‘It’s not appropriate’: Top judge expresses concern over McKenzie friends after hearing criminal appeals prepared by law students

Two of the applications received legal support from students at Northumbria University and BPP Law School

A top judge has said she’s very concerned about the use of McKenzie friends, after she heard a number of unsuccessful criminal appeal cases which received support from law students.

In a ruling published earlier this week, Lady Justice Hallett stated that the term ‘McKenzie friend’ — non-qualified persons who assist litigants — “is not appropriate in the Court of Appeal Criminal Division (CACD).”

Hallet, vice-president of the CACD, called for clearer guidance on the matter and suggested that terms such as “applicant’s friend” or “applicant’s helper” might well be more appropriate. She said:

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. It will only do so in exceptional circumstances.

The top judge made the comments after hearing four renewed applications for leave to appeal against conviction that had been listed together because each defendant had been assisted by a non-qualified third party.

The ruling in R v Conaghan & Ors reveals that one defendant received support from a “McKenzie type friend,” while another was assisted by his wife. Interestingly, the remaining two defendants received legal assistance from law students at Northumbria University and BPP Law School’s Criminal Appeal Project, respectively.

Both sets of law students had arranged for barristers to represent their clients in court on a pro bono basis, however BPP’s counsel was unable to attend and applications for adjournment were refused. Continuing her assault on McKenzie friends, Hallett 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.

She duly rejected all four applications for leave to appeal. A spokesperson for Northumbria University told Legal Cheek:

The Student Law Office at Northumbria University provides pro bono legal advice and representation to members of the public in a number of legal areas including criminal appeals. The students conduct the work under the constant supervision of a qualified and practising solicitor or barrister with the requisite competence in the relevant field. We work closely with external counsel where necessary and in this case obtained the opinion of external counsel. At the hearing in question we ensured that the client was represented by expert counsel on a pro bono basis.

BPP Law School declined to comment.

Hallett’s comments come just weeks after a University of Westminster law student launched a website that allows litigants-in-person (LIPs) to hire out wannabe lawyers for as much as £100 a day.

‘McKenzie Friends Marketplace’ aimed to match law students wanting to gain hands-on legal experience with members of the public who are unable to afford the services of a fully-qualified lawyer. However, just days later and following a wave of criticism, the site’s creator, Fraser Matcham, was forced to ban “active students” from giving legal advice as part of the scheme.

Read the ruling in full below:

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40 Comments

Anonymous

Para 7 is terrifying if the students were working under constant supervision.

(9)(0)
Anonymous

The whole thing is terrifying:
In Conaghan, there was a six year delay between approaching the law school and the lodging of the appeal.
In Ramchaitan, there was a four or five year delay between approaching the law school and an application being made to the CCRC (which was wrong because D’s avenues of appeal had not been exhausted.
This is one of the many areas in which the practice of law is different from the study of law: in real life, poor performance and slacking off can have consequences for people other than yourself. Perhaps the most disturbing aspect is that in both cases where students were involved, the CoA considered making a loss of time order. Those orders are made where an applicant has pursued a meritless application for permission to appeal and means that the time between making the application and its dismissal *does not count towards time served*. So these clowns could have ended up making their clients re-serve *years* of their sentences all for the sake of a few CV points.

(42)(0)
Scrapingdabarrell

Do Top Judges only hear cases from Top Barristers?

(14)(1)
Anonymous

good point, well made.

What about half QC’s too? Q’s. ‘

(0)(0)
Anonymous

From paragraph 7:

“Conaghan is now assisted by law students of Northumbria University. The students prepared his application for leave to appeal but the process took nearly six years. The students settled the grounds of appeal including criticism of trial counsel without complying with the requirements of McCook and they lodged a report on the applicant’s behalf from a witness whose expertise in the relevant field has been doubted on a previous occasion by this court. The same students are assisting in other live cases before the court. ”

What a joke.

(13)(1)
Sleepy lawyer

I feel critisism of the students involved is slightly unfair. They either wouldn’t know any better or have no avenue through which to fix the issue. Blame should be purley for the supervising solicitor or barrister. They are meant to be a professional guiding students and appear to not even be checking for the grounds of appeal. Everyone involved in the legal profession has made mistakes, but our supervisors where there to catch it before we qualified and knew what we were doing.

I also am not happy that the probono barrister didn’t turn up and no delay was allowed. How can you expect a third year LLB student to perform with little notice to the CoA and do a good job? Very unfair on the applicant.

(14)(10)
Anonymous

Very unfair on the applicant not to allow a hopeless case to linger just that little bit longer?

(4)(1)
Sleepy lawyer

Might not have been hopeless if it had a barrister, rather than a terrified LLB student, defending the application.

The applicant deserve at least the chance to be properly represented. That was the only point I was making.

If it trueley was hopeless- the probono barrister and supervisor both need to be reported to the regulators. What were they thinking?

(6)(7)
Anonymous

The single judge had already ticked the ‘loss of time’ box according to the judgment, so s/he must have thought that the grounds as drafted were without any merit at all. And the Court appear to have already granted one adjournment to allow pro bono counsel to attend.

I agree it is a poor show for counsel, even if appearing pro bono, not to attend after agreeing to (absent very good reason) but it doesn’t appear to have made a difference here.

(1)(0)
Sleepy lawyer

Well that being the case I can understand the courts decision, though the barrister is still responsible- rather than the students- to my mind. Being a professional she should never have allowed it to court if it was that awful.

(0)(1)
Ex Pro Bono Student Advisor

This is part of the problem with the student pro bono clinics and so called “McKenzie Friends”. Whereas the profession has a set of rules and codes of conduct that it (should…) stick to, there is no such guidance for these people.

The pro bono clinic I worked/volunteered with could be a bit of a shambles at times to be totally honest, but the team of people who actually ran the cases and acted on the clients behalf were all fairly responsible and competent, and sought supervision on everything from qualified solicitors before acting. That discipline was more voluntary than mandatory however. Whilst we were (and they still are) quite successful, I can see how easy it would be for standards to drop elsewhere, and especially if one was working more independently.

I think these student led services are excellent for both the students and those they help – but only when it is delivered to a high standard. we always tried to hold ourselves to the same standard expected of the profession and, in instances where that standard slipped there were consequences for those involved – some being asked to leave on occasion. we were fortunate in that we had a reasonably small team, meeting regularly to discuss cases and meeting regularly with our advisors. other outfits may not have that same level of contact.

On saying that, we never dealt with any criminal proceedings. Only civil matters – mostly housing issues and small claims actions. i can see where in a criminal case, more oversight is needed. I would tend to agree that it’s not appropriate for the CACD. Some of these outfits really do stretch their remit, which i think should be fairly restricted. They are not replacements for qualified solicitors, just an ancillary service.

(15)(1)
Tim

Is this the same Lady Justice Halley who doesn’t understand the principle of equality before the law, recently arguing that people whom she thinks is unworthy of trial by jury, should not get it.

Perhaps some LLB students could enlighten her?

Perhaps she should argue that all accused have good representation rather than attack these generous students.

(5)(18)
Anonymous

That’s not what she said at all. But why allow the facts to get in the way of your prejudices?

(9)(1)
Tim

The fine Tory newspaper that reported this had the headline:

“Senior Court of Appeal judge: Remove right to jury trial for petty criminals.’

Her words therein are even worse than what I have reported here, so you may thank me for my forbearance.

(1)(8)
Folarin Oyebola

Very good Barristers are hard to find even if you are willing to pay so what does a person do? On the CACD I take there judgments with a pinch of salt. How can anyone be sure that these Judges have considered all the facts and laws in the reasoned judgment of the court? My experience as a litigant in person who appeared before Sir Brian Leveson in the [2013] EWCA Crim 1052 judgment is that: these Judges (emphasis added) exclude submissions from judgments that will discredit the reasoning of their judgments. In paragraph 74 of the[2013] EWCA Crim 1052 judgment the CACD state: the manner in which his conviction was obtained is not an issue for us. How can it be that the manner in which a conviction that underpins a confiscation order being considered is not an issue for the said court?. Legal Aid cuts will increase more LIPs and applicant’s friend or applicant’s helper to the courts. Yes from experience an LIP can take 10 pages or four submissions to express a point as oppose to a good Advocate heating the point straight on but the bigger scandal is the abuse of judicial discretion by Judges which is exemplified by excluding submissions from judgments that will allow any person with a grasp of english question the logic of the judgment.

(3)(9)
Anonymous

I’m at the Bar. I think this post nails what’s wrong with the perception of the average LC commentator: far too much deference for the judiciary. Plenty (though not all) of them are on the bench because they didn’t cut the cheese in their previous life as a solicitor or barrister. 99% of people on here – myself included – will have had no personal experience of this particular judge. Reading a judgment with no other involvement in a case means you have very little, if any, understanding of the quality of that judgment.

(6)(8)
Anonymous

What a load of bollards about judges not cutting the mustard. Heather Hallett was a top practitioner, as most judges have been.

(9)(3)
Not Amused

No one on this site is more rude about judges than me. Part of the reason I visit this site is to combat deference in the young.

But, Heather Hallett is an outstanding judge who I hope to see very soon in the SC.

(4)(2)
Just Anonymous

Another way to lack understanding of a judgment is not to read it at all.

Upon reading this one, we see that the CA didn’t even have jurisdiction to consider Mr Oyebola’s conviction. In fact, it had already rejected a separate appeal against conviction [5]. The current appeal was against the confiscation order only. Obviously, the CA is perfectly justified in summarily dismissing patently irrelevant arguments!

Accordingly, I don’t think Mr Oyebola really nailed anything,

(14)(0)
Anonymous

Do you know what submissions where dismissed as irrelevant? Why has the judgment not given a summary of the irrelevant submissions so that there will be no need to complain that the CACD is only giving analysis to submissions that satisfies an agenda? Misleading the court is a serious crime(see [2014]EWHC 2974 (Admin)). Finally Master Price of the Chancery Division disregarded the said [2013] EWCA Crim 1052 judgment on 23 January 2017. Who do you go with Chancery Division or CACD?

(0)(0)
Anonymous

And to think the SQE advocates this type of work by students and will consider it qualifying work experience (if the SRA get their way).

(5)(1)
Anonymous

I have been ‘supervising’ a University’s pro bono criminal appeal project. I found it necessary to restrain their exuberance on many occasions. Unfortunately, this led to them just submitting grounds of appeal on a case without even showing them to me (despite my request to see them and their promise to run them past me). There is only so much you can do to supervise them if they aren’t willing to accept professional advice.

(6)(1)
Anonymous

Yeah, well, maybe that’s partly to do with employers et al forever chirping on about the importance of being ‘able to take the initiative.’ Here are young people out of their depth attempting just that.

(0)(1)
Doc. Ludvig Friedrich Von Lowenstein

Well will ya lookee here Doc. We were right all along.

(0)(0)
Doc. Heinrich Litevsky

I wouldn’t get too full of your self Doc. Methinks you too were once described as Jamieson was.

(0)(0)
The Bar Necessities

Northumbria University’s response indicates that these student law projects are little more than a marketing tool.

At the hearing in question we ensured that the client was represented by expert counsel on a pro bono basis.

While this is no criticism of her, to call her ‘expert counsel’ is disingenuous. Someone who is not yet 18 months out of pupillage and who has not previously appeared in any case reported on Lawtel (whether alone or led)—who has not appeared in the Court of Appeal (whether alone or led) before—cannot sensibly be called ‘expert counsel’. I’m sure it is not a description she would apply to herself.

The universities advertise these student-led practises as if they give students an advantage because the students have some experience of the realities of practice. In truth, all they have managed to do is spend some seven years advancing grounds of appeal that were flawed in law, having fail to follow the correct procedure, obtaining a report from an expert who (if you searches for in Westlaw) the Court of Appeal had previously cast doubt on, before finally instructing very junior counsel to argue a hopeless case that ultimately left their client exposed to a loss of time order and the risk of spending more time in prison.

The universities need to stop letting students play at being in practice. The students clearly haven’t learned anything and their clients are at risk of serving more time in prison. The only benefit here is for the training providers, who market these projects to increase intakes and increase their profits. It should be stopped.

This post has been moderated because it breached Legal Cheek’s comments policy.

(5)(1)
Anonymous

I think the “expert counsel” tag is rather unfortunate. She is however an outstanding practitioner and given that she attended Northumbria it’s hardly surprising that they saw fit to elevate her to such a position – marketing 101.

This post has been moderated because it breached Legal Cheek’s comments policy.

(2)(1)
Iami Rastafari of Down Pressed Counsel

Inappropriate is one of those words that has no legal meaning and is only used by snobs.
They never say why it is inappropriate.
I have never come before Hallet, despite appearing regularly in the Queens Bench. I have appeared before Mrs Justice Bobby when she was a recorder, despite hardly ever appearing before the Crown Court.

(0)(0)
Shaunasshey O Connooughlaghcuchagh

Sheigh an mor , sheigh an mor , sheigh an connoogh lagh cuchagh

(0)(0)
Anonymous

This is what happens when comprehensive Legal Aid isn’t available.

(3)(0)
Anonymous

Her implied criticisms of the students are a little ill-judged. Plainly there is a need for some of the current systems to be reviewed but criticisms from judges do not provide solutions.

(0)(1)

Comments are closed.