CA refers barrister to regulator over clash with judge

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Court of Appeal: judges have power to require lawyers’ attendance

The Court of Appeal (CA) has referred the conduct of a well-known criminal barrister to the Bar Standards Board, hitting out at his “breathtaking arrogance” despite overturning a contempt finding made against him.

Ian West of Fountain Chambers in Middlesbrough was fined £500 by HHJ Kelson at Durham Crown Court for failing to appear at a hearing.

The CA made it clear that judges have the power to order advocates’ attendance at court.

The problem between HHJ Kelson and Mr West – who was representing the defendant over charges of theft and perverting the course of justice – occurred at a preliminary hearing in April. The judge believed that to make the hearing effective, Mr West needed to have more time with his client to discuss particular aspects of the evidence.

The CA said the judge subsequently explained that his practice is often to adjourn preliminary hearings where he feels that further time focusing on the state of the evidence might, in fact, result in an admission.

The barrister disagreed that he needed more time, but following what the CA described as a “heated exchange” – which led HHJ Kelson to call Mr West “impertinent” – the judge nonetheless adjourned the hearing until after lunch to allow for this. When the case resumed, Mr West had left the building.

In a hearing the following day, the judge described this behaviour as “monstrous”, and also brushed aside Mr West’s demand for an apology. At a subsequent hearing HHJ Kelson fined Mr West £500 for contempt over the failure to attend court despite being ordered to do so.

Yesterday the CA – with Sir Brian Leveson, president of the Queen’s Bench Division, giving the lead judgment – overturned the finding because HHJ Kelson had not followed the procedure set out in the Criminal Procedure Rules to deal with contempt.

But it also ruled that the courts do have the power to require lawyers to be present in court. “There are many entirely appropriate reasons why a representative will not be able to attend court: other professional commitments, ill-health, personal tragedy are but a few and courts regularly make every allowance for these,” Sir Brian said.

“That is not the same, however, as wilful and deliberate disobedience of an order of the court as an act of defiance, and so that the position is beyond doubt, we have no doubt whatsoever that this is the accurate description of the appellant’s conduct on this occasion.”

The CA was keen to stress that its decision to set aside the finding of contempt should not be seen as an endorsement of Mr West’s behaviour.

“On the contrary, we repeat the descriptions which we have used in this judgment. Mr West’s conduct constituted wilful and deliberate disobedience of an order of the court as an act of defiance which is serious misconduct of a type that is wholly inimical to the proper discharge of his professional duties and, furthermore, in total disregard of his duty to the court.

“He has shown breathtaking arrogance and his demand that the judge apologise to him was more than merely impertinent. This conduct should be considered by the Bar Standards Board to which we direct that a copy of this judgment should be sent.”

The CA noted that Mr West “was not prepared to acknowledge that he had behaved other than impeccably: he was not discourteous. The highest that Mr Cox [his counsel] put it, on instructions, was that the appellant’s style was ‘somewhat laconic and terse'”.

Mr West is a former member of the Bar Council and earlier this year resigned from the executive committee of the Criminal Bar Association in protest at the legal aid deal it did with the government.

In a statement, Mr West said: “Whilst I am obviously pleased that my appeal has been allowed and the finding that I am in contempt of court has been quashed, I am disappointed that the court saw fit to criticise my professional conduct.

“The active, some might say enthusiastic, case management of criminal cases by judges causes difficult problems for defence advocates seeking to balance their duty to their clients with their duty to the court. I will continue to try to achieve that balance.”