the new counsels in the trial in the above case was professionally required to do the best he could. He must soldier on.

Now, rule 6 (advocate and solicitor not to accept brief if unable to appear) of the Legal Profession (Practice and Etiquette) Rules 1978 states as follow:

(a) An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day.

(b) An advocate and solicitor shall not ordinarily withdraw from an engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client.

One can humbly submit that there is also a duty to soldier on here unless there is sufficient cause. – August 18, 2022.

* Hafiz Hassan reads The Malaysian Insight.

PS, Lord Sir Igor Judge, Lord Chief Justice of England and Wales (head of the judiciary) was in Malaysia in September 2013 for a dialogue session between the Honourable Society of the Middle Temple (UK) and the Malaysian judiciary. 

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.