Ekaireb, R v

On 19 December 2013 the appellant was convicted of the murder of his wife Li Hua Cao on or about 23 October 2006 at the Central Criminal Court before HHJ Nicholas Cooke QC and a jury. On 7 January 2014 the appellant was sentenced to imprisonment for life with a minimum term of 22 years less 209 days in respect of time spent on curfew. The appellant was ordered to pay £120,815.05 towards the costs of the prosecution.

His application for leave to appeal was made on several grounds. The single judge refused leave on three grounds of appeal and referred two grounds of appeal for consideration by the Full Court. One ground alone was pursued in respect of conviction which relates to the conduct of Michael Wolkind QC. He appeared for the appellant with Michael Skelley, instructed by Michael Kaye. Mr Wolkind was dismissed on 16 December 2013 after he made his closing speech in the circumstances we set out at paragraph 43. It was the case for the appellant that Mr Wolkind’s conduct was incompetent to a degree that rendered the conviction unsafe in accordance with the principles set out by Buxton LJ in R v Day [2003] EWCA Crim 1060.

No criticism was made of junior counsel or of the solicitor. Each was called by the appellant to give evidence. Mr Wolkind provided a statement and was called by the court at the request of both parties and in accordance with the practice of the court he was cross-examined.

Before turning to the specific matters relied on, it is necessary to set out a brief summary of the case against the appellant and his defence.

The appellant was a wealthy property developer and jeweller. His wife had come from China with her brother to Ireland to learn English in about 2003. The wife had stayed on, working as a waitress. The appellant’s evidence was that he met her in a “lap dancing” club in November 2005 in Dublin where she worked. They married in China in July 2006 and went through a second marriage ceremony in England on 4 October 2006. She was pregnant.

They made their home at Flat 9, Pavilion Court, Mount Vernon Estate, Hampstead in North London. The appellant owned a number of other properties nearby. Following the wedding ceremony in England the wife was granted leave to remain in the United Kingdom until 5 October 2008.

The wife had opened a bank account in London on 20 October 2006. It was never used.

In February 2007 Li Bin, the wife’s brother to whom she had last spoken on 23 October 2006, reported to the police that she was missing as none of the family had heard from her at the time of the Chinese New Year. Although the appellant had not contacted police, he cooperated with the police enquiry that followed in 2007. He was spoken to by the police in February, May and August 2007 and gave a significant witness interview in October 2007.

He told them that his wife had left him in mid-November 2006 as she had done on previous occasions. She had not told him where she was going. He believed that she had returned to lap dancing in Dublin. The initial investigation concluded in December 2007 that the wife was “a free spirit … used to travelling … (and) had many short-term relationships.”

A full murder investigation began in February 2012 when she had failed in the intervening years to contact her family. The appellant voluntarily attended a witness interview and answered all questions under caution in 2012. The appellant was charged with his wife’s murder on 7 June 2012 and then again interviewed.

The body of the wife has never been found. There was no forensic evidence of any alleged place or cause of death. There was no forensic evidence at any of the appellant’s properties or in his vehicles. CCTV recordings on the Mount Vernon estate had only been kept for 14 days. No case was made by the prosecution precisely as to how or when she was killed.

The case for the prosecution was based on circumstantial evidence. Many witnesses were called, including the wife’s brother and two sisters, those who had known her in Ireland, members of the Chinese community in London, those who dealt with her in relation to her pregnancy and its possible termination, private investigators, those who worked on the Mount Vernon estate, those who had let Flat 9 Pavilion Court after 2006, those who conducted the missing person inquiries in 2007 and 2012. The prosecution had intended to call a resident of the Mount Vernon estate who had much more direct evidence, but a decision was made not to call her shortly before the trial

In terms of seeking to prove the wife’s death the prosecution relied generally upon:

The prosecution relied upon specific evidence relating to the period before her last telephone call to her brother on 23 October 2006.

The prosecution relied on the following evidence of matters that had occurred on 23 October 2006 as pointing to the killing having occurred then or thereabouts:

The prosecution then relied on events after 23 October 2006 as confirming the appellant had killed her:

The defence case was that the wife was not necessarily dead and, if she were, the appellant was not responsible for her death. His case was that on 23 October 2006, she had told him that she was leaving him because her family needed her. She packed her bags and left the flat. He never saw her again. She was unhappy in her marriage and bored by his life-style in London. He gave evidence to that effect at the trial.

In supporting that case, and responding to the prosecution case he relied on the following:

As to the prosecution’s circumstantial evidence against him relating to matters before 23 October 2006, the appellant’s case was that:

In respect of the evidence of events after 23 October 2006, the appellant maintained:

The trial began on 31 October 2013. The prosecution called 36 witnesses between 6 November 2013 and Wednesday 27 November 2013 when the prosecution closed its case. A submission of no case to answer was made on Friday 29 November 2013. The judge ruled there was a case to answer on Monday 2 December 2013. Mr Wolkind made an opening speech on the morning of Wednesday 4 December 2013 and the appellant was then called. He gave evidence until 10 December 2013 when 2 defence witness were called. The prosecution closing speech took the whole of Wednesday 11 December 2013 and part of the morning of Thursday 12 December 2013. The defence speech began at 12.15 that day; it continued until the end of the day with a further few minutes on Friday 13 December 2013, in circumstances to which we refer at paragraph 43 below. The judge summed up the case over three days, beginning on Friday 13 December 2013 and concluding on Tuesday 17 December 2013. A unanimous verdict of guilty was returned after a retirement of 7 hours.

The law

It was agreed that the law relating to the basis upon which an appeal against conviction grounded upon the incompetence of the advocate should be considered was correctly stated by Buxton LJ in R v Day [2003] EWCA Crim 1060 at paragraph 15:

“While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.”

At paragraph 52 of the decision of this court in R v Bolivar & Lee [2003] EWCA Crim 1167 the then Vice President, Rose LJ, had expressed the test:

“Professionalism requires that a barrister should do his job properly, disregarding such matters. Of course, if his performance on behalf of a client is affected by such matters, different considerations apply. Hence, in our judgment, the test to be applied in relation to a barrister's conduct, is: was it Wednesbury unreasonable and such as to affect the fairness of the trial?”

Both counsel submitted that the formulation was not apposite to the present case because that concerned advocacy affected by the personal circumstances of the barrister. We agree. In any event, the formulation by Buxton LJ is the more modern formulation. It is simpler to apply; it avoids consideration of how Wednesbury unreasonableness is to be applied to the conduct of an advocate; and it is more in accord with the formulation approved in a judgment of the Privy Council in Sankar v. State of Trinidad and Tobago [1995] 1 W.L.R. 194 at 200F–G.

The nature of the criticism

It was the submission made on behalf of the appellant that where the prosecution case was based entirely on circumstantial evidence, the defence depended on competent cross-examination of the witnesses called by the prosecution, competent advice on whether the defendant should give evidence, competent examination of the defendant and a very carefully prepared speech for the defence. We are satisfied that Mr Wolkind told Mr Skelley on a number of occasions that it was a closing speech case.

It was not suggested that Mr Wolkind was incompetent in the following respects:

The case for the appellant presented by Mr Orlando Pownall QC was that Mr Wolkind’s incompetence related to the final speech for the defence and fell into two categories:

Before dealing with the closing speech, it is necessary to set out briefly an account of the instruction of Mr Wolkind and his conduct of the defence during the trial.

The appellant instructed Mr Michael Kaye of Kaye Tesler, Solicitors, from the time of his police interviews to which we have referred. Mr Kaye initially instructed Anthony Arlidge QC with Mr Michael Skelley of 18 Red Lion Court as his junior. As we have noted, he gave evidence before us. This put him in a very difficult position; however he considered it was his duty to give evidence in accordance with the high standards all barristers are expected to observe. He discharged that duty with complete integrity and gave his evidence with great clarity. We accept the entirety of his evidence; therefore where it conflicts with that of other witnesses we accept his account.

After the hearing at which an attempt was made at dismissal in February 2013, the appellant decided to instruct Mr Wolkind. Mr Wolkind had been called to the bar in 1976 and been appointed one of Her Majesty’s Counsel in 1999; he practised at 2 Bedford Row. It appears that the appellant chose Mr Wolkind on the basis of Mr Wolkind’s personal website, “topcriminalqc”, (not that of his chambers) and some recommendations. Mr Skelley continued as the junior.

After Mr Wolkind had been instructed, it is apparent from the e-mail correspondence that has been disclosed that Mr Wolkind had more than one conference with the appellant; it was made clear by Mr Wolkind that he would be concerned with the trial and leave all the early preparation to his junior and his instructing solicitor. It was the evidence of Mr Kaye, which was not disputed by Mr Wolkind, that Mr Wolkind told the appellant that in the period immediately preceding the trial there would be daily conferences.

Position before the trial

The trial was originally scheduled to begin on 7/8 October 2013, but then moved back to 21 October 2013. On 10 October 2013 Mr Wolkind informed his solicitor and the appellant that the first conference would be on 14 October 2013. The conference was brought forward as a result of the reaction of the appellant and his solicitors. In an e-mail of 9 October 2013, Mr Kaye reported that he was very concerned that Mr Wolkind was, “far from up to speed and was not concerned about that being obvious”. There was nothing that called that assessment by an experienced solicitor into question.

The concern, which was discussed between Mr Skelley and Mr Kaye on 12 October 2013, was such that the possibility of dismissing Mr Wolkind was discussed. It was mooted that Mr Skelley should take the case over. Mr Skelley’s view was that it would not be appropriate for him to do so as he had never appeared on his own in a case of this size and complexity.

On 21 October 2013 the trial date was put back to 31 October 2013. Daily conferences were not held in accordance with what Mr Wolkind had said to the appellant; only one is recorded. Mr Wolkind’s diary for that period lists several conferences in other matters as well as one appearance in another matter.

The course of the prosecution case

On 31 October 2013, the trial was called on. An application was made before the case was opened to exclude the evidence of a psychologist, Judith Halperin whom the prosecution sought to call. The application was prepared entirely by junior counsel. We are satisfied that Mr Wolkind had not read the material. He simply, though competently, presented what his junior counsel had prepared for him. The application was successful.

As we have set out, there was no complaint that Mr Wolkind had failed to deal with the correct points on cross-examination. From the evidence that we have received it was clear that he relied very significantly on his junior for the points that were to be made. When the appellant asked Mr Wolkind why he had not asked a particular question or taken a certain approach, he would explain to the appellant that it was a closing speech case. Some evidence was given that pointed to Mr Wolkind’s lack of preparation for cross-examination; for example in the cross-examination of PC Vina Barrett a previous conviction of the appellant for possession of an offensive weapon was referred to when it should not have been. That resulted from Mr Wolkind asking the officer to read out parts of a document including that which contained the reference to the previous conviction, though it was wholly unnecessary for that particular passage to be read out. It was said that Mr Wolkind had not properly read the document, but this point was not put to Mr Wolkind.

It is, in our view, unnecessary for us to make any findings in relation to his state of preparation for the cross-examination of the prosecution witnesses; that is both because there was no criticism of the cross examination and for the reasons given at paragraph 53 below.

As we have set out at paragraph 21 above, the prosecution closed its case on Wednesday 27 November 2013. There was then a day on which the court did not sit before the submission of no case to answer was to be made. Mr Skelley, as the junior, was engaged with Mr Tom Little, the junior for the prosecution, on that day in trying to agree the proposed agreed facts. Mr Skelley therefore told Mr Wolkind that he could not assist in preparing the submission of no case to answer. It appears from Mr Wolkind’s diary that he was engaged in another case in this court on that morning but in the afternoon there was a conference in the present case. That was concerned with the question as to whether the appellant should give evidence. There was no significant discussion of the submission of no case to answer.

Mr Altman for the prosecution provided to the court a detailed 17 page submission as to why there was a case to answer. The written submission provided by Mr Wolkind to the judge was nine paragraphs long, extending over a page and a half. It was prefaced by the following:

“This document is written and provided to the court after receiving the prosecution’s submissions. The defence had prepared their own document but consider it easier now to respond to the prosecution.”

Mr Wolkind told us that the document described as “their own document” had been prepared by him in manuscript; a copy was no longer available. We were told by Mr Wolkind that he considered that his nine paragraph document was sufficient and that he made such arguments as could be made orally. Although concise submissions are to be encouraged, we are entirely satisfied that the document put before the court was lamentable. It was a wholly inadequate response to what had been prepared on behalf of the prosecution; it was not the submission required to support the argument in a case where the evidence was entirely circumstantial. It was not just an error of judgment, but represented a serious failure on the part of Mr Wolkind. In fact, in determining this appeal nothing turns on this serious failure, since it is now rightly conceded that there was a case to answer, as the judge found.

On 4 December 2013, Mr Wolkind opened the defence case. The speech was in large part a criticism of the prosecution case and entirely unfocussed. It also contained unwarranted and unjustifiable specific criticism of both Mr Altman and Mr Little. We return to this at paragraphs 59 and following. However, we need not consider the speech further as it is not said to be incompetent.

Mr Wolkind told us that it was a difficult decision as to whether to call the appellant; he was worried as to the impression he would make. We understood and appreciated that concern. Indeed that risk eventuated. Mr Wolkind said he had to fight hard to “rescue him”. As we have set out at paragraph 21, the appellant commenced his evidence after the conclusion of the opening speech for the defence. Mr Skelley told us that he felt by that time Mr Wolkind was engaged in the case; he had therefore commented to Mr Wolkind that, “You have had a good day at the office”. No criticism is, as we have said, made of the examination of the appellant.

Evidence was given to us by Mr Skelley that during the cross examination Mr Wolkind, whilst half listening to the evidence, was sending e-mails on other cases.

Before turning to the closing speech, it is necessary to refer to Mr Wolkind’s conduct during the summing up. Very little of the summing up was delivered on Friday 13 December 2013, as a juror became ill. When the judge resumed on Monday 16 December 2013, Mr Wolkind arrived part of the way through the morning and then left during the course of the afternoon. The appellant decided in those circumstances to terminate his instructions to Mr Wolkind and to continue with Mr Skelley alone. Mr Wolkind told us that he had been late because of a delay in a video conference he had arranged, according to his diary, for 10:00 for another case, where the defendant was held in prison. His diary showed that at 15:00 he had a meeting in another case. The consequence of Mr Wolkind’s dismissal was that he was not present on the following day when there was an exchange between Mr Altman and the judge about the answers of the defence to the detailed case made by the prosecution. We refer to this at paragraph 48 below.

The instructions not to complete the closing speech

As we have set out at paragraph 21 above, the defence speech began at 12:15 on Thursday12 December 2013. Mr Wolkind had had no real discussion with his junior and no discussion with his solicitor or the appellant before the speech. In consequence, Mr Kaye spoke to Mr Wolkind at 13:55 and asked him not to close his speech that day. Mr Wolkind did not reply but Mr Kaye looked on this as an instruction and assumed Mr Wolkind would not finish that afternoon. When the speech came to an end, towards the close of the day, Mr Kaye, as he told us, was very angry. He spoke to Mr Wolkind who agreed that he would say a little more on the following morning. He did so.

Although this was a matter of complaint against Mr Wolkind, it was misconceived. Mr Wolkind was under no duty to act on instructions of this kind. In R v Farooqi [2014] 1 Crim App R 8, [2013] EWCA Crim 1649, Lord Judge CJ in giving the judgment of the court set out the duties of the advocate in relation to instructions given by a defendant in a trial at paragraphs 107 to 109. He made clear that the conduct of the case was the responsibility of the trial advocate. His instructions were contained in the defendant’s account of what had happened; it was the advocate alone who remained responsible for the forensic decisions and strategy.

“That is the foundation for the right to appear as an advocate, with the privileges and responsibilities of advocates and as an advocate, burdened with twin responsibilities, both to the client and to the court.”

There is, in our view therefore, no basis upon which an advocate can be instructed as to what to say in his closing speech by his solicitor or by his client or when to conclude it. That is the advocate’s responsibility. Thus, although we understand the concern of Mr Kaye and the appellant, no criticism can attach to Mr Wolkind for disregarding what was said as to the time when he should conclude his speech. That was a matter for his judgment, bearing in mind his duties to the appellant and to the court. That was, however, a very minor part of the complaint against the way in which Mr Wolkind had dealt with the closing speech.

The case made on appeal about the speech

We have referred at paragraph 26 to the case made by Mr Pownall on behalf of the appellant. It was further submitted that during the trial Mr Wolkind had led the appellant, Mr Kaye and Mr Skelley to believe that he had been “harvesting” or “gathering” points to make in his closing speech and that he would make a detailed closing speech in rebuttal of the detailed closing speech that had been delivered by Mr Altman. The complaint was that Mr Wolkind had not made a closing speech which would rebut the points that had been made by the prosecution and explain the case properly to the jury. As was put in advice to the appellant on 8 January 2014:

“We agree that he had all of the ammunition but then did not fire it.”

It was submitted that the incompetent nature of the defence closing speech had clearly caused the judge concern:

The way the speech was prepared

Mr Wolkind told us that he had, as he had explained to the appellant (as we have set out at paragraph 47 above), been keeping a list of points. From notes provided to us by Mr Wolkind it appears that he had prepared on his computer a first draft on Tuesday 10 December 2013 at 20.38, comprising two pages and a further draft of seven pages at 20:33 on Wednesday 11 December 2013. The final draft headed “Closing speech at 1.24” was timed at 08:41 on Thursday 12 December 2013. At 08:47 on that day Mr Wolkind sent to Mr Skelley an e-mail:

“A man who worked till after 2 and restarted at 6 will be a little late arriving. If I am not in the building by close to 10 please tell the court I am on my way and should be there by 10.20.”

The court was due to sit at 10:15 and did indeed start at 10:15.

It was Mr Skelley’s evidence that he prepared and provided to Mr Wolkind three documents entitled “Closing speech points”. He was not convinced Mr Wolkind was developing the points that needed to be made and had not been invited by Mr Wolkind to discuss the speech or to contribute to its drafting; he had told Mr Skelley it was his speech The first of the three documents, provided on 10 December at 23:31, was a document of some 12 pages. The second a document of two pages and the third a document of five pages were sent on 11 December 2013. These three documents contained detailed points in relation to the circumstantial evidence in the case.

An analysis of the speech

Mr Altman QC who appeared on the appeal for the prosecution helpfully provided us with a detailed analysis of Mr Wolkind’s closing speech. From that analysis and our detailed consideration of the closing speech, the following emerges:

We have asked ourselves the question, therefore, whether the speech can be described having reached a level of incompetence that called into question the safety of the conviction or the fairness of the trial. We cannot so describe it. Although it will be for others to consider wider issues, it was a speech that covered the points and it had a structure, however ill-judged the themes and the structure might have been. We accept as amply justified the criticism made by Mr Pownall that it was ill-judged, patronising and contained inappropriate attempts at humour. It also contained observations about prosecuting counsel which, as Mr Skelley told us, were completely unprofessional; no advocate should have put these observations into a speech, as we shall observe at paragraphs 59 and following below. However it did not reach a level of incompetence that called into question the fairness of the trial or safety of the conviction.

As we have reached that view, it would not be appropriate for us to make more general findings in relation to Mr Wolkind’s lack of preparation and conduct of the case. That must be a matter for the Bar Standards Board to which we direct the matter be referred.

Although we grant leave to appeal against conviction, we are satisfied that the sole ground on which it is advanced fails. We have considered the entirety of the evidence and see no reason to doubt the safety of the conviction. There were very telling points against the appellant such as the inherent unlikelihood of the wife leaving the flat on an October night with a suitcase given the location of the flat in Hampstead, the failure of the appellant to make inquiries about his wife though she was bearing his child, the refurbishment of the flat and the finding of the ring.

We refuse leave to appeal against the minimum term of 22 years imposed. The judge took the correct starting point of 15 years. The concealment of the body in such a way that it has never been found and the fact that his wife was pregnant to his knowledge when he murdered her are both seriously aggravating factors that justified the significant increase above the minimum term.

Websites

Our attention was drawn to Mr Wolkind’s personal website. We were surprised at its content and tone. However whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration.

Carrying out other work

We have had to make some express findings in relation to other work that Mr Wolkind was carrying out during this very complex murder trial. The fact that Mr Wolkind was doing so plainly caused the appellant very considerable concern and led to his dismissal of Mr Wolkind. However, it would not be right for us to make any observations. The terms upon which any barrister, particularly one of Her Majesty’s counsel, is free to engage on other work during the conduct of a case is a matter for the Bar Standards Board, subject to an overriding duty to the court in respect of the case before the court. We therefore direct that general issue be referred to the Bar Standards Board for their consideration.

Defence closing speeches

Unsurprisingly we were not referred to any decided case in which an incompetent defence speech has provided the grounds for a successful appeal. As was demonstrated in Farooqi the trial judge has the responsibility and ample scope to ensure that a defendant's case is accurately before the jury. That task may involve correcting or amplifying a closing speech. Should that prove impossible it may, in an extreme case, be necessary to discharge the jury. In the present case no such criticism has or can be made.

Personal criticism of opposing advocates in addresses to the jury

Finally, there is one feature of the conduct of this case which judges must ensure ceases immediately and not be repeated in any case. That conduct is making in an address to the jury personal criticism of opposing advocates in contradistinction to criticism of the prosecution case.

We were told that the practice of making personal criticism of prosecution advocates has become a feature of some addresses to the jury made by defence advocates. In this case the personal criticism of Mr Altman and Mr Little by Mr Wolkind should not have been made in his addresses to the jury.

If any advocate has a criticism of the personal conduct of an opposing advocate that is a matter that should be raised before the judge who will deal with it then and there, though, in what we hope would be the rarest of circumstances, it could be referred to the professional disciplinary body.

The conduct of a trial before a jury requires proper and professional conduct by all advocates in speeches to the jury. As any personal criticism of the conduct of an opposing advocate is a matter for the judge, it can form no proper part of an address to a jury. The regrettable departure from proper standards of advocacy by making personal criticisms of advocates of an opposing party in an address to the jury must therefore cease. No court will tolerate its continuance.