We take a look at negligent advocacy in a criminal trial and consider whether you can sue your barrister for negligence.
A criminal conviction can have a major impact on a person’s life and not just when it includes a prison sentence. A conviction can follow you around for a long time and can affect such things as ability to obtain work, credit ratings etc. So it is no surprise that we receive a lot of enquiries about bringing a negligence claim against a barrister – or even a solicitor-advocate – from people convicted of a crime who feel the poor advocacy of their lawyer at the trial was the reason they were found guilty.
For a very long time, barristers had what is known as “immunity from suit”. It was a policy decision that a barrister could not be sued for negligence. One of the main reasons was that as a barrister is an Officer of the Supreme Court, their duty is owed primarily to the Court and secondly to their client. It was considered that if a client could sue their barrister, this may cause a conflict of interest and the barrister may find it difficult to be completely honest with the Court for fear of being sued.
Over time, this immunity was chipped away until the House of Lord’s case of Arthur J S Hall v Simons in 2000. A 68 page judgment gave detailed consideration as to why it was time to lift that immunity and potentially open the floodgates for claims against barrister’s whose advocacy skills were negligent.
Save the floodgates haven’t been opened.
Although in theory you can bring a claim against a barrister for negligent advocacy in a criminal trial, there are still a number of hurdles to overcome, especially where a criminal conviction has been the result.
First and foremost is the fact that challenging a criminal conviction (which includes a plea of guilty) in a civil court is, put bluntly, an abuse of process. A conviction will only have been imposed following due process of the law and bearing in mind that to prove a claim in the criminal courts, you have to prove it “beyond reasonable doubt” whereas in the civil courts it is only “on the balance of probabilities”, asking a civil court to override a criminal conviction would bring the administration of justice into disrepute. The only way a civil court will therefore entertain a claim for negligent advocacy in a criminal trial is if that conviction has either been successfully appealed or successfully referred to the Criminal Cases Review Commission.
Secondly, you then need to prove that the barrister was negligent; that s/he acted in a fashion that no reasonably competent barrister with similar qualifications or experience would have done. And this alone presents two problems.
1. There is a standard joke in litigation: put four lawyers in a room and you get five different opinions. No two lawyers will think the same or act the same. This was summed up very well by Sir Thomas Bingham MR in the case of Ridehalgh v Horsefield when he said:
“Any judge who is invited to make or contemplates making an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. But advocacy is more an art than a science. It cannot be conducted according to formulae. Individuals differ in their style and approach. It is only when, with all allowances made, an advocate’s conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make an […] order against him.”
Was it an error of judgment? Or negligence? It is a fine line.
2. Added to this is the great obstacle that anyone claiming negligent advocacy in a criminal trial will face; showing that, with a better standard of advocacy, there would have been a different outcome.
“[t]he virtual impossibility of fairly retrying at a later date the issue which was before the court on the earlier occasion. The present case exemplifies the problem. It is over 12 years since the crime was committed. Recollections (of the participants and the lawyers involved) must have faded. Witnesses have disappeared. Transcripts have been lost or destroyed. Hayes may, or may not, be available to testify. Evidence of events since the trial will be bound to intrude, as it already has. It is futile to suppose that the course of the Crown Court trial can be authentically re-created.”
In short, it isn’t easy, particularly in cases where the original conviction came out of the Magistrate’s Court. Unknown to many, the Magistrate’s Court does not record its proceedings so it is impossible to establish what was said by whom and whether the advocacy was undertaken negligently or not. Added to that, the Claimant runs the risk that the same conclusion will be reached by the latter court, albeit on alternative evidence that was provided in the original court.