Omerta

Omerta is the code of silence that supposedly binds members of criminal gangs in Italy.  Lawyers take the same vow of silence.  What a client tells you must not be revealed, unless ordered by a court.  The idea is of course that it encourages clients to tell their lawyers the whole truth so they can provide properly informed advice (and don’t get dropped in the clarts when it all comes out six months later…) 

Lawmice were interested therefore to see an item on Legal Futures this week where a solicitor talks about his momentous decision to breach this duty.  Stephen Chittenden is putting his Archbold back on the shelf for the last time after forty years as a criminal defence lawyer, and has unburdened himself of his terrible deed.   We thought it might be interesting to see how the courts had dealt with this ghastly affair. 

In 1978, Mr Chittenden represented a teenager, Fitzroy Brookes.   Fitzroy was accused of murdering his friend and neighbour, sixteen year old Lynn Siddons.  The boy was acquitted. During the course of the trial, the real culprit appeared to be the boy’s stepfather, Michael Brookes. 

Exactly what was going on with the CPS and CID in the 1980s Midlands is difficult to comprehend.  It wasn’t as though Michael Brookes was – in the manner of “Nordic-Noir” – a man of power and influence.  He was a minicab driver.  Nonetheless the prosecuting authorities made a fine Horlicks of it all.  The police even managed to lose a rather relevant pair of blood-stained trousers and a knife.  These had been handed in by the incoming tenant of Michael Brookes’ former council home.   

Unable to get justice for her granddaughter any other way, Lynn’s Nan, Flo, was not prepared to let the matter lie.  As Lynn’s executrix, she brought a civil action against the ensanguined Michael for damages for battery of her daughter.  Tort students may remember the case as Halford v Brookes (no 3).  Civil actions for criminal acts are more common now, but in the 1990s, this was radical stuff.    

Flo’s London solicitors asked Mr Chittenden for his old files from Fitzroy’s trial.   Now, at this stage, as Rougier J makes clear in his judgment, the solicitors were only contemplating an action against Michael.  As it turned out Flo later decided to amend her claim to embrace young Fiztroy just to be on the safe side.  Mr Chittenden did not, at the time of the original request, know that the civil action would eventually be brought against both Michael and his own client.    

Mr Chittenden describes his moral dilemma: 

“I had a murderer out there, wandering free, an inept police force and a distraught family. What do you do about that?   

“I had to do something about it. There’s a dead girl and you have the information to enable a prosecution to be brought. Only your conscience at that point can answer as to what you should do. 

“My mind said to me, ‘You have to do this’, but I was risking being struck off as a lawyer if it ever came out that I had handed over my documents to the prosecution. 

“I spoke to my wife and told her about the predicament and she backed me. We had a young family, three boys, I was risking all that.  But I was torn between professional duty and common sense.  I couldn’t not do it.” 

 Flo won damages for the battery of her granddaughter.  Rougier J gave a powerful judgment in which he found stepdad Michael guilty of Lynn’s murder.  Even the CPS could not ignore this, and in due course Michael was convicted and remains in prison.   

The files that Mr Chittenden sent to Flo’s solicitors came up for judicial consideration in both Halford v Brookes (no 2) before the Appeal Court, and Halford v Brookes (no 3).  Flo was not allowed to rely on the material contained in them.   Rougier J held that there was nothing in them that could not be sourced from the transcript of the 1978 trial. He ordered that the files be returned to their legal owner.   Ultimately therefore Mr Chittenden’s actions had little bearing on the outcome of the trial.  Incidentally, as the client, the legal owner is in fact, young Fitzroy so he ended up with the files.   

But that was not the end of the story.  In Derby Magistrates ex parte B, the stepfather attempted to get hold of the same files to use in his defence. The Lord Chief Justice, Lord Taylor of Gosforth was unequivocal about lawyer – client privilege being sacrosanct: 

“But it is not for the sake of the applicant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. For this reason I am of the opinion that no exception should be allowed to the absolute nature of legal professional privilege, once established.” 

Given recent  stories of the authorities bugging client lawyer conferences in prison, this judgment has considerable relevance.   

Mr Chittenden, despite both the High Court and the Court of Appeal taking a neutral view of his conduct, clearly had his dereliction of duty on his conscience.  The interview on Legal Futures now moves from Nordic Noir to Magical Realism.  Mr Chittenden goes on: 

“A couple of years ago, I ran into a former judge while I was on a ferry to Spain. We ended up talking about the Lynn Siddons case and I told him what I had done, releasing the papers.   

“I said to him, ‘Should I have done it?’ and he replied ‘Yes’, so I feel completely absolved.  “It has taken more than 30 years but I feel I have finally got it off my chest. It feels cathartic.” 

I wonder who the judge was.  Probably it wasn’t Sir Richard Rougier himself who died in 2007. I found the interchange oddly moving though.  The informal absolution of a sin from a priest against whose code Mr Chittenden had transgressed.   

A sour note from the SRA saying it is considering its position in relation to Mr Chittenden ends  Legal Futures’ account.  They should get back in their box.  If they cared that much, then they, or their predecessors should have acted back in 1993.  Although given the attitude of the judges involved, that would have been rather presumptuous.   

Lawmice are pleased to wish Mr Chittenden a long and honourable retirement.   

 

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Better Call Saul

Just before Christmas, the Court of Appeal dismissed Mr Robert Ekaireb’s appeal against conviction for the murder of his pregnant wife. The appeal was founded on the alleged incompetence of Mr Ekaireb’s brief – Michael Wolkind QC.

Unsurprisingly, the appeal failed. The Lord Chief Justice, Lord Thomas, found that Mr Wolkind should go to bed earlier, concentrate harder, and not play on his blackberry whilst the court was sitting, but that this did not make the conviction unsafe.

What intrigued us, was this paragraph:

Our attention was drawn to Mr Wolkind’s personal website. We were surprised at its content and tone. However, whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration.

To put this in context. Lawyers were not allowed to advertise at all.  Publicity was considered inimical to the dignity of the calling.  One merely waited for the footfall on the threshold, or the brief with the pink ribbon to be delivered.

Firms of solicitors are now more comfortable with advertising than barristers’ chambers. City solicitors now employ legions of marketing minions. Barristers, however, have a less developed structure and the vulgar business of self-promotion is left to the individual practitioner or the clerks.  Some barristers have embraced the challenge with more gusto.

Barristers with their own personal websites was a new one on us. But why not?  Since 2004, barristers can be approached by members of the public directly.  They do not have to be chaperoned by costly solicitor intermediaries.

Joanna Public has not felt entirely comfortable with going to talk to their Holinesses direct. Other professions, for example accountants and surveyors don’t shy away from chatting with counsel.  After all, that means that clients’ fees can be cut two ways instead of three.

So let’s say you’re in the unfortunate position of Mr Ekaireb, what do you do? After you’ve been arrested, the duty solicitor comes and prises you out of the nick.  The duty solicitor scheme is run by local firms, who use it as a way of picking up work.  Each firm will have its own stable of counsel whom they instruct and you’ll get one of those.

Mr Ekaireb’s solicitor had already chosen junior and leading counsel for him. However, Mr Ekaireb, doing a spot of internet browsing to while away his curfew came upon Mr Wolkind’s website: http://www.topcriminalqc.co.uk/.  So impressed was he with Mr Wolkind’s claims, that he hired him on the spot.

We were intrigued by this new genre of legal self-aggrandisement. Was it widespread?   We set ourselves a little challenge.

Over the Christmas period, getting rather vexed by your Significant Other, you hit them over the head with the empty bottle of Prosecco. Perhaps more than once.  What crime has been committed?  (as criminal law questions have it), but more pertinently – what star internet QC are you going to call?  Was there a goodly choice out there?We typed  “criminal qc” into google and found only these:

http://www.topcriminalqc.co.uk/

http://www.bestcrimebarrister.co.uk/

http://www.bestcriminaldefencebarrister.co.uk/

http://www.criminalqc.com/

http://jeremydeinqc.com/

I’m loving the rank immodesty of some of the website names. Let’s be charitable, though and assume these are merely to attract the fickle attentions of the search engine.

Such charity might be misplaced, when you click upon Mr Wolkind’s link. He is no shrinking violet.  Next to a picture of himself if the strapline “UK’s top Barrister”.  It gets worse…

  “There are great legal minds, even greater legal minds, and then there is Michael Wolkind QC, a man who has no fear when holding your future in his hands”

says the first testimonial on the home page, and then a bit further down this little gem:

 “Michael’s first ever case as Leading Counsel defending in a murder was a front-page dismemberment at the Old Bailey, back in 1985. Nicholas Boyce had killed his wife, Christabel, and chopped and cooked her remains before disposing of her head in the River Thames at Hungerford Bridge. He was acquitted of murder after a jury retirement of less than an hour”.

Poor Christabel.

Then again you can click on video footage of Mr Wolkind on Sky News doing an impressive Barber of Seville type rap on the law of self-defence.  The front page ends with a personal invitation to you:

 If you are facing trial, or if you wish to appeal a conviction or appeal a sentence, and would like to discuss the case with the UK’s top Criminal Barrister and QC, please feel free to contact me for a preliminary conversation.

 Disappointingly, the click through sends an email to Mr Wolkind’s clerks, rather than a chinwag with the real McCoy. For Mr Wolkind has not turned his back on the traditional, chambers system.  He is one of many other silks at 25 Bedford Row.  Reassuringly, however, they are the best Criminal Defence set ever.  We know this because they tell us.  Plus they’ve won awards for it.

Wolkind’s site is very visceral and populist. I wanted to believe in his greatness, but after seeing his performance on Sky News, I wondered whether the patter mightn’t get on the jury’s nerves. Not to mention the judge’s.  Lord Thomas clearly wasn’t impressed. That being said, I’m not in the position of our putative champagne slaughterer.  Perhaps the hagiographic tone appeals to the desperate.

How about www.bestcriminaldefencebarrister.co.uk/? This got us to:

Howard Godfrey QC – one of the UK’s – Best Criminal Barristers

A “serious face” masthead shot.  We liked the more modest approach. Not the best, but primus inter pares. We liked he’d been at it for forty years.  Probably had learnt a trick or two.  His “about” page, mitigates the home page’s serious face.  Here Howard is shown looking slightly more relaxed, without compromising the gravitas.  He sports a pretty pink sweater and is an all-round good egg. He lives in Berkshire with his wife and dog, so that’s a plus point.  He goes on:

 When not working he relaxes by playing with his grandchildren, messing about in a boat on the River Thames, and eating and drinking well. Howard also loves travel, and is a keen photographer. As a former cricketer, he is a big cricket fan, and is a member of the MCC.  Other passions include theatre, film, and art.

Would he be too posh though? Or too old to appeal to a young jury? What if he drowned during my trial, or drank rather too well the day before the Defence’s closing speech? At least he wouldn’t be fiddling with his blackberry during cross examination.  He didn’t look like a blackberry man.

I clicked on one of his videos, of which there are four. I found his inability to look at me whilst he spoke rather alienating.  “Look at me!”  I wanted to say.  “I’m the one who needs your magic”.

Still, he felt right, and sounded right. When he spoke of the importance of maintaining the Defendant’s dignity during the criminal justice process, I saw his point.  I’d probably be feeling a bit short on that myself  if I’d just hit Them Inside with a bottle of bubbly.

Not that Mr Godfrey seemed keen on simple domestics. Indeed he gave us a lengthy exegesis on gang trials and cut throat defences.  Would he get bored if there were only two parties and one of them the silent witness? Would it be his eager junior doing the donkey work, with Mr Godfrey there to lend his hauteur?

Mr Godfrey practices out of 2 Bedford Row.  Another 2 Bedford Row inmate is http://www.bestcriminaldefencebarrister.co.uk/I liked Quentin Hunt’s modesty.  No masthead shot for him, instead panoramic views of the City of London with the Old Bailey tucked in.   A white collar crime man, the site said.  Trust me for your complex VAT fraud, confide your devilish Ponzi scheme into my willing hands.

The video though is disappointing. It’s shot at tricksy angles and starts with huge mouthfuls of platitudes.  Quentin warms up hugely when he talks about paperwork and detail.  He seems like a nice bloke, too. A good thing when it’s you and him for months and months and months in an interminable white collar crime trial.  Not an emotive jury man then, but good with judges I should think.  Perhaps not the brief for the Santa slayer then, but one to remember when HMRC come knocking.

Next up was http://www.criminalqc.com/. Click, and the face of Sir Ivan Lawrence QC appears.  He who was MP for somewhere up North, for twenty years.  No offence to Sir Ivan, but it’s a terrible website! Did the clerks make you do it?  Or did you get the web name for Christmas and didn’t like to be rude by leaving it hanging vacant in the ether?  Nice and smiley and good library, Sir Ivan, but not for me.

At least you know who’re you are getting with Jeremy Dein QC. He is joint head of Chambers at Wolkind’s set and is not afraid to say so.  One minor quibble: I would question the judgment of having quite so many pictures of Jeremy.  If ever there was one, his is a head born to wear a wig.  However he does look quite the ticket in one.

His video is the best, undoubtedly. He speaks plainly and directly to camera and I loved the embarrassed little smile at the beginning of his spiel, clearly aimed at the person behind the camera.  “Do I have to do this?” the smile is saying.

I thought he might be the ideal counsel for our mince pie murderer.  He seems trustworthy above all. Solid.  Not too posh, not too glib.  In addition he writes stuff, speaks at conferences, sits as a Recorder at the Bailey.  Good on his feet, fixing the jury with his reassuring headmasterly air. A a safe pair of hands, a team player  –  a chambers man, not a lone gun out on a limb. Good Westlaw profile too.

So who you gonna call? Well on the basis of these brief researches, Mr Dein, is the one for me, sir. But it would rather depend on whether I trusted my solicitor more than myself to choose my brief.  What other talents could there be out there, too shy to come and talk to me in my drawing room?

And whether, of course, Mr Dein would want to take on the miseltoe mangler, and whether I could afford him.