Tooks barrister Lawrence McNulty has responded to the outgoing Lord Chief Justice’s strongly-worded criticism of his handling of a recent terrorism case by suggesting that the Court of Appeal may have got its facts wrong.
Writing yesterday in the comments section of the Legal Cheek story which reported the news, McNulty states that “those who wish to comment on the case should be aware that much of the factual material relied upon by the Court of Appeal and their findings is in dispute”.
He adds that the disputed material includes “at least one matter alleged to be said by me in quotation marks, which attracted significant criticism by the Court of Appeal and is repeated [in the Legal Cheek story], which the transcript proves was never said by me at all”.
McNulty also takes issue with the fact that the Court of Appeal made adverse findings about him without giving him the opportunity to respond. His full comment is re-produced below…
Lawrence McNulty comment
I think those who wish to comment on the case should be aware that much of the factual material relied upon by the Court of Appeal and their findings, is in dispute (including at least one matter alleged to be said by me in quotation marks, which attracted significant criticism by the Court of Appeal and is repeated above, which the transcript proves was never said by me at all). For reasons which will be obvious from that which is below, this is not the appropriate time and place to set those matters out. However perhaps the following is worth, considering and pause for thought:
1. Though I indicated that I would be happy to attend and give evidence no party nor the Court of Appeal themselves saw fit to take me up on that offer. The fact the offer was made is omitted from the judgement.
2. I provided the Court of Appeal with my detailed written response to the allegations of misconduct submitted to the BSB, dated 11th April 2012, which runs to 44 pages. They were also supplied with a separate written response to the claim that Mr Farooqi was given inadequate advice not to give evidence and all my written instructions. Thus the detail of my anticipated response on oath was known to all. This is referred to obliquely at paragraph 55 of the judgement.
3. Defence Counsel on the appeal had a duty to represent their client’s interests as they thought best. In order to support his ground of inadequate representation Charles Bott QC, attacked my position in his argument, without calling his client to provide any evidential support. At no time was it ever suggested that evidential support from his client was anticipated.
4. To a slightly lesser extent prosecution Counsel also attacked my position, treading the delicate line of arguing that an otherwise appealable summing up (which they requested at trial) was justified by my conduct, but nevertheless the conviction was safe. Successful navigation of that route was the only way appeal could be resisted, a fact which was obvious even before the summing up was delivered. The obvious tensions between the prosecution objectives has been commented on by others.
5. No one in the Court of Appeal had any role or duty to represent my interests.
6. In light of the above it is not surprising no party called me to give evidence. What is both surprising and troubling is that the Court of Appeal chose to make adverse findings about me without calling me of its own motion and giving me the opportunity to respond on oath.
7. I will seek redress for the conduct of the Court of Appeal and Charles Bott through the appropriate channels.
8. The disciplinary hearing in respect of my conduct is due to be heard at the end of January 2014. I now propose to resume what I hope (perhaps in vain) others will regard as dignified silence until that event.
6th October 2013