|Judgments - Arthur J.S Hall and Co. v. Simons (A.P.) |
Barratt v. Ansell and Others (Trading As Woolf Seddon (A Firm))
Harris v. Scholfield Roberts and Hill (Conjoined Appeals) On 20 July 2000
The appellate procedure follows the same logic. The only question on an appeal against conviction is whether the conviction was unsafe. If it was, then the appeal must be allowed: in all other cases the appeal must be dismissed: the Criminal Appeal Act 1968 section 2 (as amended). A whole variety of factors may affect the safety of a conviction - error of law, the admission of evidence which ought to have been excluded, some unfairness in the trial or the summing-up, relevant evidence not adduced at the trial. The powers of the Court of Appeal to admit fresh evidence or extend the time for appeal are wide; they are not constrained by the consideration of the interests of any other person. They are to be exercised whenever it would serve the interests of justice. Pleas, admissions and concessions can where it is just to do so be withdrawn.
The Court of Appeal will also listen to criticisms of the conduct of the defence and give effect to them when they have merit. It is hard to visualise a case where the criticism would (in the absence of immunity) be sufficiently substantial to justify a claim against the advocate but not give a ground of appeal which the Court of Appeal would have to evaluate. Similarly, when, at a later time, new factors arise which justify the reconsideration of the safety of the conviction, the case can be referred back to the Court of Appeal under the Criminal Appeal Act 1995, s. 9. The duty of the advocates appearing before the Court of Appeal are the same as at the trial, the achievement of a just outcome. Their role is adversarial but their duty is not partisan.
The prosecuting advocate is not in practice subjected to any consideration of personal liability for his conduct of the case. (Indeed, a general non-liability in negligence of the Crown Prosecution Service has been upheld by the Court of Appeal on policy grounds: Elguzouli-Daf v. Commissioner of Police of the Metropolis  QB 335.) If he has to revisit what occurred at the trial, it will be solely to provide further assistance to an appellate court or other similarly placed body. The defending advocate will normally conduct any appeal from a conviction (or sentence). He will do so in the same interest as before, the interests of justice. If some question arises about his conduct of the trial, this will probably make it inappropriate that he represent, or continue to represent, the defendant on the appeal. But he will remain under a duty to assist the Court of Appeal. Normally the defendant will waive his privilege and a full and frank written account of what occurred and the reasons for it will be given by the advocate to the Court of Appeal. It will readily be appreciated that to introduce into this scheme of criminal justice a principle that the defendant should be free to sue his advocate for damages in negligence will significantly alter the relationships involved and make more, not less, difficult the achievement of justice within the criminal justice system which is its purpose and is also the public interest.
My Lords, I make no apology for emphasising the position on criminal appeals: the reason why the question of immunity arises is because of the argument that a defendant who has been the victim of a miscarriage of justice should have a remedy. On any view the primary remedy must be the criminal appeal. Therefore the primary inquiry must be how the abrogation of the immunity would affect the effectiveness of the Court of Appeal in rectifying such miscarriages. If its existence facilitates such rectification, that is a very strong argument indeed in justification of the immunity. (Contrast the position in the civil justice system where the position is the reverse.) To displace this justification needs some significant counter-argument. However, the evaluation of the other available arguments support rather than undermine the justification for the immunity.
The legitimate interest of the citizen charged with a criminal offence is that he should have a fair trial and only be convicted if his guilt has been proved. It is not an economic interest. His interest like his potential liability under the criminal law stems from his membership of the society to which he belongs - his citizenship. If the charge against him has not been proved, he should be acquitted. If he has been wrongly convicted, his appeal against conviction should be allowed. If he has been wrongly or excessively sentenced, his punishment should be remitted or reduced. His only remedy lies within the criminal justice system. This is appropriate. The civil courts do not have any part to play in such matters. The relevance of what the advocate does during the criminal trial is to the issues at that trial, not the remoter economic consequences of the outcome of that trial.
Any involvement of the citizen in the criminal justice system may have adverse consequences. There are adverse consequences for witnesses which they in the public interest have to accept. There are certainly adverse consequences for those suspected of or charged with criminal offences. They may be held in custody. They normally have to attend their trial. They may be arrested and subjected to interviews or searches or tests which would otherwise be an infringement of their civil liberties. They may be acquitted after a long and traumatic trial. They may be convicted but have their conviction overturned on appeal. Thus they will to a greater or lesser extent suffer disadvantage and loss including loss of liberty and reputation.
Provided that the relevant persons have acted in good faith, the citizen has to accept this as part of the price he pays for living in the community and enjoying the protection of the criminal law. A defendant who is detained in custody but acquitted at his trial receives no compensation for his loss of liberty or for having had serious allegations made against him. The same applies if he is convicted and sentenced at his trial but has his conviction quashed on appeal. He too receives no compensation. Those who have paid for their own defence have no assurance that they will necessarily be awarded costs.
An unsafe or wrong conviction may have occurred for any of a number of reasons. Someone may be to blame or there may have been no fault on anybody's part. It may arise from something that happened at the trial, eg erroneous expert evidence, or outside court, eg undiscovered evidence. There may have been some defect in the conduct of the trial like the failure of the judge or counsel to anticipate a restatement of the law by an appellate court. There is no need to proliferate examples; the diverse and various possibilities will be well within the experience of any one actively engaged in the criminal justice system. It will also be readily appreciated that some of these factors may be apparent at the conclusion of the trial; others may only come to light much later.
The payment of monetary compensation is something upon which Parliament has spoken. The statutory policy is set out in s. 133 of the Criminal Justice Act 1988 (as amended) . This provides, under the heading "Compensation for miscarriages of justice":
"(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
(2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.
(3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.
(4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.
(4A) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to
The statute distinguishes between those factors which come to light in time to be considered on a normal first appeal to the Court of Appeal (no compensation) and those which only come to light later (potential compensation). Similarly it distinguishes between new (or newly discovered) facts and errors of law or other non-factual matters. There is a statutory policy, reflected also in the way in which the Home Secretary exercises his discretion, which strikes a balance between those encounters with the criminal justice system which the state should compensate and those which it should not. The discretionary element is similar to that contained in the criminal injuries compensation scheme. Those who have encounters with criminal activity are not all equally meritorious. The policy of the Legislature (and Executive) is not to provide indiscriminate compensation for erroneous convictions. To do so would be unacceptable in a liberal democratic society. My Lords, we should respect that assessment of the public interest and the needs of our society.
To provide a tort based liability to pay compensation in respect of the role of only one of the participants in the criminal justice system would not only destroy this balance but also produce a capricious distribution of compensation between ultimately acquitted defendants. If a defendant could say that a (I stress, a) cause of his conviction was the fault of his advocate, he would recover full civil damages; if it was the fault of anyone else involved in the trial, he could not recover anything unless he came within the scope of s. 133. From the defendant's point of view, it would be an arbitrary lottery and produce anomalies between one defendant and another. As a matter of statutory policy, it would provide a route by which the statutory limitations and safeguards built into s. 133 could be avoided. From the point of view of the administration of justice it would expose the professional advocate to a risk of litigation which would handicap him in performing his duty under the criminal justice system and disinterestedly assisting, particularly at the appellate level, in the correction of errors and remedying miscarriages of justice. To argue for a higher need for a supposed redistributive justice to enable the defendant to recover civil damages from his advocate, begs the question where the greater justice lies in relation to criminal litigation as well as the question whether such a need is indeed higher than the need to facilitate as far as possible the rectification of miscarriages of justice within the criminal justice system.Conclusion:
In summary, there are essential differences between the civil and criminal justice systems. In the civil justice system, the nature of the advocate's role in the whole process, the nature of the subject matter, the legitimate interest of the client, the appropriateness of the tort remedy and the absence of clear or sufficient justification all militate against the recognition of an advocate immunity. It is not necessary: in certain respects it is counterproductive.
In the criminal justice system, the position is the reverse of this. The advocate's role, the purpose of the criminal process, the legitimate interest of the client, the inappropriateness of the tort remedy, the fact that it would handicap the achievement of justice, the fact that it would create anomalies and conflict with the statutory policy for the payment of compensation for miscarriages of justice, all demonstrate the justification for the immunity in the public interest and, indeed, the interests of defendants as a class.
To put it at its lowest, strong arguments exist for making a distinction between the civil and criminal justice systems and the respective need for advocate immunity within them. Because these appeals did not raise this question it was not specifically examined either orally or in written submissions before your Lordships or before any lower court. In my judgment there would be significant consequences of what would be a radically new approach to the administration of criminal justice and (without prejudging the outcome) these potential consequences call for a focused evaluation with the assistance of judgments of lower courts.
One of the consequences of the limited issues raised by these appeals has been that your Lordships have not heard argument upon the definition of what would be the scope of some limited immunity applying to criminal advocacy only. The questions of definition are certainly not of the same order as the problems which would exist for the civil advocacy immunity. It is clear that the same difficulties of delimitation do not exist in the criminal justice system as in the civil justice system. The distinction between civil and criminal proceedings is already well established and used but a view would have to be taken about judicial review proceedings relating to the criminal courts. As regards what comes under the heading of advocacy, there is a clear point of focus being the trial at which the guilt of the defendant is sought to be established. There are existing authorities (eg Somasundaram v. M. Julius Melchior & Co.  1 WLR 1394 and Acton v. Graham Pearce & Co.  3 AER 909) which consider the scope of the immunity in the criminal justice system. Unlike in the civil system, the questions of delimitation are not such as to provide a reason for rejecting the immunity in the criminal system. But it is right that any necessary refinement and redefinition, whether by your Lordships or the Court of Appeal, should only result from a properly informed and considered argument directed to those points. The hearing of the present appeals has not been such an occasion.The Hunter 'Solution':
Finally, I should refer to the suggestion that the Hunter principle (sic) provides an adequate answer to any problem arising from the absence of an immunity in relation to criminal advocacy and therefore renders the immunity unnecessary and disproportionate. As I have explained already the Hunter argument does not address the relevant question or relate to the justification for the immunity in the criminal justice system. It is simply irrelevant and fails to understand the justification for the immunity. The immunity exists and should be maintained because it serves the public interest by making a significant contribution to the working of the criminal justice system and not because it provides protection to lawyers.
The suggestion has been developed into the formulation of a rule that would be a novel rule of public policy: that no civil action in negligence for breach of professional duty can be brought against an advocate in respect of the conviction of his client unless the conviction had first been set aside by an appellate court. That this would be a novel rule cannot be disputed. It would create an anomalous judge-made bar to a negligence action which does not at present exist. The relevant concepts for the law of negligence are causation foreseeability and mitigation. It would need to be assimilated with the statutory law governing the limitation of actions in a way that it is probable that only Parliament should carry out (with or without the assistance of the Law Commission).
Hunter was a wholly exceptional case which had nothing to do with advocate liability. In Hunter there was an abuse of the civil process by using it for the improper purpose of mounting a collateral attack on an adverse criminal decision. But a client suing his lawyer would argue that it was proper for him use the civil process for the purpose of recovering compensation from his lawyer for breach of duty; indeed that is the only way in which he could enforce the civil obligation to pay such compensation under the law of tort. Provided that the action was not wholly without merit and was bona fide brought for the stated purpose and there was no immunity upon which the lawyer was entitled to rely, the lawyer would have difficulty in sustaining an argument that the action was an abuse of process. To challenge in later litigation an earlier non-binding decision between different parties is not in itself abusive, provided there are grounds for doing so. So far as questions of law are concerned, the doctrine of precedent contemplates this. So far as questions of fact are concerned, each court has to try and decide questions of fact upon the evidence adduced before it. Judicial comity and common sense take care of most of these situations in practice but the law does tolerate the possibility of apparently inconsistent decisions. The element of vexation is an aspect of abuse, the use of litigation for an improper purpose, trying to have repeated bites at the same cherry. The objectionable element is not the risk of inconsistency.
The suggested new rule would give a status in the civil law to a criminal conviction which at present it does not have. Under the rule in Hollington v. F. Hewthorn & Co. Ltd.  KB 587, the decision of a criminal court was not evidence of the truth of the facts upon which it was based. This principle applied to any decision of another court or tribunal which did not come within the principles of res judicata as between the parties to the later action. Parliament modified this rule in relation to criminal convictions but it has not gone to the length proposed by the suggested new rule. Under section 11 of the Civil Evidence Act 1968 the person concerned is only to "be taken to have committed that offence [of which he was convicted] unless the contrary is proved". In other words, the conviction is not conclusive: cf section 13 relating to defamation actions. The relevant person (or anyone else with an interest in doing so) is at liberty to prove that he did not commit the crime of which he was convicted. The suggested new rule would have, either expressly or by implication, to contradict this provision. If the existing law is to be changed in this way, it would again be a matter for Parliament and the Law Commission.
The Hunter 'solution' is not a solution and provides no argument for not continuing to recognise the existing advocate immunity in the criminal justice system.
Accordingly, my Lords, I would dismiss the appeals. The claims disclose causes of action against the appellants. The appellants are not entitled to an immunity in respect of the claims made against them in these actions.
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Steyn and Lord Hoffmann, with which I am in full agreement.
I understand that all your Lordships would abolish the advocate's immunity in civil proceedings, but that some of you would retain it in criminal cases. I readily acknowledge that the case for abolition is stronger in civil litigation, and given my lack of experience of the criminal justice system I have given anxious consideration to the views of those of your Lordships who would retain the immunity in criminal proceedings. I have, however, come to the conclusion that such a partial retention of the immunity should not be supported.
My reasons for this conclusion are twofold. In the first place, I think that to make the existence of the immunity depend on whether the proceedings in question are civil or criminal would be to draw the line in the wrong place. There is a wide variety of cases tried before the magistrates which are for all practical purposes civil in character, and in which the retention of the immunity would be anomalous, but which are commenced by information or summons and which are classified as criminal proceedings. Conversely disciplinary proceedings before professional bodies are classified as civil proceedings but are criminal or quasi-criminal in character. Here the abolition of the immunity would be anomalous but its retention difficult to justify.
In the second place, even if the immunity were retained only in criminal cases tried on indictment, in which the liberty of the subject is at stake (and which is probably the kind of case your Lordships primarily have in mind), it is difficult to believe that the distinction would commend itself to the public. It would mean that a party would have a remedy if the incompetence of his counsel deprived him of compensation for (say) breach of contract or unfair dismissal, but not if it led to his imprisonment for a crime he did not commit and the consequent and uncompensated loss of his job. I think that the public would at best regard such a result as incomprehensible and at worst greet it with derision. The more thoughtful members of the public might well consider that we had got it the wrong way round.
These considerations persuade me that we ought not to retain the immunity in criminal proceedings in the absence of compelling reasons to do so. I acknowledge that there is a particularly high public interest in the efficient administration of criminal justice, that the need to ensure that the accused has a fair trial makes it difficult for the judge to intervene, and that both judge and defence counsel are likely to err on the side of caution. But that is the position today, despite the existence of the immunity. I have some scepticism in accepting the proposition that its removal will make matters significantly worse, and I observe that two of your Lordships with experience of criminal trials do not think that it will.
In my opinion the defending advocate in a criminal trial will retain formidable safeguards against vexatious attack even if he no longer enjoys a formal immunity from suit. His former client will not be allowed to challenge the correctness of the conviction unless and until it is set aside, and a claim which does not challenge the correctness of the conviction, like that in Rondel v. Worsley  1 A.C. 191 itself, should normally be struck out as an abuse of the process of the court. The withdrawal of legal aid combined with the new powers of the court to strike out hopeless claims even though they plead a good cause of action should make the great majority of unmeritorious claims still-born. But if the immunity from suit is retained for the moment in criminal cases alone, then sooner or later a case is bound to arise in which the House will be called on to reconsider the question. It will be a bad case involving a clear miscarriage of justice, for otherwise the immunity will not be engaged. It will be a case in which the accused was plainly innocent but was wrongly convicted and served a term of imprisonment as a result of the gross incompetence of his counsel. The conviction will have been quashed on appeal, perhaps accompanied by severe criticism from the court of the conduct of the counsel who was responsible. And by the time the civil claim reaches the House, the public will have become accustomed to read of cases where advocates have been successfully sued for incompetence in the course of civil proceedings even though far less than their client's liberty was at stake. Moreover, the Human Rights Act 1998 will be in force, and the House will have to reconsider the question in terms of article 6 of the European Convention of Human Rights.
I would grasp the nettle now. I believe that the general public would find the proposed distinction indefensible. In the absence of compelling reasons to support it based on more than instinct or intuition, of which I can find none, I find it hard to disagree. I also think that it is difficult to defend a blanket professional immunity in terms of the European Convention on Human Rights. I would dismiss these appeals and declare that the advocate has no immunity from suit in relation to his conduct of proceedings whether civil or criminal.
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