Ulcay, R v

A defendant’s right to a fair trial and competent representation does not permit manipulation of the trial process. A judge may refuse an adjournment which would derail a multi-handed trial where the defendant has created the difficulty by changing instructions late in the proceedings.

An advocate must advance the client’s factual case, but cannot challenge evidence which the client accepts as true. Whether professional embarrassment prevents counsel from continuing is ordinarily for the lawyer, not the judge. Newly instructed representatives remain bound by the court’s case-management orders and must do their best to continue, rather than withdraw solely because the time allowed for preparation is less than they sought.

The appellant was convicted at Isleworth Crown Court of conspiracy to facilitate breaches of immigration law by non-European Union citizens. The prosecution case relied substantially on intercepted telephone calls, surveillance, financial evidence and admissions identifying him as “Eddie”, the organiser of a people-smuggling enterprise.

At the close of the prosecution case, the appellant changed his instructions and denied admissions on which his defence had previously been conducted. His trial lawyers withdrew on grounds of professional embarrassment. Successive newly instructed teams sought longer adjournments and then withdrew when the judge refused the periods sought. The appellant completed the trial unrepresented.

He appealed against conviction, alleging unfairness in permitting the original lawyers to withdraw and refusing a lengthy adjournment or a separate retrial. He and a co-defendant also renewed applications for leave to appeal against sentence.

1. The appeal against conviction was dismissed. The appellant had received competent publicly funded representation and ample opportunity to prepare his defence. His late reversal of instructions was an attempt to manipulate the process. The judge was entitled to prevent a lengthy, multi-handed trial from being derailed. The appellant therefore suffered no injustice when the trial continued without representation in circumstances he had brought about.

2. An advocate must advance the factual case which the client asserts to be true. The advocate is not a mouthpiece and may not challenge evidence accepted by the client as true merely because the client wishes it challenged. Decisions such as the plea and whether to give evidence remain for the defendant after professional advice.

3. Whether counsel can properly continue when professionally embarrassed is ordinarily a matter for counsel, subject to duties to the court and legal professional privilege. The judge may seek such explanation as can properly be given, but should not normally compel counsel to continue. The court endorsed the approach in R v G and B [2004] EWCA 1368.

4. Under Criminal Defence Service (General) (Number 2) Regulations 2001, an application to change representative remains case- and fact-specific. A transfer of public funding does not require the court to grant whatever adjournment new representatives seek. Nor should a trial judge ordinarily engage in a personal mid-trial inquiry into whether a defendant truly wishes to change his defence or dismiss lawyers, particularly where manipulation is apparent.

5. The court gave significant professional guidance. The cab-rank rule applies even when counsel is instructed late in a criminal trial. A short adjournment allowed by the judge does not itself create an exception. Counsel and solicitors must comply with binding case-management orders, seek such further time as is reasonably required, and do their best to continue. The court held that the two newly instructed teams had wrongly withdrawn.

6. The renewed applications for leave to appeal against sentence were dismissed. The commercial and persistent people-smuggling operation was substantial. The appellant was centrally involved and his twelve-year sentence was not manifestly excessive. The co-defendant’s seven-year sentence was likewise not manifestly excessive.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 2379, dismissed the appeal against conviction and dismissed the renewed applications for leave to appeal against sentence.

• Isleworth Crown Court: On 23 November 2005, convicted Ulcay of conspiracy to facilitate breaches of immigration law and sentenced him to 12 years’ imprisonment.