Popat v Barnes
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Buckley |
| Judgment Date | 07 April 2004 |
| Neutral Citation | [2004] EWHC 741 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 03/TLQ/0891 |
| Date | 07 April 2004 |
[2004] EWHC 741 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Buckley
Case No: 03/TLQ/0891
Alan Newman QC and George Heimler (instructed by BSG Solicitors) for the Claimant
Edmund Lawson QC and Simon Monty QC (instructed by Ince & Co) for the Defendant
Hearing dates: 15 th, 16 th, 17 th, 18 th, 19 th and 24 th March 2004
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Buckley:
Background
In June and November 1996 a young lady was assaulted. She had seen, as she thought, her attacker three times between those incidents. Finally, in the company of the police, she identified the Claimant, Chetan Popat, as her assailant. He was arrested, charged with various offences, including attempted rape, and tried in July 1997. He was convicted by a majority verdict and in due course sentenced to 8 years imprisonment. He was granted leave to appeal by the full Court of Appeal Criminal Division, but on 23 rd March 1998 his appeal was dismissed (appeal 1). Mr Popat continued to maintain his innocence. His father, on his behalf, sought help and advice from the local Citizens Advice Bureaux and other lawyers. Eventually, the matter was considered by the Criminal Cases Review Commission (CCRC) and referred back to the Court of Appeal. In July 1999 the convictions were quashed (appeal 2) and a new trial ordered at which Mr Popat was acquitted in November 1999.
The Claim
In this action Mr Popat seeks damages from the Defendant, Miss Barnes, the barrister who represented him at his first trial and appeal 1. He alleges she was negligent at trial and in connection with appeal 1.
At the trial the defence was mistaken identity. However, in support a Notice of Alibi was served and Mr Popat and his parents gave evidence that he was at home at the time the two assaults.
The Particulars of Negligence as set out in the Particulars of Claim are as follows:
" Particulars of Negligence
(a) Failing to notice the lack of any alibi direction in the summing-up and/or failing to alert the Trial Judge to this omission;
(b) Alternatively, consciously deciding not to alert the Trial Judge to the said omission;
(c) Failing to advise the Claimant at the time or thereafter as to the omission, and/or as to its significance, and/or of its potential as a properly arguable ground of appeal;
(d) Failing to include, or to later incorporate or consider incorporating, the absence of any alibi directions in her grounds of appeal or in additional or supplementary grounds of appeal;
(e) Failing at any time to raise the issue with the Court of Appeal;
(f) Continuing failure to identify or consider any such ground of appeal or, if identified and considered, failing to advise the Claimant thereon, until her instructions to act were withdrawn;
(g) In the premises failing to take sufficient care in her representation of the Claimant and in respect of his appeal."
It is to be noted that the only criticism of the Defendant is in respect of her failure to bring to the attention of the Trial Judge or the Court of Appeal the absence of an alibi direction. No other specific criticism was sought to be raised before me under the more general allegations in (g).
It is agreed that the Defendant neither pointed out the omission to the Trial Judge nor raised it before the Court of Appeal. The "Grounds of Appeal" settled by the Defendant were as follows:
"GROUNDS OF APPEAL AGAINST CONVICTION
The Learned Judge erred in the following respects:-
1. Wrongly rejecting an application to exclude evidence of identification in breach of Code D.2.3 PACEA 1984. This application being made under Section 78 of the same act.
2. Having admitted the identification evidence the Learned Judge failed to give sufficient warning about the failure to hold an identification parade. Suggesting to the jury this was really a 'recognition' case, which it was not.
3. Dismissing a vital defence point in Summing Up. The braces (picture of which is attached hereto) You saw him give evidence could you see his teeth?
4. In leaving the jury out for 11 hours in a case which barely took 2 days and had one single issue. After 10 hours the Judge gave a Watson direction and within 30 minutes verdicts of guilty on all Counts 10:2 followed.
5. In all the circumstances these Convictions are unsafe."
In giving the Court's judgment in appeal 2, Beldam LJ. noted that Mr Popat had been given leave to appeal in appeal 1 only on the grounds that the Judge ought not to have admitted the evidence of identification. Thus no other matters were considered at the hearing. Whilst it must be acknowledged that the Court of Appeal's attention would be fixed primarily on the Grounds raised on behalf of the Appellant, it is apparent that the absence of an alibi direction seemed unremarkable to all seven judges who read the summing-up in the course of appeal 1 (the Single Judge, the Full Court in giving limited leave and the Full Court on the appeal). Unsurprisingly, Mr Lawson QC for the Defendant submitted there was little support to be found in that aspect of the matter for the allegation that here was a blatant omission in respect of a mandatory direction.
The Defence herein (paragraph 6(5)) asserted that the Defendant had advised Mr Popat, in the presence of his parents, that in the circumstances of this trial, to ask the Judge to recall the jury and give them an alibi direction might give them the impression that the judge thought his parents had lied in evidence; Mr Popat then instructed the Defendant not to raise the omission.
That assertion was denied in Mr Popat's and his parents' witness statements. However, in the end there was much less between the parties than the denials suggested. Mr Popat agreed in evidence that he had spoken to the Defendant after the jury retired but could not now recall any details. He did not recall a discussion about the absence of an alibi direction, but accepted one was possible. He agreed he would not have liked any suggestion that his parents had lied and would have followed the Defendant's advice.
The Defendant in evidence could recall no more than speaking to Mr Popat about the alibi. In her witness statement she said she could not say whether the parents were present on that occasion. However, in view of Miss Wass QC's witness statement, she now believed that the discussion with Mr Popat was indeed in the absence of his parents. Miss Wass was prosecuting counsel at the trial. The relevant part of her witness statement, namely paragraph 6, stated that whilst the jury was deliberating she and the Defendant discussed the topic of alibi in the Bar Mess at the Old Bailey and the Defendant told her that Mr Popat felt that a full alibi direction would give the impression his parents were lying and had instructed her not to raise it. She confirmed that in giving evidence. The Defendant also said that Mr Popat appeared to trust her at the trial and would have accepted her advice. She firmly believed at the time and now that an alibi direction would have been against his interests.
Miss Wass also said in evidence that she had discussed the question of an alibi direction with the Defendant before the summing-up. Her own view was that one was not necessary in view of the way she had cross-examined the parties and presented the prosecution case to the jury and did not propose specifically to ask the judge to give one. However, if the Defendant wanted one, she would not stand in her way. She did not believe such a direction was mandatory at the time. The Defendant did not now recall that discussion but accepted Miss Wass' account.
I am satisfied and find that at the trial both counsel had the question of an alibi direction in mind, but believed that it was not mandatory for a judge to give one in every case. I find that both counsel noticed the absence of such a direction in the summing-up; Miss Wass was content and the Defendant honestly believed that for the jury to be recalled for a specific alibi direction would be against the interests of her client, Mr Popat, since it would or might focus attention on the question whether Mr Popat's parents had lied to support his case. Her view at the time was that the parents had not been very impressive witnesses, albeit no one impugned their integrity or honest desire to help their son. I also find that the Defendant discussed the absence of the alibi direction with Mr Popat, that his parents were not present and that Mr Popat agreed that the Defendant should not raise the matter with the Judge.
Mr Newman QC, for Mr Popat, made it clear that he did not suggest that the Defendant had a duty, as defence counsel, to raise the matter with the Judge, but maintained that it was negligent not to do so; she should have invited the Judge to give the standard alibi direction but limiting the so-called "Lucas" limb of it to Mr Popat and not to mention the evidence given by his parents. It is implicit in that submission that the Defendant's assessment of the situation at trial was wrong and that her advice to Mr Popat and subsequent decision were also wrong; not just wrong or in error, but so untenable that no competent counsel could or would have acted in that way.
I have no hesitation in rejecting that submission. Miss Wass and the Defendant both said in evidence, and the transcript confirms, that Miss Wass cross-examined on the basis that the parents simply believed their son when he told them he had been at home with them at the times in question and had no real independent...
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Iain Torrance v Rebecca Bradberry
...as a consequence, the bar which he must overcome is set high.” 141 The final authority I should touch on is the decision of Buckley J in Popat v Barnes [2004] EWHC 741 (QB), which I am taking out of chronological sequence. The case concerned decisions made by a barrister in a case with fac......