Court of Appeal tells barrister she is being “over-sensitive” with complaints about trial judge’s behaviour

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Hallett: relationship between judge and counsel deteriorated significantly

The vice-president of the Court of Appeal’s criminal division has told a barrister who complained about a trial judge that she was over-sensitive and lacked an “understanding of the role of the judge in managing a jury trial”.

Lady Justice Hallett said that while Her Honour Justice Kaul QC should not have expressed her feelings about counsel’s behaviour in front of their clients, the judge did not allow her “undoubted exasperation” to affect the fairness of the trial

One of the grounds of appeal brought on behalf of two of the four defendants in R v Barkauskas [2017] EWCA Crim 1210 was that the judge demonstrated disproportionate hostility to the defence to the extent that the defendants were deprived of a fair trial, in what was a retrial.

Examples were criticisms she made of the two defendants’ counsel at a pre-trial review, her attitude to one of the barristers being ill during the retrial, and stating in front of the defendants that one of the barristers delivered “some of the poorest cross-examination I have ever seen” in relation to one issue in the original trial.

HHJ Kaul was also said to have “summoned counsel’s instructing solicitors to court on two separate occasions to criticise counsel”; the repeated criticism led to one the defendants writing to the judge to ask whether she was suggesting he should change counsel.

The appeal argued that, whilst most of this happened in the absence of the jury, it nevertheless impacted on the general atmosphere in the court and on the defendants’ perception of the fairness of his trial.

Hallett LJ said it was a “sad fact” that the relationship between counsel for the defendants and the judge “deteriorated significantly”.

Though it was not the appeal court’s job to determine whether counsel behaved unprofessionally, she said “we have a number of very real concerns about counsel’s behaviour”.

She continued: “Many of the defence applications were totally unmeritorious, bad points were taken and much court time wasted. Some of the submissions (of both the applicants’ counsel) suggest a lack of proper respect for the court.

“[One counsel’s] complaints about the judge’s favouring others such as the jury or co-defending counsel indicate an unfortunate over sensitivity, lack of objectivity and lack of understanding of the role of the judge in managing a jury trial. We do not expect counsel to behave or react in this way.”

Hallett LJ said that, with the benefit of hindsight, “and not having ourselves been troubled by a ‘constant barrage’ of demands and complaints”, it might have been better if HHJ Kaul had not expressed her feelings about counsel’s behaviour to the extent that she did in the presence of the defendants.

“It would also have been better had the judge kept her email communications to a minimum. It is one thing to send out directions or simple requests electronically, it is another to send emails containing explanations and reasons for rulings and thereby prompting an electronic debate with counsel. This kind of discussion should be reserved for court hearings.

“Nonetheless, the judge did not allow her undoubted exasperation at counsel’s behaviour to affect the fairness of the trial.

“None of the incidents on which reliance was placed occurred in the presence of the jury and there is nothing before us to suggest that the judge’s criticism of defence counsel impacted on the applicants personally.”

This and all the other grounds of appeal were dismissed.

The judge has made a complaint about counsel’s conduct to the Bar Standards Board. We have not named them in this article because the ruling does not identify them fully.