Farooqi & Ors, R. v

A conviction is not unsafe merely because defence counsel has behaved improperly or conducted the case incompetently. The appellate question is whether judicial directions could sensibly correct the resulting prejudice and whether the directions in fact preserved the integrity of the trial. Derailing a trial should remain exceptional. An advocate controls forensic strategy, subject to the client’s truthful factual instructions and to the client’s personal decisions such as whether to give evidence. An advocate must not make factual assertions unsupported by evidence, ambush witnesses or opponents, or disobey court rulings. A carefully framed direction to jurors about their collective deliberative duty may be proper where counsel’s address has encouraged an inappropriate approach to verdicts.

After a lengthy joint trial at Manchester Crown Court, Farooqi, Newton and Malik were convicted of terrorism-related and solicitation-to-murder offences. They appealed against conviction principally because Farooqi’s leading counsel had persistently advanced misconceived legal arguments, disobeyed rulings, made improper assertions and attacked the judge, the prosecution and other advocates.

Farooqi and Malik also challenged their sentences. The central issue was whether the trial judge’s extensive corrective directions and summing up could remedy the effects of counsel’s conduct without unfairness to any defendant, including Newton and Malik, whose cases were linked to Farooqi’s.

1. The appeals against conviction were dismissed. The trial judge was entitled to continue the trial rather than discharge the jury. The proper inquiry was whether counsel’s misconduct and alleged incompetence could sensibly be addressed by directions, and whether the directions in fact maintained the integrity of the process. A trial should ordinarily proceed to its conclusion; derailment is exceptional.

2. The judge’s corrections were necessary, proportionate and effectively ring-fenced. He repeatedly directed that Farooqi was not responsible for his counsel’s conduct, that the corrections must not affect the other defendants, and that factual decisions remained for the jury. The later detailed review fairly left each defendant’s case and the issue of intent to the jury. The convictions and the acquittal of Farooqi’s son followed a fair trial.

3. The court gave general guidance on advocacy. A client supplies the factual account on which the defence is advanced, but the advocate is responsible for forensic strategy, subject to the defendant’s personal decisions about plea and evidence. An advocate must not give evidence through submissions, make allegations without giving a witness a fair opportunity to answer them, ambush opponents, or disregard procedural requirements and judicial rulings.

4. The challenge to Farooqi’s decision not to give evidence failed. An appellant alleging inadequate advice or an uninformed decision must provide material supporting that allegation. The available records showed that Farooqi understood that the decision was his, had discussed its consequences, and chose not to testify.

5. The judge properly gave the collective-deliberation direction derived from R v Watson [1998] QB 690. It used the approved wording, was given well before the jury retired, and was not linked to a majority direction or to any difficulty in reaching verdicts. It neither pressured the jury nor affected Malik’s verdicts.

6. The sentence applications failed. Farooqi’s life sentence and minimum term were justified by the gravity of his terrorist offending and dangerousness. Malik was a dangerous offender; although his radicalisation and lesser culpability were recognised, imprisonment for public protection with a five-year minimum term was justified. Extensions of time, insofar as needed, were refused.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and refused or dismissed the sentence applications.

• Manchester Crown Court: before Henriques J and a jury, Farooqi, Newton and Malik were convicted of the relevant offences and sentenced on 9 September 2011.