Jay: “Fog of war”
A criminal defence barrister of “good judgement” who had to make rapid decisions in a “pressurised environment” was not negligent even though it turned out her client was wrongly convicted, the High Court has ruled.
Mr Justice Jay said that, in order to prove negligence, a claimant had to show that what a barrister did or failed to do was “quite plainly unjustifiable” or “blatantly wrong”.
He went on: “When it comes to decisions she made, or did not make, in court, the law must have regard to the pressurised environment and the need to make rapid decisions.
“When it comes to decisions made, or not made, outside court the legal test may not fluctuate but the context is less forgiving.
“A barrister must act in accordance with her instructions, interpret them properly and explain her advice to her client, but it is not incumbent on her to take every point a client may wish.”
The judge said the court, which had the benefit of hindsight, must attempt a degree of “cognitive empathy” with the barrister.
“Sitting in the gentle calm of one’s room at the Royal Courts of Justice, having spent many hours pondering the minutiae of quite a complex case with the assistance of able counsel, runs the risk of over-dissection and over-analysis, both of which borne out of greater time to reflect than was available to the defendant and the knowledge of all that has happened both before and since.”
Jay J said there was a difference between “mistakes, errors of judgement, and negligent errors”, and barristers could make the first two without being negligent.
“The substance matters more than the taxonomy. A claimant can only succeed if the mistake, or error, whether by commission or omission, is deemed to be blatantly wrong. This is a situation where adverbs matter.”
The High Court heard that barrister Rebecca Bradberry, based at Western Barristers Chambers in Taunton, was sued for negligence by Iain Torrance, convicted of rape in July 2013 and sentenced to six years in prison.
Equipped with a new legal team after she gave “negative advice” about an appeal, Mr Torrance submitted an out-of-time application for permission to appeal. The Court of Appeal ordered a retrial in February 2015 and Mr Torrance was acquitted in December 2015.
Mr Justice Jay said Mr Torrance also sued his solicitors, but the claim was compromised in March on confidential terms.
The judge found Mr Torrance was not a reliable witness; it was “obvious that he harbours a massive sense of grievance” and had “persuaded himself by excessive rumination that certain things happened when they did not”.
Jay J described most of the complaints about the barrister’s representation as “micro points” and said the four best ones included the claim that Ms Bradberry’s approach to the defence of her client was “far too passive”.
Delivering judgment in Torrance v Bradberry [2020] EWHC 3260 (QB), the judge said: “We all know that there are barristers who are good at pleasing clients, those who appeal more to judges, and those who are adept at both.
“We also all know that there are very able barristers with little or no judgement, barristers who may not be so strong intellectually but with judgement in spades, and barristers who take every point indiscriminately. And I could go on.
“My overall assessment is that the defendant is a barrister of good judgement. That is how she came across when she gave her evidence, and snippets of this are apparent in the attendance notes.
“The defendant’s closing speech was also well-judged. No pyrotechnics maybe, but balanced and persuasive, and clearly attuned to what she felt would go down well with this jury.
“I asked a number of questions at the end of the defendant’s evidence in order to deepen my apprehension of the level and quality of her judgement. She answered those questions well.
“In particular, I asked her whether she felt, given the way the trial had gone, the claimant should have been acquitted. The defendant said that she did, and her answer was clearly honest and balanced.”
Jay J said the claimant had to show that “in the fog of war” the defendant’s decision-making made was blatantly wrong.
“This is a classic instance of seeking to impugn a barrister’s judgment as to how to cross-examine a difficult, vulnerable witness in circumstances where there was a real risk that she might say something that could seriously damage her client’s case.”
Judgment was given for Ms Bradberry.
Just because they were found guilty doesn’t mean they did it.
Just because they were found not guilty doesn’t mean they didn’t do it.
Toughest thing is to defend a client you truly believe didn’t do it.
Too much pressure.
Thank God it almost never happens – apart from my first jury trial – 24 page confeession.
Not Guilty!!!