A solicitor’s client care “deficiencies” did not undermine the safety of his client’s conviction, which saw him jailed for 18 years, the Court of Appeal has held.
Counsel’s failure to obtain the client’s written endorsement of his decision not to give evidence did not prove that it did not happen, Lady Justice Macur also said.
In December 2018 at Birmingham Crown Court, Rashad Mahmood and his co-accused were convicted of conspiracy to fraudulently evade the prohibition on the importation of a controlled drug (diamorphine). Each was sentenced to 18 years imprisonment.
Mr Mahmood’s solicitor was Basharat Hussein, director of Birmingham law firm Hussein Solicitors, whose alleged failure to adequately prepare the case was one of the three grounds of appeal.
Macur LJ said Mr Mahmood had a “litany of complaints” against the solicitor, “some of which are entirely irrelevant to the application although not to his sense of grievance and which may feature in any referral he may decide to make to the Solicitors Regulatory Authority”.
She continued: “However, having heard the evidence of Mr Hussein, we are in no doubt that the applicant’s dissatisfaction with the client care afforded by his solicitor was amply justified.
“Mr Hussein candidly admitted that he had not attended upon the applicant after 22 January 2018 until 18 November 2018, and then only after the insistence of a delegation of the applicant’s family and friends who had been endeavouring to secure his attention by phone calls and mobile messages.
“It was clear that Mr Hussein had not prepared a proof of evidence until November 2018, despite the prospective earlier trial date in April 2018, which was not aborted until days before.
“He had been late in actioning the instruction of expert evidence, and then had not ‘followed through’ with the further information that had been required.”
But the court said that none of these “deficiencies in the client care” undermined counsel’s conduct of the trial or went to the safety of the conviction – the proof of evidence was available to trial counsel and a defence statement was served, for example.
Neither defendant gave evidence at the trial but the co-accused signed an endorsement indicating that he had been advised of his ability to give evidence, had been informed that an adverse interference could be drawn if he did not, but had decided of his own free will not to do so.
There was no such endorsement available from Mr Mahmood, who argued that he was given no proper advice on giving evidence. His barristers – Jerome Lynch KC leading Ayoub Khan – insisted that they discussed it fully.
Mr Khan said his usual practice was to write out a standard form endorsement in his counsel’s notebook for the defendant to sign. He said he thought he had done so in this case but could not find the notebook.
Mr Lynch said he expected his junior counsel to prepare a written endorsement as a matter of best practice.
While Macur J said the court was not satisfied that a written endorsement was made here, it unhesitatingly accepted the barristers’ evidence of the advice they provided.
Both counsel were “credible and straightforward witnesses who had some actual recollection of the case”. Mr Lynch’s confirmation to the trial judge that he had advised Mr Mahmood about the risks of not taking the stand was “compelling evidence”.
She added: “What is more, the applicant’s evidence in cross-examination tended to corroborate what they said.”
The final ground of appeal concerned a single sentence in Mr Lynch’s closing speech about a so-called ‘dirty’ mobile phone (one connected to the drugs), when he said: “We’re not saying that he didn’t pick up the phone and then use it to call Pakistan or something like that.”
Mr Mahmood said this was contrary to instructions and “catastrophic” to his case.
Macur LJ said: “Mr Lynch accepted that the applicant had always sought to dissociate himself from the phone but said it appeared from the discussions he had with the applicant that it ‘might have been possible’ that he had picked up the phone and made an ‘innocent’ call to Pakistan, and that he had floated the possibility with the applicant that it would be appropriate to make this concession in the closing speech to ‘confess and avoid’.
“He had no note of it, and was not now certain that he had specific instructions to do so, but he would not have made the ‘contentious’ concession in the closing speech unless he had discussed it first with the applicant.”
Nonetheless, Macur LJ said the court was “satisfied that he did discuss this matter with the applicant before he made his closing speech”.
It could be regarded as a throw-away comment “amid attempts to persuade the jury of the possibility of coincidence and innocent explanation”, she added.
The court concluded there was no substantive merit in any ground of appeal. There was a very strong prosecution case and Mr Mahmood’s conviction was “not arguably unsafe”.