J U D G M E N T

1. LORD JUSTICE LATHAM: This is an application for permission to appeal a decision of Mr Justice Buckley, dated 7 April 2004, when Mr Justice Buckley dismissed the applicant's claim for damages against the barrister who had represented him at a trial at the Old Bailey in July 1997 and in the consequential appeal which was dismissed on 23 April 1998.

2. The applicant had been charged with attempted rape, two counts of indecent assault and witness intimidation. The incidents upon which the prosecution relied occurred in June and November 1996, and the complainant identified the appellant as her assailant. The applicant's defence was that he was not there. He called alibi evidence from his parents to that effect. He asserted that the identification was flawed. The jury however convicted him by a majority. He was sentenced to 8 years' imprisonment.

3. After the appeal had been dismissed by the Court of Appeal on the occasion to which I have referred, the applicant's father took up the matter on the applicant's behalf and the case was referred to the Criminal Cases Review Commission which, in turn, referred the matter back to the Court of Appeal. After a further hearing the applicant's convictions were quashed and a re-trial was ordered. The result of the re-trial was that the applicant was acquitted. The basis upon which the original conviction was quashed was based upon five essential complaints by counsel then instructed by the applicant: first, that the judge at the first trial had failed to give the Lucas limb of the alibi direction; secondly, there was an inadequacy in the Turnbull direction in the summing-up; thirdly, the judge had referred in his summing-up to the power of the judge to bring the trial to an end at half-time in a way which might have indicated to the jury that the fact that he did not indicated that he, the judge, considered that there was sufficient evidence upon which the jury could convict; fourthly, that the judge made a number of comments about a shirt that were inappropriate in relation to identification; finally, and generally, that the summing-up was significantly inadequate.

4. The applicant's case against his counsel at trial and at the first appeal was based centrally on the fact that she did not - at the trial - draw the judge's attention to the fact that he had not given to the jury the Lucas limb of the alibi direction, and, secondly, that she, when presenting the appeal to the Court of Appeal, did not include that as a ground of appeal. The applicant submitted to the judge at trial that counsel was under a duty to bring the judge's attention to the fact that he had inadequately directed the jury in that regard, and even if counsel was justified in deciding, as a matter of tactics, not to do so at the trial that should not have precluded her from raising the matter on appeal, and her failure to do so was accordingly a breach of her duty to the applicant.

5. The judge found that counsel did appreciate at the time of the trial that the judge had failed to give the full alibi direction but was of the view at the time that it was not mandatory to give one in every case. That view was supported by counsel for the prosecution who was called to give evidence on her behalf. The judge accordingly concluded that counsel was justified, as a matter of judgment, in concluding that it would be tactically unwise to draw the judge's attention to the deficiency in the summing-up because that could have resulted in the jury being recalled and a further direction given which directed attention at the alibi evidence, which Mr Justice Buckley concluded might have been to the disadvantage of the applicant. He further concluded that since that decision in relation to the alibi direction was a deliberate tactical decision, counsel was entitled, as she did, to conclude that it would be inappropriate for her to pursue that as a separate ground of appeal before the Court of Appeal. He considered that her judgment in that respect was entirely reasonable and, that, in particular, it had not been established, as the applicant had to do to obtain relief, that it was clearly wrong.

6. The judge accordingly dismissed the allegations of negligence. He said in any event that when the whole of the trial process, including the two appeals, was considered, it was by no means clear that the failure of the judge in the first trial to give the Lucas limb of the alibi direction had any effect on the safety of the conviction bearing in mind the total of the criticisms which the Court of Appeal considered justified allowing the appeal at the second appeal.

7. The applicant, who has appeared on his own behalf today in front of me, has put before the court substantial and clearly expressed arguments in support of his application for permission to appeal. He submits that Mr Justice Buckley was at least arguably wrong in the conclusions he came to in relation to the way in which counsel acted at the trial, but, more particularly, in relation to the way she dealt with the appeal.

8. I have considered with care the material with which I have been provided. It seems to me that there can be no doubt that the judge was right in relation to what happened at the trial. The failure of the judge to give the Lucas limb of the alibi direction was undoubtedly considered at that time - amongst counsel - to have been a matter which would not of itself be likely to have been subject of criticism at the Court of Appeal. And the tactical decision not to raise the matter was fully justified in the light of the way in which the evidence had emerged at the trial.

9. The real question, it seems to me, is whether or not Mr Justice Buckley was right to conclude that counsel was not negligent in failing to raise that as a ground of appeal. It is clear that from counsel's point of view she considered that she was in difficulties because she had made a clear tactical decision in relation to this matter at the trial, and it would, in a sense, be going back on that decision to complain to the Court of Appeal as to that failure.

10. There does seem to me to be some justification for the criticism that counsel should not have felt inhibited about taking such a point on appeal if the matter has been subject to a deliberate tactical decision because one can readily understand that it may be appropriate at the trial not to raise the matter, but that should not necessarily inhibit counsel from raising the matter on appeal. But the fact that it should not necessarily inhibit counsel from raising the matter on appeal is a long way from saying that the failure of counsel to raise it on appeal amounts to a breach of counsel's duty of care to his client, which is the question that Mr Justice Buckley had to determine. There is no doubt that there was at the time a substantial body of authority in the Court of Appeal indicating that the Court of Appeal would look with disfavour on arguments based upon deliberate decisions made at the trial by counsel.

11. It seems to me that bearing in mind the fact that the failure of the judge to give the Lucas limb of the alibi direction was not, as is clearly apparent from the second decision of the Court of Appeal, critical to the second decision that the court made - it was merely one of a number of matters - it could not sensibly be argued that counsel was to be held negligent to have failed to raise the matter in the first grounds of appeal before the first hearing in the Court of Appeal.

12. I do not consider that this court would interfere with the decision of Mr Justice Buckley in that respect. The judge, in my judgment, was entitled to conclude that the applicant had failed to establish that there was a breach of duty in that regard. Accordingly there is no basis on which this court would interfere with the decision of Mr Justice Buckley, and the application for permission to appeal must fail.

13. As a matter of completeness, I should deal with two other matters. First, it is said that on an occasion the judge was made aware of the fact that the counsel was only covered to a limit of £250,000. It was most unfortunate if such a remark was made. Clearly, as the applicant has indicated, it raises the question as to whether or not it could have affected the judge. It seems to me that there is nothing which suggests that in this case it had any effect whatsoever on the judge's conclusions. The judge's conclusions were clear. However it is a matter of concern that that statement was made, if only because it raises doubts in the mind of the applicant and, I suspect, his family which should not have been there. I am sorry that, as a result, there has been the concern which should not have been there about the extent to which the judge might have been influenced by that matter.

14. Finally the applicant had sought to appeal against the judge's conclusions on quantum, but, in the light of my views as to the fate of the application for permission to appeal against liability, it is not necessary to deal with those matters.

15. The application is dismissed.

Order: Application dismissed