A defence lawyer who testifies against his own client

Extracts from Phil Smith’s embarrassing and humiliating cross-examination by Mr Daw QC on the 11th December 2019 at the Court of Appeal.

KEY:
CD – Chris Daw QQ [Appeal Defence Barrister]
PS – Phil Smith [Head of Crime at Simons Muirhead and Burton Solicitors]

1. P Smith admits the reason for his evidence:

CD:	Mr Smith, when you were asked to provide your written comments on the notice of appeal, do you remember, in July 2016, did you feel the need in any way to defend yourself and your conduct of the case in responding?
PS:	From the nature of the suggestions that were made in the notice and the grounds of appeal, there were very direct accusations made in relation to the way I had conducted Mr Choudhuri's defence.
CD:	Of what nature were those accusations?
PS:	The accusation was, putting it bluntly, that a defence had not been run that should have been run of a psychiatric nature.

2. P Smith admits he voluntarily served a witness statement with an accompanying bundle to assist the prosecution:

PS:	I reserved this with my witness statement on 15 November 2019

3. P Smith arrogantly and extraordinarily states what anything he says is fact:

CD:	Mr Smith, you are a lawyer, a criminal lawyer at that, you know the difference between a fact and an opinion presumably.
PS:	Well, if I state something as fact then plainly it is my opinion of what is a fact and what is not a fact.
CD:	But you have reached your conclusion as to that --
PS:	I will give you an example, sorry. If I say to you, I think it is a bit cold today outside, then that is a statement of fact. But you might go outside, you might come back and you say, do you know what, I do not think it is that cold outside and that is your opinion, which affects whether you perceive that to be a fact or not.
CD:	Mr Smith, there is absolutely no correlation between perception of temperature amongst ordinary individuals as they walk the streets and an expert opinion on the Pritchard criteria by a consultation psychiatrist, they are worlds apart, not remotely comparative.

4. P Smith admits he did not read the complete Defence Court of Appeal Bundle which consisted of 3 A4 lever arch files before he drafted his witness statement and prepared a bundle of his documents to assist the prosecution. P Smith admits that he spent a considerable amount of time preparing his response:

CD:	You were offered a copy of all documents in the letter, were you not, but if you want a copy, if you look at the index in the letter in which the notice of appeal was attached and offered a copy of any of the documents if you wish to refresh your memory or to read them. There were three lever arch files, as the court knows, and you were offered the opportunity if you wished to see any of them and you did not ask to see any of them, is that right?
PS:	Well, I have to draw the line somewhere Mr Daw.
CD:	So, only making the point Mr Smith, that I made to you a moment ago, you were sent, as we can see from the four --
PS:	Sorry, I do not have that document in front of me. I have got Dr Ho's report, I have not got the letter.
CD:	You will see there are four bullet points, which itemise enclosures, including the index, which did include many of your file notes and at the very last paragraph. The draft index run to three lever arch files. Our letter says, "We do not intend to provide a full copy of those papers in the interests of common efficiency. However, should you wish to receive a copy of any document listed on the file's index, please indicate which you require and a copy will be supplied by return," all right? Which, do you agree, is a pretty reasonable way to go about this exercise with the volume of paperwork and much of it not related to you?
PS:	Mr Daw, let me just explain something, so, I received this correspondence. I was asked to respond to it, I did respond to it. I had to draw the line somewhere and I drew the line based on the material that I was provided with. I spent a considerable amount of time drafting my response.

5. Cross examination of P Smith re a Letter of Claim sent to Tuckers Solicitors, a firm which P Smith was a former partner in. P Smith did not inform the prosecution nor the Appeal Court Judges of this until it was exposed during cross examination.

CD:	We have received a letter dated 26 November of this year, and I just want to see whether this accord or not with your -- well, let me read the email, just to this paragraph, I think your Lordships should have a copy of this. It is something that came to light, relatively recently. So that we are clear about this Mr Smith, _____________ had issued proceedings against Tuckers, had he not, in relation to your representation or your then representation of him in the criminal proceedings, is that right?
PS:	Yes, that's correct.
CD:	Yes, indeed, I just want to understand, to be fair to you, have you, were you consulted about the contents of this response to the claim, to the letter before claim?
PS:	I was sent, I think I was sent a copy of the response.

6. PS extraordinary testimony that despite him being the only solicitor who was involved with Defendant he testified that he ‘had not read the letter of claim’ for professional negligence and that ‘he had not been involved in a drafting a response’
[How was P Smith able to answer questions put to him by Mr Daw if he had not read the Letter of Claim or produce his dossier sent to the CPS?]

CD:	You are quite right. So, did you approve the contents of this response or not?
PS:	I was sent a copy of it.
CD:	Right, but did you read it?
PS:	I did not read the letter of it, no, it was in response to a letter before action, which was drafted, which included a whole raft of suggestions, including the suggestion that we did not properly explore whether there was evidence suggestive of _____________ father making the phone calls to which led to one of the counts of perverting the course of justice and the suggestion in the notice and grounds was that we had not instructed a cell site expert and we had not undertaken proper enquiries, whereas very obviously that is at odds with what was in the grounds of appeal.

7. PS risibly dismissing a severe mental illness as ‘depression’

PS:	It is obvious that he needed some form of assistance from the psychiatric services, he was depressed, yes.
CD:	He was depressed. Are you aware that 90 per cent of schizophrenic diagnosis begin as symptoms of depression, Mr Smith, as we will hear from one of the experts later, is that something you are aware of, or not?
PS:	Well, it is a statistic that I was not previously aware of, no, Mr Daw.
CD:	No, you would not be though, would you Mr Smith.
PS:	Is that a comment.
CD:	Yes, it is, you would not be because you are not a psychiatrist and you are not learned in the onset of schizophrenia, that is correct, is it not?
PS:	Yes. I do detect a degree facetiousness in your tone.
CD:	There is none, Mr Smith.
CD:	Your belief as a lawyer rather than a psychiatrist is that a paranoid schizophrenic is capable of having sufficient insight into their condition and choose from Well, I think –
CD:	The reason I put that to you Mr Smith, is because you are asserting that _____________ was competent, entirely competent --
PS:	Based on the information, yes, absolutely.
CD:	-- to self-diagnose, to choose whether to take antipsychotics, which he did not, against medical advice and the like.
PS:	You are painting a picture which is not accurate.
CD:	All right.

8. PS falsely accuses Defendant of manipulating evidence and beefing up medical reports and humiliated once again under cross examination:

CD:	I just want to briefly, if I may, ask you to turn to the notice of appeal -- sorry, no, Dr Ho's report, it is at page 101, we will use that for reference, it is a bit easier, page 101 of the same bundle please and just briefly I want to just be clear whether you did or did not know any of these things post-Dr Cree. So, 9 May, this is paragraph 9.3: "Mental health notes documented. _____________ complaining two voices in his head, sometimes on the outside, derogatory in nature, telling him to kill himself, mood is low, effect withdrawal, however, his speech was rapid and softly spoken." 9.4 “Claustrophobia and anxiety disorder, reported hearing voices only at night time, external voices that told him to hurt himself." June 2013: "He is referred for cognitive behaviour therapy for depression prior to imprisonment. He was documented to have experienced that obviously voices telling him to kill himself over the previous six weeks. Antidepressant medication and possibly antipsychotic medication documented is indicated."
PS:	Could I just add some context to this?
CD:	Of course.
PS:	This comes against the background of repeated attempts by him to get the report of Dr Cree beefed up. There was in particular a conversation that I had with him on 15 April where he was concerned, he thought that the report of Dr Cree could be made more useful to him and so he put some, he tried to exert some pressure. coupled with his family, to beef up the report. He threatened to withhold payment to Dr Cree until the report was more favorable to him.
CD:	Yes.
PS:	Now, low and behold, within hours of me having the conversation with him in which I explained the ethical situation repeatedly, that one could not control precisely what a psychiatrist said, it was up to him to write his findings and I could not tell him what to write. He reported exacerbated symptoms that afternoon to the prison medical team.
CD:	But not to you.
PS:	On the same day, on 15 April, it is in the notes.
CD:	But he did not report them to you or any of these interactions with the prison medical team, which he was reporting psychosis, he did not tell you about those, that is right, is it not?
PS:	Not on 15 April, no.
CD:	Or ever. I am just trying to explore the theory that this was some cunning plot. He did not say, look, hold on Phil or Mr Smith, you know, look, I think you can go and get the medical records, there are four or five examples of me reporting psychotic symptoms, he never told you any of that?
PS:	He did not, no.