Ulcay, R v

This is an appeal by Erdogan Ulcay against his conviction on 23^rd November 2005 at Isleworth Crown Court, before His Honour Judge Testar and a jury, of conspiracy to facilitate the commission of breaches of immigration law by individuals who were not citizens of the European Union. He was sentenced to 12 years imprisonment. His co-defendants included Isma il Toygun, who was sentenced to seven years imprisonment, Mustaffar Gozcu, sentenced to six years imprisonment, Ali Surensoy, sentenced to ten years imprisonment, and Muharrem Garip, who pleaded guilty before trial, and was sentenced to three years imprisonment.

The only significant ground of appeal arises from events which occurred at the close of the prosecution case. At the outset the appellant was represented by two counsel and solicitors, but they then ceased to represent him. The trial proceeded to a conclusion. The appellant was unrepresented. It is submitted that the judge mishandled the problem which arose when counsel withdrew from the case, and that the effect of his rulings produced an unfair trial.

Some of the issues which arise in the appeal are illustrative of problems which arise unfortunately with increasing frequency and create difficulties for the trial process and disadvantage to the proper administration of justice. As questions of importance to the professional responsibilities of the legal professions also arise, we received very helpful submissions on behalf of the General Council of the Bar (the Bar Council) from Mr Timothy Cray, and from Mr Bruce Houlder QC on behalf of the Law Society. There were some significant differences between their respective submissions, and Mr Benjamin Aina, on behalf of the appellant, took robust issue with some of the underlying submissions made on behalf of the Bar Council.

The prosecution case was that the defendants were part of a large commercial enterprise engaged in making arrangements for the illegal entry into the United Kingdom of people who live beyond the borders of the European Union. These defendants were based in the United Kingdom, but the conspiracy included others based in Germany, with yet others from elsewhere in Europe. Most of those smuggled into the United Kingdom were, like all the defendants, of Turkish origin. The conspiracy lasted for just over a year, from the beginning of July 2003 until the end of July 2004. Its linked purposes were first, to ensure that the illegal immigrants entered into the United Kingdom undetected, and second, if they were detected, to support them with bogus applications for asylum.

The Crown’s case against the appellant was formidable. Police in Germany lawfully intercepted and recorded a large number of telephone calls which, by themselves, established the existence of the conspiracy, and the prosecution demonstrated that in consequence numerous individuals entered the country using false names. Many of their travel arrangements were paid for by credit card fraud operated by Garip and the travel arrangements were linked to various telephone conversations recorded by the police in Germany. This evidence directly implicated the appellant as the organiser of the operation. He was known as “Edi” or “Eddie”. A listening device placed in the appellant’s BMW car produced additional powerful support. The conversations between the appellant and other conspirators were preoccupied with the mechanics of illegal immigration. Travel arrangements and arrival details of various different illegal entrants were discussed. The calls also revealed a constant source of money difficulties between the appellant and his contact in Germany. Details of some of the immigrants stopped by the authorities on entry were found in the appellant’s home. Some of them had his telephone numbers with them on arrival, and he was seen to meet others after they entered the country. The prosecution also drew attention to a series of financial transactions by which the appellant transferred money to his associates in Europe and Turkey, which again were referred to in the intercepted telephone conversations.

The appellant was arrested at Heathrow Airport on 9 April 2004. He was present with Surensoy, driving his car, in which nine telephones were bring carried. The appellant said that two of the phones in the centre console were his and that the two in his pockets belonged to his son and his brother, as he was using both. Of the remaining phones four were found in the console, and one in the boot. He was interviewed on the following day. In the presence of a solicitor and an interpreter he presented a prepared statement claiming that he was “100% innocent”, adding that he had been advised by his solicitor not to answer questions and that the written statement had been prepared for him by his solicitor. He was subsequently interviewed on five occasions. Apart from saying that he was not Turkish, but Kurdish, he made no comment.

Before the trial began a number of admissions were made by the appellant. The critical admission was that “Erdogan Ulcay” was known as “Eddie”. It was also admitted that the observations set out in the prosecution schedule represented an accurate record of events, that telephone numbers listed in the prosecution schedule were correctly attributed to the individuals who had the use of those numbers, and further that, the words attributed to the appellant by the prosecution in the course of intercepted calls were spoken by him (although some minor relevant corrections were made during the course of the evidence).

The trial began on 5 September 2005. The appellant’s defence throughout was conducted with appropriate professional skill in the light of his then instructions. Just before the close of the prosecution case, the court was unable to sit for something over a day because of jury difficulties. On the afternoon of Thursday 13^th October, it was anticipated that the Crown’s case was about to close. At 2 o’clock, in the absence of the jury, counsel informed the judge that his client intended to give evidence, but that it would be preferable for his evidence not to start immediately. The Crown’s case concluded at 15:35. After its close, in the presence of the jury, counsel told the court that the appellant wanted to give evidence and intended to do so, but would prefer not to start until the following morning. The judge agreed that this was a reasonable proposal and so the case was adjourned until the following morning.

Next morning, again in the absence of the jury, counsel informed the judge that the appellant no longer wished to give evidence. He said that the appellant had made his decision after a great deal of time had been spent in conference both on Thursday afternoon and Friday morning. The judge checked with counsel whether, given that decision, there was any reason why he should not give the appellant the usual warning in the presence of the jury. Counsel confirmed that there was no reason why he should not. The discussion then moved to witnesses to be called on the appellant’s behalf. The judge decided to allow time for this purpose, because in view of the appellant’s decision not to give evidence, the witnesses were not immediately available, and could not be brought to court for that day. Accordingly the case was adjourned on Friday, and as the judge put it, “very little work was done in front of the jury”. However the judge was determined that the appellant should not be under any pressure, and he made himself available throughout Friday if witness summonses were required. No applications were made.

On Monday 17 October, again in the absence of the jury, the judge was told by counsel that the appellant did not wish to call any of the witnesses he had in mind on Friday, but that he did want to call another witness, who had originally been a prosecution witness, who was neither called nor tendered. The witness was found, but the judge was informed that the witness would not be available to come to court that day. However, if allowed, he would attend first thing on the next day. The judge, showing exemplary patience, agreed. The case was again adjourned. Until this moment the trial had proceeded without undue difficulty. All that now changed, and we must describe subsequent events in greater detail.

On the next day, 18 October, immediately before the appellant’s case was due to be presented to the jury, both counsel and solicitors who had represented him to date applied to the judge to withdraw from the case on the grounds of “professional embarrassment”. At the same time, fresh counsel applied to the judge for a transfer of the representation order under regulation 16(2)(a) of the Criminal Defence Service (General) (Number 2) Regulations 2001.

Subject to the limits of legal professional privilege, Judge Testar rightly required the most detailed possible explanation for these developments. Counsel informed him that the basis on which the appellant’s case had been prepared and presented to the jury to date was that the voice on the intercept tapes attributed to “Eddi” was the appellant’s voice, and that the appellant was “Eddi”. The appellant’s instructions had changed. He now denied that he was Eddi, or that the words spoken by Eddi on the intercept material were his words, or that the voice originally admitted to be his voice was his voice. Indeed the appellant himself, from the dock, twice asserted that the voice was not his voice. He also added that he “definitely” did not want to be represented by his legal team.

The appellant had somehow procured the attendance of a Mr Khan, who stated that he was a legal executive, and appeared before the judge and asked for permission to act as the appellant’s “McKenzie” friend. However the appellant then asked for fresh legal representation. In order to discover more about the appellant’s position, the judge heard submissions from a new barrister, Miss Tayo, whose attendance had also been arranged, again presumably before the appellant’s decision about his legal team had been communicated to the judge. She informed the judge that she was instructed that the appellant wanted the trial to start again, in front of a fresh jury, with fresh legal representation. She continued that he wished to withdraw the admissions he had made thus far, adding that the defence case statement was not his document and that he had signed it in blank without reading it.

In giving his ruling Judge Testar helpfully recorded his own assessment of the way in which the trial had been conducted to date. He took account of what he had observed in court throughout the trial thus far, and in particular events at the close of the prosecution case, and the way in which they unfolded before him. He believed that trial counsel had acted with “energy”. He had seen for himself instructions being taken through the course of the prosecution evidence, with many notes passing backwards and forwards between the appellant and his legal team. He expressed concern “whether it really was necessary for there to have been an independent interpreter acting on behalf of each defendant”, a concern which was subsequently vindicated when the appellant addressed the jury on his own behalf. The judge satisfied himself that the case had been conducted throughout on the basis of the appellant’s instructions and he rejected any suggestion to the contrary. He did not feel it possible to expect counsel and solicitors to continue to act on the appellant’s behalf. They were in “an impossible professional situation”. He believed that the application for fresh representation was motivated by the appellant’s wish to “have a separate trial in front of a fresh jury”. The judge added that although he would allow the application by the existing legal team to withdraw, he reminded the appellant that he could reconsider his position, and that if he did so, and his original solicitors and counsel were prepared to consider theirs, it would not be too late.

The judge proposed to adjourn the case until the following Thursday. He believed that two days would be sufficient to enable fresh counsel to prepare the case. The first question to be addressed was whether the defendant wished to withdraw his decision not to give evidence. If so, the judge intimated that an application would probably be granted. If not, it seemed reasonable to anticipate that any evidence the co-defendants might give would be consistent with their interview accounts of events, and counsel could take instructions about the evidence as and when it was given.

The case was then adjourned to enable Miss Tayo, who stated that she was prepared to act for the defendant, to take further instructions. On Thursday 20^th October, Mr Aina appeared for the defendant, seeking a 4-6 week adjournment. The application was refused, the judge indicating that he would be prepared to grant a short adjournment. He said that he would give counsel the opportunity to spend Friday and the weekend reading the papers, and would then allow the further option of Monday being used for an additional conference with the defendant. If asked he would therefore adjourn the trial until Tuesday, which would be long enough in the circumstances. Having thought carefully about the remaining stages of the trial, and how they could be managed in the interests of justice overall, he concluded that the case would have to proceed whether the defendant was represented or not. Counsel told him that in these circumstances they would be unable to act. Mr Aina informed the judge that he had considered his position, and spoken to senior members of the profession and the Bar Council. The judge suggested that he would adjourn briefly for Mr Aina to take further advice from the Bar Council. This offer was declined. Counsel then left the court. Discussion then took place between the judge and the Crown about the directions to be given to the jury if the defendant was unrepresented, and how to be provided with appropriate assistance. On the following day, Mr Aina and Miss Tayo formally withdrew from the case.

On 24 October, two new counsel appeared on behalf of the appellant. They asked for a 7 day adjournment. The judge refused but agreed to adjourn for a further 3 days. On 26 October counsel reapplied, this time seeking a 2 week adjournment. The judge refused. In his ruling, he summarised all the previous events. The time requested by the two new teams of lawyers would effectively derail the trial. He was in no doubt that what had happened was that the appellant’s case had changed. He asked himself whether it was in the interests of justice for a long trial with more than one defendant to be allowed to be derailed because one of the defendants changed his instructions. “The answer resoundingly, ….. is no”. He addressed the time sought by fresh counsel to prepare the case. He explained that the effect of these applications would be, “effectively, to derail the trial because it would not be practical in front of this jury and out of justice to all of the parties, which includes the prosecution and the other defendants, to carry on this trial against all four defendants if the adjournment that I was being asked for were granted”. He carefully examined the stage which the trial had reached, the way in which the defences had been presented and the trial developed, and examined the submission that it would be “unfair to expect Mr Ulcay firstly to say whether he is going to give evidence in response to that charge and secondly, if he is going to, to give evidence without the substantial adjournments that are sought”. Having done so, he rejected the application for a 2 week adjournment, pointing out that on 24^th October, counsel had sought a much more modest adjournment, and indeed at one stage had said that the order actually made by the judge was generous. He was wholly unpersuaded that a 2 week adjournment was required. If granted, it would mean that 4 weeks had elapsed since the prosecution closed its case, and just over 3 weeks since the original lawyers had withdrawn. The second new team of lawyers thereupon withdrew.

The judge explained to the appellant how he intended to proceed. The trial would continue on Friday 28^th October. In the presence of the jury he would invite him to come into the witness box with an interpreter (although he underlined that he could see no particular language difficulties) and ask whether he intended to give evidence or not. He expected the answer to be clear, “Yes or No”. If the answer was unclear he would work on the basis that the last choice expressed by the appellant represented his position. If witnesses were to be called they had to be available. If he was not giving evidence, they had to be available on Friday.

On 28^th October, in the absence of the jury, the court reassembled. The appellant was unrepresented. Counsel for the Crown and the judge prepared a list of questions on broad topics which the defendant might like to consider dealing with in evidence if he changed his mind and decided to give evidence. The appellant and the interpreter were invited to the witness box. The judge explained that if he wished to give evidence the appellant could do so. He could not give evidence in his closing speech. The appellant was asked whether he had changed his mind and wished to give evidence, because if so, he would be allowed to do so. The judge reminded him that the last thing he knew from original trial counsel was that he did not want to give evidence. The appellant said, more than once, that he did not know what to do, and commented that he did not know how to use his legal rights. He did not know, but he “didn’t think” he wanted to call witnesses.

When the jury returned to court, they were given a proper direction about the circumstances in which the appellant was unrepresented, and told that his fresh lawyers had withdrawn from the case because they said that they did not have sufficient time to prepare it. That was not a matter to be held against the appellant. The trial would continue. In the presence of the jury the appellant was then asked whether he intended to give evidence, with an appropriate warning about the consequences of failing to do so or failing clearly to state what he wished to do. The appellant said that he did not know. The judge said that he would proceed on the basis of his previous election not to give evidence. Asked whether he understood, the appellant replied that he did and when asked whether he wanted to call evidence, he repeated several times that he did not know, before eventually saying that he did not wish to do so.

The defence cases of the other defendants then proceeded in the usual way. The evidence was concluded. On 9^th November counsel and solicitor attended court after some form of contact from the appellant, but no application was made to the judge, and they did not remain.

On 10^th November the appellant asked that many documents from the unused material should be put before the jury as evidence. The application was granted. He applied to postpone making his closing speech until the following Monday. Again, the application was granted. On 15^th November, at his own request speaking in English, Mr Ulcay began to address the jury shortly before lunch. He put a further 120 documents before the jury. During his speech, from time to time he sought to give evidence, and the judge rightly stopped him from doing so. His speech continued throughout the rest of the day, and was eventually concluded shortly before 16.00 hours on the following day. Thereafter the case of the remaining defendants was concluded, and the judge summed up the case. Apart from some token point, no substantial criticism is made of the summing up and we can see nothing in the criticism.

On behalf of the appellant, Mr Aina focused attention on the circumstances in which counsel withdrew from the case, and its consequences. He first submitted that the judge was wrong to allow counsel to withdraw from the case. If that submission failed, he was wrong not to allow new counsel and solicitors more time to read themselves into the case, and to allow them the time they said they needed to do so. Unless he was prepared to do so, and in view of his decision not to allow the time, the judge should have discharged the jury from reaching a verdict in the appellant’s case.

Our attention was drawn to the Convention rights provided by Article 6(3) given “full effect” at common law, summarised by Lord Bingham of Cornhill in R v Jones (Anthony) [2002] 2 CAR 128 at 133, that the defendant should have sufficient opportunity to prepare his defence, and thereafter to defend himself or be represented at trial by a competent lawyer. All this is axiomatic and elementary. It is however equally elementary that the processes designed to ensure the fairness of his trial cannot manipulated or abused by the defendant so as to derail it, and a trial is not to be stigmatised as unfair when the defendant seeking to derail it is prevented from doing so by robust judicial control. Such a defendant must face the self-inflicted consequences of his own actions.

Mr Aina pointed out that in his ruling on 18^th October, the judge did not expressly state that the appellant was seeking to manipulate the process of the court. Indeed he never said so. However we have no hesitation in saying that it is perfectly obvious that this is what the appellant was seeking to do, a conclusion which we would have reached independently of, but which is powerfully fortified by, the factual observations of trial counsel following the appellant’s waiver of privilege. When he was addressing these problems, it was incumbent on the judge to be more reticent. It does not need much imagination to envisage the likely response if he had suggested that the process was being abused or manipulated. It would have formed the basis for an application for a new and separate trial before a new jury and an “unbiased” judge. We shall focus exclusively on the stark realities.

This appellant was provided with competent lawyers at public expense and given ample opportunity for the preparation of his defence. Before trial the issues were carefully addressed by him, and his lawyers, and he was then properly represented by counsel before the jury. It was a constant theme of the pre-trial preparation, and indeed of the discussions in conference while it was in progress, that counsel could only act on the basis of the appellant's instructions. For example, counsel made clear that he would not challenge evidence which the defendant accepted was accurate, and the fact that another co-defendant was challenging the same evidence could not justify a challenge on the appellant's behalf. All this seemed to be clearly understood by the appellant, at any rate until the close of the prosecution case, when his understanding appears to have broken down.

The correct meaning of the phrase “acting on instructions”, as it applies to the professional responsibility of the advocate in any criminal court, is sometimes misunderstood, even by counsel. Neither the client, nor if the advocate is a barrister, his instructing solicitor, is entitled to direct counsel how the case should be conducted. The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client “instructs” him to say. In the forensic process the client’s “instructions” encompass whatever the client facing a criminal charge asserts to be the truth about the facts which bring him or her before the court. Those instructions represent the client’s case, and that is the case which the advocate should advance. In practical terms, that will often mean that prosecution witnesses will be cross-examined on the basis that they are lying or mistaken, or have misunderstand or misinterpreted something said or done by the defendant; however there is almost always some evidence advanced by the prosecution which, on the basis of the client’s instructions, is not in truth in issue at all, either directly, or indirectly. Some decisions, of course, must be made not by the advocate, but by the defendant personally, for example, and pre-eminently, the plea itself, and in the course of the trial, the decision whether or not to give evidence. The advocate must give his best professional advice, leaving the ultimate decision to the client. It is however always improper for the advocate to seek to challenge evidence which is accepted to be true on the basis of the facts agreed or described by the client, merely because the lay-client, or the professional client, wishes him to do so. He may not accept nor act on such instructions.

By the time the trial starts, there should be no confusion about the defendant’s factual account or explanation of every essential issue. There was none here. At the end of the prosecution case when the defendant completely changed his instructions, counsel was presented with an impossible situation. If he could properly do so, of course he had to continue to represent his client, but there are occasions, and this was one of them, when he could not do so. It is for counsel to decide whether, consistent with his obligations to his client, and the court, and the rules of his profession, he is so professionally embarrassed that he cannot continue with the case. If so, again consistent with his duty to the court, but without contravening the legal privilege which underpins his professional relationship with his client, he should inform the court of his situation, providing such explanation as he can, to enable the judge to decide how to proceed. It is difficult to imagine cases in which it would be appropriate for the trial judge to direct counsel that he must continue with a case, or refuse him permission to withdraw on the grounds of professional embarrassment if, having heard counsel explain his position, counsel remains unpersuaded that he may properly continue to act, not least because counsel will almost certainly be better informed than the judge, in particular because there are likely to be considerations which he may be unable to reveal. In essence we agree with the observations of Rose LJ in R v G and B [2004] EWCA 1368 at para 14:

If it needed re-enforcing, this approach is fortified by reference to earlier decisions which examined the responsibilities of counsel where the defendant absconded during the course of the trial. In Jones (No 2) [1972] 56 CAR 413and Shaw[1980] 70 CAR 313 it was recognised that it was the responsibility of counsel, not the judge, to decide whether he could continue to represent the defendant. The same principles apply here. In the extremely unlikely event that the judge has grounds for believing that counsel is not acting in good faith, and in accordance with the obligation owed to the court, counsel’s conduct should be referred to the Bar Council. Plainly where the advocate in question is a solicitor, the reference should be to the Law Society.

The overwhelming majority of defendants in the Crown Court are legally represented at public expense. Our approach to the issue of principle is consistent with the provisions of the Criminal Defence Service (General)(No 2) Regulations 2001, the relevant regulations which apply to the provision of legal representation in criminal cases at public expense. Regulation 16 governs any application for a change of representative. The court may grant or refuse it. The grounds are set out in regulation 16(2) (a)(i) – (iv). One of the consistent requirements of the regulation is that the legal representative should provide details of the nature of the duty which he believes requires him to withdraw from the case, or the nature of the breakdown in the relationship between him and his client. Requirements like these cannot impinge on the obligation of confidentiality between lawyer and client. The lawyer will do his best to comply with the requirement within the limits of the rules governing legal professional privilege, with the result that the court may be less well informed of the pressures on the lawyer to withdraw from the defence or explain the nature of the breakdown. The principle nevertheless remains clear. The court cannot oblige the lawyer to continue to act when he has made a professional judgment that he is obliged, for compelling reasons, to withdraw from the case.

The purpose of this part of the regulations is to ensure that the client does not manipulate the system, seeking to change his lawyers for dubious reasons which include, but are not limited to the fact that the lawyer offers sensible, but disagreeable advice to the client. Claims of a breakdown in the professional relationship between lawyer and client are frequently made by defendants, and they are often utterly spurious. If the judge intends to reject an application for a change of legal representative he may well explain to the defendant that the consequence may be that the case will continue without him being represented at public expense. The simple principle remains that the defendant is not entitled to manipulate the legal aid system and is no more entitled to abuse the process than the prosecution. If he chooses to terminate his lawyer’s retainer for improper motives, the court is not bound to agree to an application for a change of representation. What we find in practice in most cases is that courts faced with this problem are usually prepared to agree to at least one change of representative, provided they are proposed in reasonable time before the trial, and before substantial costs have already been expended in the preparation of the defence case. In the end, however, the ultimate decision for the court is case and fact specific, and it does not follow from the repeated indication of the mantra “loss of confidence” that an application will be granted.

Our approach is entirely consistent with the judgment of Judge Wakerley QC, then the Recorder of Birmingham, dated 10^th July 2001 in R v Ashgar Khan. Addressing the 2001 Regulations. Expressing his concern at the increasing number of applications for transfer of representation in the Crown Court, he observed:

The situation created at this trial involved not only a dramatic change of the appellant’s instructions about critical aspects of the prosecution case when it was coming to its end, but also his publicly expressed assertion that his then trial counsel should cease to act for him. Counsel and solicitors were right to withdraw, and the judge was equally correct not to seek to interfere with their decision.

Mr Aina suggested that the judge could have done more to investigate the defendant’s position directly with him, and in particular whether the defendant “really” wished to change his defence, and whether he “really” wished his counsel and solicitors to withdraw. He relied on R v Al Zubeidi [1999] CLR 906 and R v Jisl & Others Unreported, July 14 2000. Naturally, judges should seek to find a commonsense solution to the kind of problems to which the withdrawal of counsel or a change of instructions can give rise, clearing up possible misunderstandings and, as best they can, introducing the calm and balance which sometimes can evaporate in the forensic process. However these decisions do not support, and it would be surprising if they did support, the essential thrust of Mr Aina’s contention.

It would rarely be right for the trial judge, midway through a trial, to be required to engage in a personal discussion with a defendant about his defence, and whether it was changing, or the state of the professional relationship with his lawyers, and certainly not if satisfied that the defendant was attempting to manipulate the process. All that can be said is that the judge can be relied on to do his best to resolve any problems in the sensitive and delicate situation which has developed, where the potential for subsequent judicial embarrassment is huge. For example, the evidence of the manipulative defendant, if he gives it at trial, under cross-examination, can be anticipated “I only said that because the judge persuaded me to do so” or “The judge would not let me change my mind”, or “The judge ordered me to keep my lawyer when I had lost confidence in him”. And if observations like these were not made in evidence, they would certainly, with an accretion of elegance, form part of grounds against conviction. In our judgment, the judicial investigation suggested by Mr Aina would have been wholly inappropriate, and would almost certainly have achieved the derailment of the trial which the judge was trying so desperately hard to avoid. In our view the judge did all that he reasonably could.

In all these circumstances the judge was entitled to exercise his discretion to refuse the lengthy adjournment sought by counsel. In this particular case we cannot detect any injustice suffered by the appellant, and the trial continued with an unrepresented defendant in circumstances which the appellant himself had procured. The judge’s preferred choice would have been for the defendant to continue to be represented. However he was not prepared to allow the trial to be derailed. A lengthy adjournment would have produced either an inordinate delay in the trial of all the defendants, in which case the jury would have been discharged, and a new trial started again at huge public inconvenience and costs, and possibly prejudice to the remaining defendants as well as the prosecution, or alternatively, that which the appellant was seeking, for the trial of the remaining defendants to continue, with the jury discharged from giving a verdict in his case, and the subsequent trial for the appellant on his own. That would have been contrary to the interests of justice overall. The fact that the judge was prepared to transfer the legal aid certificate does not mean that he was saying that, whatever the consequences to the trial, new representation must be obtained, and that thereafter he would conduct the trial in accordance with whatever applications were made by new counsel. The clear implication of what the judge decided was that whilst he was content for new representation be obtained at public expense and no doubt he hoped that it would, nevertheless, he could not and did not abrogate his responsibilities to the interests of justice in the overall context of the trial and its proper conduct and management.

We must now address the decisions made by the two sets of new lawyers to withdraw, and whether, and if so in what circumstances, counsel and solicitors instructed immediately before the beginning or during the course of the trial may refuse to accept instructions on behalf of the defendant because of difficulties created by judicial case management, in particular in relation to adjournments. These are questions of some importance to the legal professions.

Before we examine the submissions on behalf of the professions, we should emphasise that we immediately recognise the practical difficulties faced by a barrister or solicitor who is invited to take on a defence case at a very late stage, and even more so, if invited to do so half way through a long trial, and we are not unsympathetic to them. However, stripped to essentials, the starting point in any analysis is that the trial judge must decide whether and if so for how long he is prepared to adjourn a trial to accommodate new counsel. The responsibility is vested exclusively in him. We can think of no exceptions. If his decision produces an injustice or deprives the defendant of the fair trial to which he is entitled, the remedy is to be found in this court. The rules of the legal professions must defer to and be consistent with these principles.

Counsel cannot chose his clients, or more accurately, cannot refuse to accept the instructions of a solicitor to act on behalf of an individual because of the nature of the charge he faces, or because of his character and reputation. The “cab-rank rule” is clearly laid down in paragraph 602 of the Code of Conduct, and the self-employed barrister is required in terms to “comply” with it. Specific exceptions are provided. One is professional embarrassment, which may arise if, having regard to his other professional commitments, the barrister will be unable adequately to prepare the case. (Paragraphs 602 and 603(b)). The existing exceptions are not immutable, and may be extended from time to time. However further exceptions have not yet been admitted, either following the disappearance of the advocate’s immunity from suit, or the publicly ventilated difficulties arising in relation to legal aid, or indeed to what Mr Aina described as the “human rights” of the individual barrister, or the proper operation of Article 6 of the European Convention.

The cab-rank rule is essential to the proper administration of justice. It is not without its critics, although criticism is largely directed at the possible evasion of the principle, rather than the principle itself. For example in Arthur Hall& Cov. Simons Lord Steyn, while doubting whether much weight could be placed on the “cab-rank rule” in support of the immunity of the advocate from suit, nevertheless affirmed that it was a “valuable professional rule”: So did Lord Hoffman, who underlined that it was a “valuable professional ethic of the English Bar”. In Ridehalgh v. Horsefield and another [1994] Ch 205, the Court of Appeal quashed the wasted costs order made against counsel in Antonelli and others v. Wade Geary Farr (A Firm) just because the judge overlooked the obligations imposed on counsel by the cab-rank rule. The group of cases under consideration all arose from civil proceedings, but Sir Thomas Bingham MR (as he then was) expressed the hope that the judgment would provide general guidance which would be of value in criminal cases as well. We simply emphasise that if the cab-rank rule creates obligations on counsel in civil proceedings, it does so with yet greater emphasis in criminal proceedings, not least because to a far greater extent than civil proceedings, criminal proceedings involve defendants charged with offences which attract strong public aversion, with the possibility of lengthy prison sentences, when more than ever, the administration of justice requires that the defendant should be properly represented, so allowing the proper exercise of his entitlement at common law and his Convention rights under Article 6, summarised by Lord Bingham in R v Jones (Anthony).

The cab rank rule, and the rationale which supports it, applies whenever, and however late, the barrister is instructed. The absence of what he would regard as sufficient time for the purpose of preparation does not constitute an exception. Paragraph 701(b) (ii) of the Rules directs that a barrister should not undertake any task for which “he does not have adequate time and opportunity to prepare for and perform”. It does not constitute an exception to the cab rank rule. Those exceptions are expressly identified in paragraph 602 where the rule is promulgated. Paragraph 701(b)(ii) is concerned to prevent a barrister from accepting work over and above his existing commitments which he will not be able adequately to prepare and deal with in a professionally competent manner. In our judgment, the barrister faced with the problem which faced new counsel in the present trial was professionally required, in the words of Sir Thomas Bingham in relation to Antonelli “to soldier on and do the best she could”. That exhortation itself conveys a clear acknowledgement of something of the difficulties which inevitably arise. The process would normally encompass discussions with former counsel, taking stock generally, analysis of the issues likely to arise thereafter, and sensible applications to the trial judge for adjournment as and when the need arose. And, perhaps we should add, in circumstances where counsel is soldiering on, doing his or her best, an order for wasted costs, or a successful action for professional negligence against counsel who has taken on this burdensome responsibility in such an awkward situation could not realistically be in contemplation in the absence of some remarkable subsequent developments.

We must finally address the differences in the position of the Bar Council and the Law Society. Whereas it is accepted by Mr Cray that newly instructed counsel should indeed “soldier on” and do the best he can notwithstanding the judge’s decision that the period of adjournment should be significantly shorter than the time sought by counsel, Mr Houlder submitted that this course was inappropriate for and unavailable to a solicitor who would be at risk of contravening Law Society Rules. Mr Houlder pointed out that a solicitor is entitled to decide whether or not to “take on” any particular client. The Rules tell him when he must refuse to act or continue to act. They make no reference to an obligation to act in accordance the cab rank rule which applies to barristers, at any rate when the solicitor is instructing counsel. Once the client is taken on the solicitor must continue to act for him unless some good reason for ceasing to do so emerges.

Mr Houlder drew attention to Rule 2.01(b) which requires the solicitor without sufficient resources or lacking the necessary competence to cease to act, and he pointed out that it is an elementary core duty of the profession that a good standard of service should be provided for the client. Breach of Rule 2 in particular could provide evidence of inadequate professional services, and profession misconduct. The rules do not expressly identify an obligation on the solicitor to continue to instruct counsel who has decided, in accordance with his own professional duties, to soldier on. Mr Houlder suggesteds that where the judge permitted only an adjournment which the solicitor and counsel believed was too short for the purposes of proper preparation of the case, the solicitor found himself within the ambit of Rule 2.01(b). He was obliged to refuse to act, or to cease to act. Those were the rules of the profession, and he courteously reminded us that the court had no power to alter its rules.

If Mr Houlder were correct, therefore, the members of one of the two legal professions, the barrister in the Crown Court is obliged to “soldier on”, while the solicitor is required not to do so, with the result that the barrister would lack the instructions which would enable him to comply with his professional obligations. A moment’s thought suggests that this cannot be right. In our judgment the answer is that Rule 2.01 of the Law Society Rules is not directed to and the solicitor is not prevented from acting nor required to cease to act where an order of the court creates difficulties and makes it that much harder for him to discharge his professional obligations to his client. These difficulties arise because of the judge’s ruling, not the absence of appropriate resources or necessary competence. The ruling, however, is binding on him, as it is on the barrister, and indeed everyone else involved in the conduct of the case. In the situation currently under consideration, the conduct of criminal litigation, the solicitor is an officer of the court. He has an obligation to the court to comply with its orders, and to do his best for his client in the light of those orders. We can see no reason why the professional position of the barrister and solicitor can or should be distinguished. Both owe a duty to the court. Both should comply with it. Both must soldier on. Neither is in breach of the Rules of his profession, nor acting improperly or negligently, if the worse that can be said of him is that he was doing his best to comply with orders of the court which made it impossible or difficult for him to look after the client’s interests, to the standard which, without those difficulties, he would normally be expected to achieve.

Accordingly, if it is thought that Rule 2.01(b) requires the solicitor to refuse or cease to act in circumstances like the present, that perception is wrong. It is not a good reason for ceasing to act for a client that a solicitor disagrees with the decision of the court, even if he believes that the order has caused insuperable difficulties for him, or his client, in the preparation and conduct of the defence. In our judgment the decisions of the new teams of barristers and solicitors were wrong. To the extent that they were acting on the advice of their professional bodies, the advice they received was wrong.

In these circumstances we have re-examined the safety of this conviction. The case against the appellant was overwhelming. The logical explanation for his determination to manipulate the trial process is that he understood perfectly clearly that the prospects of an acquittal were vanishingly slight. So, at the end of the prosecution case, he sought to change his story, to reject the defence case statement, and to withdraw the formal admissions made on his behalf by competent lawyers acting on his instructions. His trial was as fair as he allowed it to be. The conviction is safe. The appeal is dismissed.

There are renewed applications for leave to appeal against sentence by the appellant and Ismail Toygun.

The judge approached his sentencing decision on the basis that the conspirators were involved in a commercial enterprise, operated in a determined and persistent manner. It had nothing to do with assisting friends or relations, the needy or oppressed although the number of people actually trafficked was unknown, the number was substantial and significant. The operation was large.

The judge examined a number of decisions of this court, in the context of legislative increases in the maximum penalty of the offences from 7 years, to 10 years, and then again from 10 to 14 years. He examined the specific aggravating features identified in Van Binh Le [1999] 1CAR (S) 422. With those considerations in mind he considered the individual features of each case. He had no doubt that Ulcay was at the very centre of the conspiracy, and that all the aggravating features identified in Van Binh Le were present. He regarded Ulcay as a manipulative criminal. He considered whether the maximum sentence would be appropriate in Ulcay’s case, but concluded that there probably would be more serious examples of the offence, adding that if so they would probably not be very much more serious. Accordingly the sentence of 12 years imprisonment was imposed.

In relation to Toygun, the judge concluded that he was an active member of the conspiracy, with full knowledge of its working and organisation, and closely involved in the movement of a large number of individuals. He took account of the applicant’s good character, and the medical evidence, which showed that he had undergone a bypass operation shortly before or immediately after his arrest. That represented a continuing concern, although the applicant himself had said in evidence that his health was good.

The submissions on Ulcay’s behalf were based in part on an alleged disparity between him and Surensay, who was sentenced to 10 years imprisonment, together with a contention that there was no evidence of the ill treatment, suffering, physical and mental abuse to which illegal immigrants are sometimes subjected. The appellant had not given evidence, and so had not lied on oath.

The single judge observed:

These observations exactly reflect our own views. The application is dismissed.

In relation to Toygun the single judge observed that the reasons for a severe sentence were explained by the judge in his sentencing remarks. He continued:

Again, we agree. We shall not repeat the same conclusion using different language. This application, too, is dismissed.