Ekaireb, R v

An appeal based on allegedly incompetent advocacy turns on the safety of the conviction, not incompetence alone. The appellant must identify errors or irregularities caused by the representation which made the trial unfair or the conviction unsafe. Applying R v Day [2003] EWCA Crim 1060, an ill-judged and unprofessional closing speech did not satisfy that test where it nevertheless addressed the defence points and did not impair trial fairness.

The conduct, strategy and timing of a closing speech are forensic matters for the advocate, who remains responsible both to the client and to the court. Personal criticism of an opposing advocate has no proper place in an address to a jury and must instead be raised with the judge.

The appellant was convicted by a jury at the Central Criminal Court of murdering his pregnant wife, whose body was never found. He received life imprisonment with a minimum term of 22 years, less time spent on curfew, and was ordered to contribute to prosecution costs.

His appeal against conviction was confined to the alleged incompetence of leading counsel, particularly the defence closing speech. He contended that its style and failure to answer the prosecution’s detailed circumstantial case made the conviction unsafe. He also sought leave to challenge the minimum term.

The central issue was whether the advocacy had caused identifiable errors or irregularities that rendered the trial unfair or the conviction unsafe.

1. Disposition. Leave to appeal against conviction was granted, but the appeal was dismissed. Leave to appeal against the minimum term was refused.
2. The safety test. The court applied R v Day [2003] EWCA Crim 1060. Incompetent representation is not itself a ground of appeal. The appellant must show identifiable trial errors or irregularities resulting from the incompetence and demonstrate that they made the trial unfair or the conviction unsafe. The formulation in R v Bolivar & Lee [2003] EWCA Crim 1167, concerning advocacy affected by counsel’s personal circumstances, was not apposite.
3. Application to the closing speech. Counsel’s speech was ill-judged, patronising and unprofessional in parts. It used inappropriate humour and personal criticism of prosecuting counsel. However, it covered the detailed points prepared for the defence and had a structure. It did not reach the level at which the fairness of the trial or safety of the conviction was called into question. Having considered all the evidence, the court found no reason to doubt the conviction’s safety.
4. Advocacy and instructions. Applying R v Farooqi [2013] EWCA Crim 1649, the court held that forensic decisions and strategy, including what a closing speech should contain and when it should finish, are the trial advocate’s responsibility. A solicitor or defendant cannot direct those matters. The judge also retains responsibility to ensure that the defence case is accurately put before the jury, including by correcting or amplifying a closing speech if necessary.
5. Sentence and guidance. The 15-year starting point was correct. The victim’s known pregnancy and the concealment of her body were serious aggravating features justifying the 22-year minimum term. Personal criticism of an opposing advocate must be raised before the judge and cannot properly form part of an address to the jury. The court directed referral of aspects of counsel’s conduct to the Bar Standards Board.

• Court of Appeal (Criminal Division)—The court granted leave against conviction but dismissed the appeal, and refused leave to appeal against sentence: [2015] EWCA Crim 1936.
• Central Criminal Court—A jury convicted the appellant of murder on 19 December 2013. On 7 January 2014, HHJ Nicholas Cooke QC imposed life imprisonment with a 22-year minimum term, less 209 days spent on curfew.