Court of Appeal: no room for “grandiloquent, rhetorical” advocacy in modern trials


Davis LJ: “rambling and eccentric” letter

The “grandiloquent, rhetorical and at times almost facetious” advocacy style of a criminal defence barrister has no place in modern trials, the Court of Appeal has said.

Lord Justice Davis said David Leathley had submitted a “rambling and eccentric” letter defending his approach, after he was accused by counsel for Caroline Foxley, convicted of making false benefit claims, of “wholly incompetent and misguided” conduct of the case.

“Mr Leathley certainly appears to take a considerable degree of satisfaction in having a style all of his own,” Davis LJ said.

“In fairness to him, he candidly and openly accepts that he ‘lost’ the jury in this particular case. He adds that he was not used to appearing in front of juries in the Gloucester Crown Court.

“He says that he took the view that the jury had taken against the appellant and had taken against him, Mr Leathley, even more.”

Davis LJ went on: “Our view is that the grandiloquent, rhetorical and at times almost facetious style of Mr Leathley as adopted by him in this case should find no room in any modern criminal trial, let alone this one.

“The defence case here surely best called for a measured and even-handed approach in order to enhance such credibility as it could muster.”

Delivering judgment in R v Foxley [2016] EWCA Crim 798, Davis LJ said Mr Leathley’s closing speech at the trial, described by counsel for Ms Foxley as “put in a grossly hyperbolical as well as in an unfocused and unstructured way”, led to a complaint from a juror.

“First, in the course of certain illustration which Mr Leathley had sought to make in his speech, he had made reference to the ‘Spastics Society’. That is a name which has not officially been used for over 20 years and is capable, in some quarters at least, of giving rise to offence; and apparently it did give rise to some degree of offence so far as this particular juror was concerned (Mr Leathley in due course apologised for this).

“But in addition, the jury note also complained that Mr Leathley’s ‘ramblings have been a dreadful waste of court time’.”

Davis LJ quoted sections of Mr Leathley’s hour-long closing speech to illustrate the complaints of Ms Foxley’s counsel, such as: “So in fact she is a loving mother on the bare bones of her backside, who is keeping her promise to pay and put her children’s education first.

“If we set up an educational trust with Caroline Ann Foxley as a trustee and paid some highfalutin’ lawyer in the City of London to execute the deed of trust, we could do no better. She does not need the fetters of a legal document.

“Caroline Ann Foxley is on autopilot. She is carrying out her mission, and it doesn’t matter what happens to her, so long as her children and the pledge to the doctor have been honoured. You see that is the bare beginnings of a rather noble individual, not the demonised witch, but that is nobility. If she is mistaken, that is a problem, but if in her own mind she thinks that that is acceptable, she is not guilty…”

However, despite the criticisms, Davis LJ said the Court of Appeal was “simply not persuaded that Mr Leathley’s conduct was of an order such as to cause the resulting convictions to be unsafe or the trial unfair.”

He said that despite the “ill-judged and ill-advised” mode of language in the closing speech, it did address all “the salient defence points”, including Ms Foxley’s good character, difficult financial and emotional position and desire to support her children.

Davis LJ said the jury’s note “evinced no deflection away from the key issue in the case”, which was to assess the evidence.

“Our overall conclusion, therefore, is that the conduct of the defence case by Mr Leathley was not of an order such as to cause the convictions to be unsafe. We accordingly refuse this appeal on this ground.”

The Court of Appeal rejected a further challenge from Ms Foxley to the safety of an additional conviction for dishonestly failing to give notification of a change in circumstances.

Ms Foxley’s appeal was dismissed. Mr Justice Gilbart and Judge Stokes QC, the Recorder of Nottingham, contributed to the judgment.



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