An experienced defence barrister who joked that he would not get paid if his case was discontinued, secretly drafted and uploaded an indictment to stop that happening.
Jonathan James Turner, who was called in 1999, was suspended for six months by a Bar disciplinary tribunal after he admitted nine charges relating to two different cases where he had acted for a defendant.
These included recklessly misleading the court, the prosecution and the Legal Aid Agency (LAA) and carrying out a reserved legal activity when he was not entitled to.
In both cases, two years apart, he uploaded documents onto the Crown Court’s Digital Case System (DCS) – in one case an indictment and in another a notice of additional evidence – when only the prosecution could do so.
In the first, the prosecuting counsel told Mr Turner before the judge was in court that he would offer no evidence. This could only be done if there was an indictment on the DCS.
The Crown Court recording system caught Mr Turner replying that there was an indictment and, to laughter in the background, saying “I don’t get paid if there’s a discontinuance”.
He alone knew about the indictment because he had drafted it that morning and uploaded it to the DCS. This was “not only something he should not have done as defence counsel but was something that he was not allowed to do as counsel by the relevant regulations”, the tribunal said.
The defendants pleaded not guilty, no evidence was offered and Mr Turner “became entitled to the fee appropriate to that outcome, rather than being unpaid, as he would have been if there had been a discontinuance”.
The circuit judge was concerned that the decision to abandon the case had been taken so late that an indictment had been drafted. She asked for a written explanation from the Crown Prosecution Service (CPS).
The tribunal noted that Mr Turner, who “had an obvious duty to the court to say what he had done, said nothing”, despite knowing that “completely innocent parties were potentially going to be criticised for something he had brought about”.
Once what had happened became clear, the judge ordered the matter to be listed before her in February 2020. Mr Turner did not attend but submitted a written note in which he claimed he had told the prosecutor that he had put a draft indictment on the system.
But the recording, the tribunal noted, proved that “he said no such thing”.
The judge ordered an investigation but the pandemic “put a halt to any further enquiry”.
In the other incident, in June 2018, Mr Turner uploaded onto the DCS a notice of additional evidence exhibiting the raw data – amounting to thousands of pages – behind three text messages that were served evidence.
He accepted that anyone looking at the DCS at Bradford Crown Court would be “misled into believing” that it had been uploaded by the CPS.
If the additional material had been genuinely served, it would “greatly affect the page count of documents served” and be “of considerable relevance to the fees that the trial would command”, the tribunal said.
It continued: “Mr Turner now accepts that, whilst he though he mentioned what he had done to [the prosecuting counsel], she cannot have heard him. She is adamant that he did not.” The case eventually ended without the need for a trial.
Mr Turner told the tribunal that, whilst he went about things “the wrong way”, he believed it would have happened anyway as it was the practice at Bradford to insist the prosecution serve the whole of the underlying data if it wanted to adduce particular examples of texts. He had appeared in another case that year where this happened.
The tribunal accepted that this was the barrister’s view, but it was “reckless” of him to do what he did and run the risk of misleading the court and the LAA.
Mr Turner then submitted his fee claim, seeking payment on the basis the notice was included in the page count. When this part of his claim was rejected by the LAA, he “persisted”, arguing that it was “pivotal to the prosecution case”, which suggested it had been uploaded by the prosecution.
He appealed against the LAA determination in August 2018 before withdrawing this part of his claim in November 2018, telling the LAA that the prosecution intended that the notice be served but “there was no CPS caseworker available and so he did it himself, bringing that fact to the attention of prosecuting counsel”.
The tribunal said not one of these assertions was true and “we must conclude that, in writing what he did, Mr Turner had a reckless disregard to whether they were true”.
If the notice had been accepted by the LAA as part of the fee claim, Mr Turner could have earned a further £5,000.
The tribunal emphasised that it was not dealing with “deliberate dishonesty”, as that the Bar Standards Board had accepted that the matters involved reckless professional misconduct.
It said Mr Turner “fell far short of the conduct required of any member of the Bar, let alone one of his seniority and experience. In fairness to him, he has accepted that, and we give him credit for his acceptance”.
While the tribunal was “prepared to accept that the likelihood of any repetition of his misconduct is slight”, it said it had no option but to suspend him: “These repeated examples of recklessness – there would appear to be seven of them – cannot adequately be reflected by a financial penalty.”
Mr Turner was suspended for six months of each charge, to run concurrently, and ordered to pay £4,680 in costs.