Barristers can be fearless, but they must keep to the rules

Conviction of Lawrence McNulty over his defence of Munir Farooqi helps maintain integrity of criminal justice system

How fearless can a barrister afford to be when representing a defendant at a criminal trial? That was the question I asked here exactly six months ago. The answer, we learned this week, is not as fearless as Lawrence McNulty was when he represented Munir Farooqi at a terrorist trial in the summer of 2011. A disciplinary tribunal of the inns of court has nowconvicted McNulty on four charges of professional misconduct arising from Farooqi’s trial, while acquitting the barrister of a fifth.

The five-person tribunal, chaired by a retired circuit judge, decided that McNulty should be suspended from practice for four months. However, that sentence is itself suspended pending an appeal by the barrister against the tribunal’s findings, which is unlikely to be resolved by the high court before next year.

Four months off work is not as severe as the disciplinary penalty given last week to a vet whose love of animals went further than was decent: Oliver Fraser Lown was struck off for professional misconduct. Even so, McNulty’s suspension shows how seriously the bar regards behaviour that risks prejudicing the administration of justice.

In a closely-typed 31-page ruling, the tribunal recalled that Farooqi had been convicted with two others of engaging in conduct in preparation for acts of terrorism. It was the Crown’s case that the defendant had used a market stall in Manchester to radicalise vulnerable young men and encourage them to engage in violent jihad in Afghanistan and Pakistan. The main evidence against Farooqi came from two undercover police officers, who had posed as isolated and vulnerable individuals. They recorded conversations with the defendants over the course of a year.

At the trial, McNulty argued that the undercover officers had set a trap for his client. That meant, according to the barrister, that Farooqi could rely on a defence of entrapment. But the judge, Mr Justice Henriques, ruled that no such defence existed as a matter of law. If it had existed, then McNulty would have been required by law to raise it before the trial had started rather than after two-and-a-half months of evidence and argument.

The main disciplinary charge against McNulty related to his delay in asking for the case to be thrown out on grounds of entrapment. Other charges related to what he had said in his closing speech to the jury.

Dismissing Farooqi’s appeal against conviction and sentence last summer, the then lord chief justice Lord Judge said that McNulty made a personal attack on Henriques and others that was “quite astonishing”. The judge continued:

The comparison drawn between the judge and a dishonest seller of worthless goods was intolerable. The suggestion that some of the counsel for the co-defendants whose approach to the trial was different to his own should be regarded as “sucking-up” to the judge was reprehensible …

This was not fearless advocacy, with the advocate necessarily standing firm in the interests of his client in the best traditions of the bar. Advocacy of the kind employed by Mr McNulty would rapidly destroy a system for the administration of justice which depends on a sensible, as we have emphasised, respectful working relationship between the judge and independent minded advocates responsibly fulfilling their complex professional obligations. It is difficult to avoid reflecting that this behaviour, particularly during the later stages of the trial, had as its ultimate purpose the derailment of the trial by the creation of pressure on the judge to discharge the jury before they retired to consider their verdicts or to procure favourable verdicts by illegitimate means.

These findings by the court of appeal were deliberately kept from the disciplinary tribunal. But, after a six-day hearing, the tribunal members found that McNulty had failed to give the necessary notice of his application to have the charges stayed:

We have asked ourselves whether we are satisfied so that we are sure that the lack of disclosure to the court and to the prosecution was the result of one or more deliberate tactical decisions on Mr McNulty’s part. Having observed him giving evidence for the better part of two days, and noting his apparent total command of his own faculties and the material in the case, we are sure that it was. We have also come to the conclusion that the conduct complained of was prejudicial to the administration of justice because the trial proceeded on a false basis, the prosecution were unable to deal in evidence with matters underlying the applications and the risk of an adjournment was created.

Turning to the allegation that McNulty had deliberately contravened the judge’s ruling by advancing an argument based on entrapment to the jury in his closing speech, the disciplinary tribunal found the charge proved. McNulty’s “allegations were completely unfounded and his conduct had the potential to undermine public confidence in the legal profession and the administration of justice”, it said.

The barrister was given four months’ suspension on each of these two charges, to be served concurrently. He was also given two months’ suspension, concurrently with the other sentences, for a “deliberate and misguided attempt to undermine the authority of the judge and to neutralise his summing-up” and for impugning police witnesses by making allegations that he had failed to give them an opportunity to answer.

Delivering a short but powerful speech in mitigation, William Clegg QC said McNulty had lost all sense of judgment in the case and behaved in a way that he had not done previously or subsequently. He referred to the great strain McNulty must have been under, living away from home during a lengthy trial. Adrian Darbyshire QC, representing the Bar Standards Board which regulates the profession, confirmed that there were no allegations of dishonesty against McNulty and that he was not seeking any particular sentence.

This whole case must have cost a great deal of money to prosecute and try, most of which will have to be borne by other barristers. Was it worth it? Despite his counsel’s failings, Farooqi’s trial proceeded to a verdict and his sentence of life imprisonment with a minimum of nine years was upheld.

My answer is that it was certainly worth it, for the reasons expressed by the former lord chief justice. Our criminal justice system relies on advocates who keep to the rules. Any failure to meet the high standards set by the regulators must be exposed for all to see. Nothing else will deter its repetition.