Abstract
This case relates to whether the failure of defence counsel to cross-examine a complainant rendered a conviction unsafe. On 1 December 2022, the appellant, Mr Brooker (Graeme), was convicted by a jury of two counts of theft and was acquitted of a single count of the same. He was subsequently sentenced to a total of three years’ imprisonment. At his trial, the appellant’s then defence counsel refused to cross-examine the complainant in relation to the theft charges faced by the appellant. The essence of the appeal was whether ‘defence counsel's incompetence resulted in identifiable errors in the trial process and rendered the convictions unsafe’ (at [77]).
Background
Mr Brooker stood trial for theft, following allegations made by his older sister, Ms Cheryl Brooker. Ms Brooker suffered ill-health, having epilepsy and suffering a series of strokes. Her mobility was significantly reduced, and she suffered from hearing loss (at [4]). For a time, the appellant gave up work to care for Ms Brooker and was paid for doing so (at [5]). The appellant, albeit with funds provided by Ms Brooker, built a bungalow in the garden of his home for Ms Brooker to live in. The appellant also supported Ms Brooker with managing her finances. The relationship between the appellant and his sister subsequently broke down, and Ms Brooker alleged that the appellant had stolen large sums of money from her over a period of seven years (at [5, 6]).
Having been sent for trial at the Crown Court on 10 September 2020, the case took some two years to be heard. In that time, a number of pre-trial hearings took place, at which notable decisions were made. On 1 February 2021, the Court granted a special measures application made under s.16 Youth Justice and Criminal Evidence Act 1999, for the complainant’s Achieving Best Evidence (ABE) interview to stand as her Examination in Chief, with a subsequent application, by virtue of s.28 of the same Act, for cross-examination evidence to be pre-recorded also being granted at a so-called s.28 hearing (at [22, 23]). These applications were made, in part, due to the disabilities of the complainant, which could be exacerbated by the stress of attending court, the impact of which risked Ms Brooker’s evidence being less accurate and, therefore, less reliable. This was based on Ms Brooker having the potential to become confused when fatigued, and having a dissociative identity disorder, episodes of which could cause gaps in her memory, thus impacting the perceived veracity of her evidence (at [22, 23]).
Where a cross-examination is to be pre-recorded at a s.28 hearing, this happens before the start of the trial and with all participants present, aside from the jury. Prior to the s.28 hearing, the Judge holds a ground rules hearing, at which she will check whether the questions that defence counsel plans to ask are appropriate for the witness (HMCTS, s.28 YCJEA 1999 Frequently Asked Questions – August 2020). In the instant case, the court directed that Mr Brooker’s then defence barrister should submit questions a week in advance of the ground rules hearing. However, he did not do so, and the ground rules hearing was adjourned until 13 September 2021 (at [26]).
On 10 September 2021, the trial court was notified of Mr Brooker’s then defence Barrister’s intention not to cross-examine the defendant due to the fragility of her health (at [27, 28]). This set in motion a significant degree of pre-trial litigation centred on whether Ms Brooker should be cross-examined/the barrister could legitimately or ethically refuse to cross-examine Ms Brooker.
At one pre-trial hearing, the Judge highlighted that the question of whether a witness is medically fit to be cross-examined is a matter for the Judge, and not at the behest of defence counsel (at [37]).
Subsequently, a consultant forensic psychiatrist furnished the court with an expert report, which indicated that Ms Brooker was not, in fact, suffering from dissociative identity disorder. Rather, she suffered from depressed mood, anxiety, and emotional problems. The expert, ‘whilst ultimately recognising [that it] was ultimately a matter for the jury … expressed a view that [Ms Brooker’s] history of mental health problems would not alone render her testimony unreliable’ (at [45]). The court was also provided with a report from an intermediary, which set out some of the challenges faced by Ms Brooker in communicating. This report saw a successful application for Ms Brooker to be cross-examined via an intermediary (at [47]).
Mr Brooker’s trial counsel maintained his refusal to cross-examine Ms Brooker and, prior to the ABE interview being played, which was also included in written legal directions and summing up. The essence of the direction was to outline to the jury the purposes of cross-examination (including the extent to which the defence is duty-bound to put their case to a witness) and that it was for the trial judge to decide whether a witness could be asked questions. The judge made it clear to the jury that she was of the view that the witness was fit to give evidence, and that it was counsel for the defendant who had decided not to call Ms Brooker to be cross-examined. The judge went so far as to inform the jury that they ‘will not have been afforded, as a jury properly should be, the opportunity to form [their] own assessment by seeing and hearing [Ms Brooker’s] direct responses to question put to her by the defence’ (at [63]). The judge also highlighted that the jury may draw adverse inferences form the defence’s failure to cross-examine Ms Brooker (at [63]) and, in her legal directions and when summing up, told the jury that ‘… defence counsel, for his own and perfectly good reasons – which I know he’ll tell you about – didn't wish to put any stress on the witness, or indeed, risk putting any stress on her and so chose not to ask her any questions’ (at [64]).
Indeed, in closing, Mr Brooker’s barrister summarised his client’s case to the effect that the complainant was recalling a memory that she might truly believe to be correct, but was, in fact, incorrect (at [73]). He also explained to the jury his decision not to cross-examine Ms Brooker, focusing on his wish to avoid having a reputation for cross-examining a disabled person who had a stroke and subsequently died (at [74]).
Mr Brooker subsequently appealed on the basis that ‘defence counsel’s incompetence resulted in identifiable errors in the trial process and rendered the convictions unsafe’ (at [77]). Mr Brooker’s counsel in the Court of Appeal described his trial counsel’s decision not to cross examine as ‘seismic’ (at [75]) and that his closing speech, in effect, undermined his client’s case, as he had failed to remind the jury that Mr Brooker’s case was that the complainant had control of her finances (at [89]). It was also suggested that Mr Brooker had not been properly advised as to the consequence of not cross-examining the main witness in the case against him (at [83]) and that his counsel had not ‘fully and fairly’ put the defence case to Ms Brooker (at [87]).
On the failure to cross-examine Ms Brooker, the Court of Appeal cites Phipson on Evidence (20th Edn. Sweet and Maxwell, 2022), indicating that cross-examination serves an opportunity for prosecution witnesses to deal with any issues with their evidence, and thus, it was the prosecution’s case that would, in any event, have suffered unfairness as a result of trial counsel’s decision not to ask questions of Ms Brooker’s evidence (at [118]). The Court of Appeal also described the ‘effect of the adverse direction … [to be] fairly anodyne’ and that Mr Brooker had ‘no more than “buyer’s remorse” in respect of the tactical decisions of his counsel which he fully supported at all material times’ (at [118]).
Commentary
The essence of this case can seemingly be summarised in a single sentence. It is quite possible that, even where trial counsel does not ‘promote fearlessly and by all proper and lawful means the client’s best interests … without regard to [counsel’s] own interests or to any consequences to [them]’ (BSB Handbook, the Conduct Rules, rC15.1 and rC15.2), a conviction can be safe. Indeed, Mr Brooker’s trial counsel, in closing, by his own admission, indicated that his rationale for not cross-examining Ms Cheryl Brooker may be deemed selfish, as he did not wish to have on his record, that he caused a disabled person to have a stroke and die as a result of being cross-examined by him (at [74]). Whilst a completely understandable position, this is arguably a dangerous precedent to set, and undermines the extent to which, in a system whose roots can be found in adversarialism, a defendant can rely on their barrister to selflessly defend them against prosecution.
Linked to this, troubling is the emphasis which the Court of Appeal places on Mr Brooker’s decision to continue instructing his trial counsel, even though he was aware of the implications of counsel’s decision not to cross-examine Ms Brooker and the assertion that Mr Brooker was merely suffering from ‘buyer’s remorse’ (at [118]). It is of note that Mr Brooker had earlier told the police that he had ‘no previous experience of the legal system’ (at [43]). The Court’s approach here, appears to assume that a lay client with no prior involvement with the criminal justice system, has an ability to sense-check their barrister’s advice and decisions, rather than be in a position to place the presentation of their case in the hands of a legal expert whom they can be confident is making proper decisions which focuses only on advancing the strength of their case, albeit within the confines of the relevant legal, procedural and ethical rules. It is of note that, had Mr Brooker’s solicitor been present at conferences at which the cross-examination of Ms Brooker was discussed, they might’ve been in a position to advise him as to the risks attached to counsel’s approach, and the Court’s conclusion here might be more readily justified.
Finally, the words of Iain Morely come to mind, where he describes ‘every question in cross-examination [as] an invitation to disaster’ (The Devil’s Advocate, Sweet and Maxwell, 2005 at [146]), when assessing the Court of Appeal’s conclusion that the failure of counsel for the defence to put questions to a prosecution witness in cross examination goes to undermine the case for the prosecution. Whilst this is true, taken on its own, it somewhat ignores the role of cross-examination in advancing one's case. This is indicated in the instant case, where the trial judge, quite rightly, interrupted Mr Brooker’s trial counsel’s attempt to persuade the jury that Ms Brooker’s memory of events, whilst not intentionally misleading, was nonetheless false. The trial judge was, in effect, diverting counsel away from inviting the jury to draw conclusions in relation to which they received no evidence during the course of the trial. Had Mr Brooker’s trial counsel put to Ms Brooker in cross-examination that her memory was false, the veracity of this point could have, quite properly, been left to the jury.
In essence, the significance of cross-examination in advancing a defendant’s case appears to have been underestimated here. Indeed, in advocacy training, a student would likely, on ethical grounds, fail an assessment for not putting their client’s case to a witness whose evidence their client disputes, yet it would appear insufficiently serious to persuade the Court of Appeal to declare a conviction unsafe.
