Appeals Based on Negligence

Clients are sometimes dissatisfied with the representation that they received at trial and wish to make an application to the CCRC based on claims that their legal team, whether barristers, or solicitors, or both, acted negligently in the conduct of their case. This article considers the strength of these cases.

The Strength of Applications

The starting point to be aware of is that applications and subsequent appeals based on the negligence of your previous legal team are very unlikely to succeed.  When you place your case in the hands of a barrister or a solicitor the courts will take the view that you are giving them a very wide discretion on how to conduct your case.

The courts will not simply be interested in determining whether your trial lawyers were negligent.  They will want to know that this has affected the safety of your conviction.  For example, your lawyers could have acted negligently in failing to have evidence excluded, in turning up to court late every day, and then falling asleep in court, but if you then entered a guilty plea without pressure being placed on you to do so your conviction would probably still be regarded as safe.

Indeed, in one case trial counsel has been referred to the Bar Standards Board by the Court of Appeal because of the allegedly incompetent nature of representation, yet the Court of Appeal nonetheless found that the incompetence of the barrister did not affect the safety of the conviction or the fairness of the trial.

You should discuss your case fully and frankly with your new representative before launching an appeal based on the alleged negligence of a legal representative.  In particular, in cases of appeals which are bound to fail due to having no merit whatsoever, the Court of Appeal can make “loss of time directions” meaning you spend more time in prison.  However, this should never discourage you from bringing a case where there is real evidence of negligence.

Evidence of Negligence

Sometimes you will have available to you evidence which shows that your legal team were negligent.  For example, your lawyers’ notes might be available to you in the papers from your trial.  In such circumstances they can be reviewed, and might show that the lawyers fundamentally misunderstood your case, failed to read the papers, or that they ignored your instructions.  Another example of evidence of negligence being immediately available would be where the trial record shows that available witnesses were not called, or that important prosecution witnesses were not cross-examined.

In other cases you will need to ask a lawyer to take a detailed look at the papers from the trial and the court’s records to discover whether suspicions of negligence are correct.  These cases can be extremely time consuming for the lawyers conducting the review, as they will tend to involve a need to understand ever single detail of the case to work out why your previous representatives took the tactical decisions they did.

Finally, in some cases there will be evidence in the form of written “endorsements” between the client and their trial lawyers.  At many stages of a case your lawyer will give you advice and will quite properly ask you to confirm that you have understood this advice, and to make a record of your instructions, which is then signed.  Where you have been provided with advice by your lawyer and you have followed it, even if it is not the best advice, this will usually be a strong defence to any charges that your lawyer has acted negligently.

(As an aside, every client should be aware that the best protection against negligent representation in the first place is to involve yourself in the details of how your trial is being prepared and conducted.  If you don’t understand something, challenge your representative to explain it.  Always make sure that decisions are documented in writing if you have any issues with them.  Your lawyer will be spending hours preparing your case, but always remember that no one will know it as well as you do.  Keep in mind that at the end of the trial, if everything goes wrong, it’s not your lawyer who will end up in prison.)

In an application to the CCRC your new representatives will contact your former representatives, for a number of reasons.  Firstly, they will need to ensure that the former representatives know that an application is being made involving them.  Secondly, they will want to get hold of all records held by the former representatives.  Thirdly, and most importantly, the former representatives will have a right to have their own say about how they conducted their case.  This will allow the CCRC and the Court of Appeal to have the fullest possible picture.

Conclusion

Cases where negligence can be proven against a legal representatives are the exception, and are always difficult to win.  Indeed, there are many cases where a disgruntled client will look for someone to blame, and the easiest person to see is their former representative; that alone does not mean that the former representative really is at fault.  Cases which are simply speculative should be strongly discouraged.

However, the fact that some former clients complain wrongly about their lawyers should not stop you from approaching an expert if you genuinely think that a miscarriage of justice has happened because of negligent representation. No one should suffer a loss of their liberty because of the failures of their representatives.  If this is your situation then you deserve someone who will fight as hard as possible to deliver justice and secure the overturning of your conviction.

Before relying on any matter set out in this article, make sure to consult an expert to check that it is still up to date and how it applies to your case.