Cadamartriea, R. v

Whether withdrawal of defence counsel makes a criminal trial unfair depends on the trial as a whole. The assessment includes the issues’ nature and complexity, the stage of the trial, the defendant’s responsibility for the withdrawal, and the defendant’s ability to participate effectively thereafter.

Where a defendant facing grave charges did not deliberately cause the loss of representation and cannot effectively address the remaining important stages, compelling justification is required for continuing without counsel. A short adjournment to permit new lawyers to assist with submissions, closing speech and directions may be required by fairness. Under Criminal Appeal Act 1968, section 2, an unfair conviction will ordinarily be unsafe.

The appellant was convicted by a jury at the Crown Court at Kingston upon Hull of murder and sentenced to life imprisonment with a minimum term of 20 years.

After the appellant had given contradictory evidence, including accounts suggesting accident, self-defence and lack of intent, his experienced defence counsel withdrew on grounds of professional embarrassment. The trial judge declined both to discharge the jury and to transfer the representation order to new lawyers. The appellant made a brief closing speech himself. The jury convicted him of murder.

On appeal, the central issue was whether the trial remained fair, and the conviction safe, after the appellant was left unrepresented for the closing stages.

1. Appeal allowed. The conviction was quashed and a retrial ordered. The statutory question under section 2 of the Criminal Appeal Act 1968 was whether the conviction was safe. A conviction resulting from an unfair trial will almost inevitably be unsafe.
2. Fairness following counsel’s withdrawal is assessed in the circumstances of the particular case. Relevant matters include the nature and complexity of the issues, the stage at which the defendant becomes unrepresented, the extent of the defendant’s responsibility for that result, and the defendant’s ability to participate effectively in what remains. The primary focus is fairness to the defendant, while the interests of witnesses and the public may also be considered.
3. The appellant faced an allegation of the utmost gravity. He had not deliberately engineered the withdrawal of his legal team, and he could not make an effective contribution to the legal directions or to a coherent closing speech. Leaving him without representation during those important stages therefore required compelling justification.
4. The judge could permissibly have concluded, after proper consideration, that the jury need not be discharged. However, the refusal to transfer the representation order was unjustified. New lawyers would not necessarily have shared the former team’s professional embarrassment. Although the contradictory evidence created forensic difficulty, new counsel could have taken instructions, addressed a possible discharge application, assisted with the legal directions and route to verdict, and presented or helped prepare a closing speech. A delay of one or two days was not too high a price for a fair trial.
5. The strength of the evidence did not justify the exceptional conclusion that an unfair trial had nevertheless produced a safe conviction. Properly assisted defence counsel might not necessarily have failed to avert a murder conviction.

The renewed application for leave to appeal against sentence required no decision.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the murder conviction and ordered a retrial: [2019] EWCA Crim 1736.
• Crown Court at Kingston upon Hull (HHJ Kelson QC): On 18 June 2018, a jury convicted the appellant of murder. He was sentenced to life imprisonment with a minimum term of 20 years.