“Don’t call them McKenzie friends” – Court of Appeal looks to counter growth of unqualified advisers in crime cases

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Hallett: loss of time orders

The term ‘McKenzie friend’ is not appropriate in the criminal division of the Court of Appeal, the vice-president of the court has said in a ruling detailing the problems that the increasing number of “unqualified third parties” is causing.

Lady Justice Hallett also said there needed to be clearer guidance to aid law schools with projects to help convicted people decide when they need to bring lawyers to work on the case.

In R v Conaghan & Ors [2017] EWCA Crim 597, she was ruling on four renewed applications for leave to appeal against conviction which were listed together because each defendant had been helped in presenting his application by a third party who was not legally qualified.

One was assisted by his wife, another by a friend who described himself by a “McKenzie type friend”, and the other two by law students, at Northumbria University and the criminal appeal project of BPP Law School respectively.

However, the Northumbria students did not represent him in court; instead he had a barrister acting pro bono.

The court’s registrar had allowed the BPP students to conduct the litigation but he was not represented at the hearing because counsel who were going to act pro bono could not attend and applications for adjournment were refused.

The four cases – at the end of which the Court of Appeal rejected each appeal against conviction – were also used as a vehicle for it to consider a practice note on litigants in person issued by the registrar in December 2015 and to give general guidance.

Hallett LJ said: “It has become increasingly common in the Court of Appeal Criminal Division (CACD) for the court to receive applications by unqualified third parties to represent an applicant and address the court, usually at renewed applications for leave hearings where public funding is exhausted.”

She listed several problems caused by this trend, including that “third parties have submitted applications on a litigant in person’s behalf where it has been unclear that they were acting in an applicant’s best interests and or with their full authority”.

Further, third parties have operated “as if they were a legal representative”, and have also advanced applications criticising the trial lawyers, “without consulting the trial lawyers as is required of fresh legal representatives”.

Also, Hallett LJ said: “Third parties with a personal interest in the proceedings, or with a cause they wish to advance, or simply with the best of intentions, have presented totally unmeritorious applications.

“They have thereby raised the hopes of an applicant, taken up a very considerable amount of time and resources of the court, and put an applicant at risk of a loss of time order.”

This applies an extension to a sentence as a penalty for unmeritorious appeals and in these cases the court imposed a 28-day loss of time order on each defendant.

Giving the requested guidance, the court said that “the term ‘McKenzie friend’ is not appropriate in the Court of Appeal Criminal Division”.

Terms such as ‘applicant’s friend’ or ‘applicant’s helper’ “might well be more appropriate”, but Hallett LJ said she would await the outcome of the consultation on McKenzie friends carried out last year in the civil and family jurisdictions, which addressed this issue.

She continued: “The court will only allow a non-qualified third party to address the court in exceptional circumstances, and this will be decided on a case-by-case basis. If the registrar has exceptionally granted permission for a non-qualified third party to act as a litigator, it does not follow that the court will also grant the third party a right of audience.”

While the practice note was “generally consistent with the current law and best practice in this area”, the court recommend a possible improvements, including a review of whether the terminology used could be “properly understood” by the majority of litigants in person.

“Second, we suggest the registrar may wish to structure the guidance in such a way it better highlights the individual stages in the process. This should enable bodies (such as student law advisory bodies) to make an informed decision as to how far they can go in assisting a litigant before involving the services of a lawyer.

“Third parties should be put on clear notice that an application should not be advanced beyond the single judge stage, following a refusal, without the applicant being fully advised as to the possible consequences.”