A defence lawyer who testifies against his own client

R v AC

Speaking note for the Applicant – Closing
11th and 12th December 2019
Permission Hearing

1. The Prosecution’s case is misconceived on several key points:
   
   1. Unjustified reliance on the forceful opinions of Mr Jeremy Dein QC and Mr Phil Smith:
      
      1. Their evidence was deeply unsatisfactory and not of a kind to be expected from professional witnesses, attending to calmly and dispassionately assist the court.
      2. Characterised by a dismissive, arrogant, evasive, confrontational, adversarial, inconsistent, vague, unreliable and overly defensive approach throughout.
      3. Mr Jeremy Dein in particular appeared intent on defending himself and Mr Phil Smith (a friend) at all costs, and going on the attack, rather than answering questions in a straightforward and objective manner. That despite him having shown a disdain for any form of reading or preparation before he wrote letters or gave evidence (note letter claiming a part of the Cree instruction).
      4. Mr Smith equally descended into advocacy and case theory rather than answering questions. Dismissive of information about potential unfitness, a few days before the trial, because it “only” came from a prison psychiatric nurse, yet he had 100% faith in his own diagnostic abilities. His approach to the instruction of experts was woeful.
      5. The irony of their approach is that the Notice of Appeal itself does not make explicit criticism of either of them. It simply draws attention to the contemporaneous records, sets them in the context of ____________________________ subsequent medical history and the expert evidence, and identify features that we submit should lead the court to the conclusion that the convictions are unsafe.
      6. The approach taken by the witnesses however is indicative of a mindset amongst a certain variety / generation of criminal lawyer, perhaps of lawyers generally, that they are better placed than anyone to judge anything to do with the case, even matters of axiomatic professional medical expertise.
      7. Their evidence was characteristic of an era with notions of mental health from which we clearly have yet to fully emerge – PS used the word “mad” in a client conference to describe a potential view of AC’s condition and JDQC considered prolonged episodes of delusion, paranoia, severe psychotic depression and suicide attempts as “having a bad time.” Those attitudes are telling.
      8. We say that their evidence, individually and collectively, does not support the Prosecution’s case at all and in many material ways undermines it by demonstrating their enduring and worrying prejudices on matters of mental health symptoms and assessment. On the question of AC’s mental health in 2013 they have no credibility at all and their attitudes, then and yesterday, were anachronistic and dangerous.
   2. Fundamental misunderstanding of the nature and effect of delusions and paranoia.
   3. Reliance on superficial surface appearances as to intellect and lucidity of speech, to a layman, when such matters are entirely consistent with underlying psychotic symptoms, to a forensic psychiatrist. Much of what AC said was in fact grandiose and overblown at every stage.
   4. isconceived points on the approach of the experts to sources of information – from the patient, from contemporaneous records, and from third party information. In every respect the approach of Dr Ho and Dr Deo was methodologically exemplary.

Chris Daw QC
12th December 2019