Finding a Balance—Solicitors’ Duties to their Clients and the Courts
| Author | Philip Plowden |
| DOI | http://doi.org/10.1177/002201839906300626 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Article |
TheJournal of
Criminal
Law
Finding
a
Balance-Solicitors'
Duties to
their
Clients
and
the Courts
R v
McFarlane
(Sidney
Lee)
(unreported. 23 February 1999)
McFarlane was arrested on suspicion of having been involved in
the
murder
of Leslie Cook in a stabbing incident in a public house.
McFarlane was convicted at trial
and
some time later launched an appeal
based on the 'flagrant incompetence' of his solicitor, Mr Rajani. The basis
for this was that Rajani had allegedly ignored his client's instructions
that
he had been acting in self-defence, and had instead persuaded
McFarlane to
run
his case on the basis that the identification evidence
was unreliable.
Mr Rajani had attended McFarlane at the police station following his
arrest. He had asked McFarlane for
'the
full
truth'.
McFarlane admitted
killing Cook
and
became distressed. Mr Rajani advised McFarlane
not
to answer questions in interview. At the subsequent identification
parades,
none
of the witnesses identified McFarlane. Once McFarlane
was charged, the defence did their best to keep all possible options open.
At the s6(1) committal an unsuccessful argument of no case to answer
was
run
on the basis of the unsatisfactory identification evidence. No
statement was taken from McFarlane until just before trial, when, after
several variations, the final statement provided that 'someone had been
stabbed, I
had
nothing to do with it'. The defendant did
not
give
evidence at trial.
HELD,
DISALLOWING
THE
APPEAL,
at no stage had McFarlane unambi-
guously told his solicitor
that
he had stabbed Cook in self-defence. Nor
did the court accept that McFarlane had been persuaded to
run
a
misidentification defence
rather
than
self-defence by his solicitor, Mr
Rajani. The defendant was experienced in criminal matters,
and
it
was
inconceivable
that
he would
not
have raised self-defence in
any
of
the
three conferences with counsel if this had been his defence.
However, Mr Rajani's conduct was unacceptable. He
had
never
recorded the admission to the stabbing which was made at the police
station. Nor
had
he ever told counsel about this admission. This was
an
attempt to do the best he could for his client by keeping his options open
as long as possible.
A solicitor is entitled to defer taking full instructions until the detail of
the
prosecution case is known. It was reasonable to
run
the
committal
on
the basis of misidentification. However, written, signed instructions
as to the essence of the defence should have been obtained as soon as
possible after committal.
It
is incompatible with the solicitor's duties to
the court to make up or to select a defence-to acriminal charge.
COMMENTARY
McFarlane
is of interest as it is one of the rare cases
that
attempt to
consider the balance between the solicitor's duty to his client
and
his
duty to the court. The
Guide
to the
Professional
Conduct
of
Solicitors
makes
clear that simply because a client makes inconsistent statements, this is
568
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