Popat v Barnes

A barrister’s tactical decision at trial does not automatically become negligent because another course might have been taken. It may be reasonable not to draw attention to a defective jury direction where doing so could focus attention on evidence harmful to the defendant. A decision made at trial does not necessarily prevent counsel from raising the issue on appeal. However, failure to raise it will constitute a breach of duty only if, in the circumstances, the omission fell below the required standard of care. The assessment must include the materiality of the point, the relevant appellate practice, and the overall safety of the conviction.

The appellant claimed damages for negligence against the barrister who represented him at his criminal trial and first appeal. He had been convicted of attempted rape, indecent assault and witness intimidation, but his convictions were later quashed and he was acquitted at retrial following a referral by the Criminal Cases Review Commission.

The High Court, Mr Justice Buckley, dismissed the claim. It held that counsel had reasonably decided not to raise the absence of the Lucas limb of the alibi direction at trial and was not negligent in omitting the point from the first appeal. The appellant sought permission to appeal, principally on the alleged failure to raise that ground of appeal.

1. Application dismissed. The Court of Appeal refused permission to appeal from the decision of Mr Justice Buckley.
2. Counsel’s decision at trial not to draw attention to the missing Lucas limb of the alibi direction was a justified tactical decision. A further direction might have recalled the jury’s attention to the alibi evidence and operated to the appellant’s disadvantage. The first-instance judge was entitled to conclude that this conduct did not amount to a breach of duty.
3. The fact that counsel had deliberately chosen not to raise the point at trial did not, as a matter of principle, prevent her from raising it on appeal. Counsel should not necessarily feel inhibited from taking an appellate point merely because it had not been taken at trial. That observation did not establish that the omission was negligent.
4. The relevant question remained whether the failure to include the point in the first grounds of appeal breached counsel’s duty of care. The Court took account of the substantial body of authority indicating that the Court of Appeal would view arguments based on deliberate trial decisions with disfavour. It also considered that the omitted direction was not critical to the later decision quashing the conviction, but was one of several matters relied upon.
5. In those circumstances, it could not sensibly be argued that counsel was negligent in failing to raise the point. The High Court was entitled to find that breach of duty had not been established, and there was no basis for interference.
6. The possible reference during the trial to counsel’s insurance limit was unfortunate, but there was nothing to suggest that it influenced the judge’s conclusions. The challenge to quantum did not require determination because permission was refused on liability.

• Court of Appeal (Civil Division) — Application for permission to appeal dismissed: [2004] EWCA Civ 820.
• High Court, Queen’s Bench Division — Mr Justice Buckley dismissed the appellant’s negligence claim on 7 April 2004.