[1]Court of Appeal: Barrister’s actions caused significant harm
A barrister who recklessly misled the Court of Appeal – and made “serious and misconceived allegations” against other lawyers in doing so – has been suspended for a year.
A Bar disciplinary tribunal said that David Owusu-Yianoma had shown a “lack of insight” into the consequences of his actions.
In June 2019, Mr Owusu-Yianoma completed and submitted a form NG – notice of appeal against conviction – together with advice on the grounds of appeal which contained information that was incorrect and “recklessly misleading”, the tribunal found.
This was because he wrongly indicated on the form that he had complied with his McCook obligations.
These require fresh appeal counsel to approach the solicitors and/or counsel who had acted at trial to ensure that the factual basis on which the appeal was advanced was correct and/or to take steps to obtain objective and independent evidence in support of the grounds of appeal.
The tribunal found that Mr Owusu-Yianoma had not personally checked the guidance in R v McCook. It was “unreasonable of him to have taken that risk”.
He sought to engage a non-legally qualified third party to ask the previous solicitors about the trial and did not directly contact them or the trial counsel “to ascertain the significance of the allegations made against them in the appeal documentation”.
His oral evidence was that it was “preferable” to have an appellate judge decide the merits or otherwise of the appeal, irrespective of the McCook guidance, and that he would still have submitted the grounds of appeal even if the trial solicitors had refuted the factual matrix underlying them.
The tribunal said that this approach was “wholly misconceived”.
The barrister’s actions failed to observe his duty to the court and diminished public trust, it said.
But, while this was reckless, the tribunal said it did not consider there was sufficient evidence to justify a finding of dishonesty “having regard to his state of mind at the time he ticked the box, despite finding significant and troubling inconsistencies in the presentation of his oral evidence at the hearing”.
As an experienced criminal specialist, Mr Owusu-Yianoma “ought to have known the importance of knowing the law and specifically should have checked the law and guidance specified in form NG in preparation of a criminal appeal where he was acting as fresh counsel”, it added.
A number of agencies, individuals and organisations were “adversely affected” by his misconduct, the tribunal went on, and the harm was “significant”.
“The appellate judge had to consider an unmeritorious appeal and the Court of Appeal had to investigate whether the factual basis of the appeal was accurate.
“The appeal notice and the grounds of appeal included serious and misconceived allegations against other legal professionals which required them to set out their response to the points raised in the appeal documents.”
Finding the misconduct fell into the “upper range” of seriousness, the tribunal also said Mr Owusu-Yianoma’s evidence indicated “a lack of insight into his culpability and the consequences of his actions”.
He had apologised, however, and provided positive testimonials. The tribunal also took into account his previous good character and that he was facing “difficult and challenging personal circumstances” at the time.
It added: “The tribunal appreciated the impact which the professional misconduct had had on Mr Owusu-Yianoma and recognised that he had taken steps to educate himself in relation to the conduct of the appeal process.”
It decided to suspend him for 12 months on each of the three counts found proven, to run concurrently, and ordered him to pay costs of £5,000.