Key Facts
- •Graeme Brooker was convicted of two counts of theft from his sister, Cheryl Brooker, after a trial.
- •The appeal concerns the fairness of the trial, specifically the defence counsel's (Mr. Martin-Sperry's) decision not to cross-examine Cheryl Brooker.
- •Mr. Martin-Sperry's decision was based on his personal opinion that cross-examination would risk Cheryl's health, despite a lack of medical evidence supporting this.
- •The judge directed the jury that they could consider the defence's failure to cross-examine Cheryl as a factor in their deliberations.
- •The appellant's case was that the money was a gift from his sister and he did not steal it.
- •Mr. Martin-Sperry's conduct was found to be unprofessional and below the expected standard for a barrister.
Legal Principles
Every defendant has an absolute right to a fair trial.
R v Farooqi and others [2013] EWCA Crim 1649
Incompetent representation, in itself, does not form a ground of appeal unless it led to identifiable errors or irregularities rendering the process unfair or unsafe.
R v Mark Darren Day [2003] EWCA Crim 1060
A party is required to challenge in cross-examination the evidence of any witness of the opposing party if they wish to submit that the evidence should not be accepted.
Phipson on Evidence 20th ed (2022)
Counsel's duty to the court overrides any other duty, including the duty to act in the best interests of their client.
Bar Standard Code of Conduct
Counsel must not make a serious allegation against a witness whom they have had an opportunity to cross-examine unless they have given that witness a chance to answer the allegation.
Bar Standard Code of Conduct, Rule C7
Once the court has ruled on a witness's competence, the parties are bound by the ruling.
Case Law
Outcomes
Appeal against conviction dismissed.
Despite the defence counsel's incompetence, the conviction was deemed safe due to several factors: the unfairness was primarily to the prosecution; the adverse direction to the jury was mild; the appellant understood the potential consequences; and the judge's summing up was fair.