Iqbal, R. v

A defendant who seeks to replace publicly funded criminal representatives on the ground of a breakdown in the professional relationship must provide the information required by Criminal Defence Service (General) (No 2) Regulations 2001. The residual ground of another substantial and compelling reason cannot be used to avoid that requirement.

Courts should rigorously scrutinise applications to change representation. They must prevent improper attempts to disrupt proceedings, manipulate legal aid, or obtain representation willing to advance an untenable defence. A conviction is not unsafe merely because a defendant was unrepresented where the loss of representation resulted from the defendant’s own conduct and the trial nevertheless afforded a fair opportunity to challenge the case.

The appellant was convicted of conspiracy to defraud through the operation of the Individual Learning Accounts Programme. He and other family members had registered as learning providers and received substantial payments under the scheme.

Before trial, the appellant sought to transfer his representation order from Irwin Mitchell to another firm. His Honour Judge Hammond refused the applications in September and November 2007. The appellant was subsequently tried without representation in September 2008, while his co-defendants were represented.

With leave of the trial judge, the appellant appealed against conviction. He contended that the refusal to permit a change of representation deprived him of a fair trial and rendered his conviction unsafe.

1. Appeal dismissed. The appellant’s conviction was safe. There had been no material irregularity in refusing a transfer of his representation order.

2. Under Criminal Defence Service (General) (No 2) Regulations 2001, a case based on a breakdown between the assisted person and the existing litigator had to be addressed under regulation 16(2)(a)(ii). The required details of the alleged breakdown had not been supplied. The appellant could not invoke regulation 16(2)(a)(iv), concerning another substantial compelling reason, to avoid that specific requirement. That construction preserved the structure of the regulation.

3. The trial judge therefore had no evidential basis on which to permit the change and was right to refuse it. Applications of this kind require rigorous scrutiny because they may be used to disrupt trials or misuse public funding. The court followed the warnings in R v Kirk 76 Cr App R(S) 1983, 194 and R v Ulcay [2007] EWCA Crim 2379.

4. Following the appellant’s waiver of privilege, the solicitors’ contemporaneous records disproved his allegations that he had been pressured to plead guilty, inadequately assisted, or affected by a conflict of interest. They also showed that his attempts to change representation were an improper attempt to manipulate the system. Consistently with R v Haroon Shahebzada [2006] EWCA Crim 2853, he was the author of his own lack of representation.

5. Although self-representation caused practical difficulty, the appellant had a fair opportunity to challenge prosecution witnesses and to decide whether to give evidence. No complaint about the conduct of the trial itself was pursued. The court made no order for prosecution costs.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2011] EWCA Crim 1294.

• Trial court — His Honour Judge Hammond refused the appellant’s applications to transfer his representation order. The appellant was later tried unrepresented and convicted of conspiracy to defraud.