Graeme Brooker v R

Incompetent or improper advocacy does not, by itself, make a conviction unsafe. The appellant must show identifiable errors or irregularities which rendered the trial unfair or the conviction unsafe. Ordinarily, a party who challenges an opposing witness’s evidence must put the challenge in cross-examination, so that the witness has an opportunity to respond. That duty remains where the witness is vulnerable, although the court must use appropriate special measures and ground rules to facilitate questioning. Once the court has ruled that a witness is competent and fit to be cross-examined, counsel must comply with the ruling or withdraw and return instructions. Counsel must not give personal opinions or refer in closing to matters unsupported by evidence. The conviction remained safe where the unfairness principally affected the prosecution, the adverse direction was limited, and the judge’s full summing-up fairly presented the defence.

The appellant was convicted at Lewes Crown Court of two counts of theft from his sister and sentenced to three years’ imprisonment. He was acquitted of a third count. The prosecution case was that he had used his sister’s vulnerability and control over her financial affairs to obtain unauthorised payments. The defence case was that she had knowingly and freely made the payments.

Defence counsel refused to cross-examine the complainant, despite her evidence being challenged and the trial judge ruling that she was fit to give evidence and be questioned using an intermediary and video link. Counsel also failed to comply with case-management directions, did not withdraw, and made unsupported references in closing submissions. The central issue on appeal was whether those failures rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe notwithstanding serious professional failings by defence counsel. The governing test is whether incompetence caused identifiable errors or irregularities which made the trial unfair or unsafe: R v Mark Darren Day [2003] EWCA Crim 1060, applying the single safety test identified in Thakrar [2001] EWCA Crim 1096. The exceptional nature of such cases reflects the safeguards in the adversarial trial process: R v Farooqi and others [2013] EWCA Crim 1649.
2. It is a well-established rule that the prosecution and defence case must be fairly put and that opposing witnesses should be challenged where possible. The purpose is to give the witness an opportunity to explain contradictions or alleged problems. Vulnerability calls for sensitive questioning and suitable special measures, not abandonment of the professional requirement to test disputed evidence where possible. Here, the complainant should have been challenged sensitively on the disputed payments, the documentary evidence and the appellant’s suggested motive for her complaint.
3. Witness competence, including whether a witness can understand questions and give understandable answers, is for the court to determine. Under Youth Justice and Criminal Evidence Act 1999, s 53, once the court rules that a witness is competent and fit to be cross-examined, the parties are bound by that ruling. Counsel’s options were to comply and cross-examine, or withdraw and return instructions. He could not simply disregard the ruling.
4. Counsel also had to advise the appellant clearly about the consequences of not cross-examining and should have involved the instructing solicitors. Counsel was not entitled to give the jury his personal reasons for the decision or to refer to false memory syndrome without evidence. Those matters were improper, although the remaining criticisms of the closing speech were matters of advocacy judgment and were not shown to have caused unfairness.
5. The failure to cross-examine principally deprived the prosecution witness of an opportunity to answer the defence case. The adverse-inference direction was limited and did not direct the jury that the defence had accepted the complainant’s evidence. The appellant understood the relevant debate, had continued to instruct counsel, and the judge’s full and fair directions set out the defence case and the issues for decision. The appeal against conviction was therefore dismissed. The court made wider observations about the need for strict compliance with criminal case-management directions and avoidance of wasted hearings.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed. The court held that the convictions remained safe despite serious professional failings by defence counsel.
• Lewes Crown Court: The appellant was convicted of two counts of theft on 1 December 2022 and sentenced to three years’ imprisonment on 13 January 2023. He was acquitted of a third count.