Daniels, R. v

Defence advocates must advance their client’s factual case, but they are not a mouthpiece for instructions about forensic conduct. A mid-trial withdrawal for professional embarrassment requires a substantial reason. A genuinely material change of instructions may justify withdrawal, particularly where it repudiates a significant part of the case previously advanced. By contrast, an accused’s acceptance of a significant part of the prosecution case will rarely cause professional embarrassment.

An unnecessary withdrawal does not make a conviction unsafe unless it caused substantive unfairness. The court must assess whether replacement representation was available, adequate time for preparation was given, the issues were properly explored, and the jury could fairly determine the case.

Daniels, R. v appealed against his murder conviction and life sentence, imposed in the Crown Court at Manchester by Leggatt J. During the trial, his original solicitors and counsel withdrew after the defence firearms expert abandoned a ricochet theory and leading counsel considered that the appellant had materially changed his instructions.

The appellant subsequently declined the services of replacement counsel and represented himself. He alleged incompetence and improper withdrawal by his original lawyers, inadequate adjournment and other errors by the judge, and unfairness by prosecuting counsel. The principal issue was whether the unnecessary mid-trial withdrawal of the original legal team, and the subsequent conduct of the trial, rendered the conviction unsafe.

1. Extension and appeal. The court granted an extension of time and leave to appeal on Ground 1, but dismissed the appeal. The conviction was safe.

2. The appellant’s account of the shooting had changed materially over time. The court rejected his allegation that his lawyers had fabricated changed instructions in order to procure a retrial. His original lawyers had prepared and advanced the defence in accordance with the instructions then given, including by investigating the possible ricochet explanation.

3. Applying the explanation in R v Ulcay [2007] EWCA Crim 2379, an advocate must advance the client’s factual case but retains responsibility for how it is conducted. The loss of a possible forensic contention during trial did not ordinarily justify discharging the jury.

4. The court nevertheless had grave doubts that withdrawal was justified. The appellant’s acceptance that the fatal shot may have been fired while the gun was in his hand took him closer to the prosecution case; it did not amount to the kind of wholesale repudiation of the earlier defence that could create professional embarrassment. The decision was rushed, and a full contemporaneous record of the alleged new instructions should have been made.

5. That regrettable error caused no substantive unfairness. Experienced replacement lawyers were available and had adequate time for the limited remaining stages. The appellant chose self-representation, identified the central points, and the judge’s summing-up fairly addressed the evidence and issues. The remaining complaints did not undermine the safety of the verdict.

• Court of Appeal (Criminal Division): appeal dismissed; extension of time and leave to appeal granted on Ground 1 only: [2021] EWCA Crim 44.

• Crown Court at Manchester: Leggatt J; the appellant was convicted of murder on 6 June 2017 and sentenced on 7 June 2017 to life imprisonment with a minimum term of 30 years.