CA slates barristers whose failures led it to wrongly quash conviction

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Carr: No acceptable excuse for what happened

The Court of Appeal has strongly criticised barristers for not realising that the transcript of a trial was incorrect because they had not paid attention to the judge’s summing-up at the time.

This led the court earlier this month to quash a man’s conviction for serious sexual offences.

However, the court has now revoked the order after the error was discovered by chance.

Lady Justice Carr said: “Making all due allowances for the sometimes difficult circumstances in which the publicly funded criminal Bar has to operate, we regret to say that there simply can be no acceptable excuse for what has happened here.”

Ilhan Sakin (IS) was jailed for 14 years for multiple offences linked to the forced and controlled prostitution of two vulnerable women.

The appeal court allowed his appeal on the basis that the trial judge, Her Honour Judge Charles in Croydon, had failed to sum up IS’s evidence to the jury.

“Ms Meek for IS, Ms Merrick for [the co-defendant] MG and Mr Khan for the [Crown Prosecution Service], all of whom were trial counsel below, confirmed to us that she had failed to do so and that the transcript of the summing-up to that effect was accurate,” Carr LJ recounted.

“In these circumstances, we concluded that IS’s convictions had to be regarded as unsafe.”

However, it turned out that HHJ Charles had summed up IS’s evidence: “The transcript was incomplete and counsel’s recollections, to the extent that they can have existed at all, were inaccurate.”

A few days after the original appeal ruling, counsel for IS appeared before HHJ Charles on another matter. The judge made an “informal enquiry” about IS’s appeal and counsel told her what had happened.

She went back to check her notes and listen to the audio file, as did IS’s counsel. They immediately informed the Court of Appeal registrar that she had in fact summed up the evidence.

Carr LJ said the court had “no hesitation” in revising its order and dismissing the appeal against conviction.

“It is self-evidently in the interests of justice to do so. Indeed, but for what was a purely fortuitous encounter between defence counsel and the judge, a serious miscarriage of justice would have occurred. That is a sobering thought.”

Carr LJ said counsel had “very properly apologised for not paying attention to the judge’s summing up and for what is described as their ‘blind reliance’ on the accuracy of the transcript”.

The transcription company, Ubiqus, and the individual transcriber had apologised too, putting it down to “inadvertent human error”.

The judge continued: “But the transcriber’s failure cannot absolve counsel who cannot have paid any attention to, let alone made any meaningful notes of, the judge’s summing up.

“We underscore that it is a core duty of trial advocates, both for the prosecution and defence, to focus on the judicial summing-up at the time that it is given.

“This is necessary for the proper discharge of the advocate’s overriding duty to the court in the due administration of justice (to which the advocate’s duty to act in the best interests of his or her client is subject).

“In particular, it is the advocate’s duty to raise promptly with the judge what appears to be a material error in the summing-up, whether it be of law or fact, at the time of the summing-up.”

As it would have been “a most unusual omission by a judge who was obviously otherwise well-prepared and methodical in her approach to the summing-up”, counsel should have checked the audio files themselves “at least by the time of the full appeal hearing”, Carr LJ went on.

When asked at the hearing whether the transcript was accurate, they “ought at the very least to have indicated that they had no direct recollection of the summing-up and that they had not themselves checked the accuracy of the transcript”.