Two points of conduct

In Ebanks v R (Cayman Islands) [2006] UKPC 16 (27 March 2006) the Privy Council reminded us of a couple of fundamental points:

- when a client instructs that he will not give evidence, that instruction must be in writing and signed by the client.

- counsel in cross-examining must put his client’s case, including allegations that the witness is lying, even if the client is not going to give, or call, evidence to establish that fact.

In Ebanks, the appeal against conviction for murder was brought on the grounds of failure by counsel to carry out the client’s instructions in the conduct of his defence, and that this resulted in an unfair trial.

Here again, we have the difficult topic of trial fairness, and again the Privy Council divided 3 – 2 on this issue. We saw a similar split in Howse v R (see these blogs for 10 October 2004), in a Board that was differently constituted but with some overlap in membership. In Ebanks, Lord Rodger gave the decision of the majority (Lords Carswell and Mance agreeing) upholding the conviction, and the dissenters were Lord Steyn and Sir Swinton Thomas. In Howse, the majority, upholding the convictions, were Lords Hutton and Carswell, and the dissenters were Lord Rodger and Sir Andrew Leggatt.

In Ebanks, the reason that persuaded the majority that there had not been unfairness emerged from a consideration of counsel’s conduct at trial, when he appeared to be regularly consulting with his client in a way that was consistent with a carefully conducted defence. In those circumstances, it was possible, notwithstanding the absence of a written record, to reject the suggestion that counsel had not followed the client’s instructions.

The minority in Ebanks focused on the conduct of the hearing in the Cayman Islands Court of Appeal. They held that this had involved a failure of due process, because the Court had wrongly refused to allow the appellant to supplement his affidavit with oral evidence. That Court had also been wrong in its understanding of the duty of counsel in cross-examining to put the client’s case that the police witnesses were lying. The Court had inferred that these allegations were not put because Mr Ebanks had instructed that he would not give evidence, and that his post-conviction claim that he wanted to give evidence was wrong (para 42 per Lord Steyn). This, Lord Steyn (with Sir Swinton Thomas agreeing) held, was a material irregularity, potentially prejudicing the appellant. It seems that in his affidavit filed in the Court of Appeal, Mr Ebanks had not addressed the point about what he had instructed counsel about whether he would give evidence. Lord Steyn considered that if he had been allowed to give oral evidence on that, counsel may well have agreed that he had indeed given that instruction. If that had happened, he would have been denied a fair trial. Sir Swinton Thomas agreed, emphasising the significance of the absence of a written record of the client's instructions, despite his waiver of privilege.

Process takes priority over substance. It cannot be said that guilt can be determined reliably at an unfair trial. Lord Steyn applied, mutatis mutandis, a passage from Wade and Forsyth, Administrative Law, 9th Ed (2005) at 506-508 (see para 40 of his judgment - here I have italisised the passage from the textbook):

" "Procedural objections are often raised by unmeritorious parties. Judges may then be temped to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord Wright once said:
'If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.'
The dangers were vividly expressed by Megarry J, criticising the contention that 'the result is obvious from the start':
'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'
. . . Judges are naturally inclined to use their discretion when a plea of breach of natural justice is used as the last refuge of a claimant with a bad case. But that should not be allowed to weaken the basic principle that fair procedure comes first, and that it is only after hearing both sides that the merits can be properly considered."
Although made in the administrative law context, these observations are also germane to the question whether the Court of Appeal could have declined to hear oral evidence on the ground that it would make no difference. To have decided the case on such a basis would have been unfair and contrary to due process. After all, it is entirely possible (and even likely) that Mr St. John Stevens [counsel for Mr Ebanks at trial]would have made the same core concession that Mr McGrath [Attorney for Mr Ebanks]made, viz that the Appellant insisted that he made no confession to the police."

One must, of course, make allowances for the differing circumstances of each case, but it is interesting to observe that a judge (Lord Rodger) who could uphold the trial in Ebanks as being fair, was such a strong dissenter in Howse.

The dicta in this case about counsel’s duty to put the case to witnesses in cross-examination, even where evidence is not being called to establish the points, in effect amplify Rule 10.02 of our Rules of Professional Conduct for Barristers and Solicitors.