England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th April 2004

Mr Justice Buckley:

Background

1. In June and November 1996 a young lady was assaulted. She had seen, as she thought, her attacker three times between those incidents. Finally, in the company of the police, she identified the Claimant, Chetan Popat, as her assailant. He was arrested, charged with various offences, including attempted rape, and tried in July 1997. He was convicted by a majority verdict and in due course sentenced to 8 years imprisonment. He was granted leave to appeal by the full Court of Appeal Criminal Division, but on 23^rd March 1998 his appeal was dismissed (appeal 1). Mr Popat continued to maintain his innocence. His father, on his behalf, sought help and advice from the local Citizens Advice Bureaux and other lawyers. Eventually, the matter was considered by the Criminal Cases Review Commission (CCRC) and referred back to the Court of Appeal. In July 1999 the convictions were quashed (appeal 2) and a new trial ordered at which Mr Popat was acquitted in November 1999.

The Claim

2. In this action Mr Popat seeks damages from the Defendant, Miss Barnes, the barrister who represented him at his first trial and appeal 1. He alleges she was negligent at trial and in connection with appeal 1.
3. At the trial the defence was mistaken identity. However, in support a Notice of Alibi was served and Mr Popat and his parents gave evidence that he was at home at the time the two assaults.
4. The Particulars of Negligence as set out in the Particulars of Claim are as follows:

"Particulars of Negligence

(a) Failing to notice the lack of any alibi direction in the summing-up and/or failing to alert the Trial Judge to this omission;

(b) Alternatively, consciously deciding not to alert the Trial Judge to the said omission;

(c) Failing to advise the Claimant at the time or thereafter as to the omission, and/or as to its significance, and/or of its potential as a properly arguable ground of appeal;

(d) Failing to include, or to later incorporate or consider incorporating, the absence of any alibi directions in her grounds of appeal or in additional or supplementary grounds of appeal;

(e) Failing at any time to raise the issue with the Court of Appeal;

(f) Continuing failure to identify or consider any such ground of appeal or, if identified and considered, failing to advise the Claimant thereon, until her instructions to act were withdrawn;

(g) In the premises failing to take sufficient care in her representation of the Claimant and in respect of his appeal."

It is to be noted that the only criticism of the Defendant is in respect of her failure to bring to the attention of the Trial Judge or the Court of Appeal the absence of an alibi direction. No other specific criticism was sought to be raised before me under the more general allegations in (g).

5. It is agreed that the Defendant neither pointed out the omission to the Trial Judge nor raised it before the Court of Appeal. The "Grounds of Appeal" settled by the Defendant were as follows:

"GROUNDS OF APPEAL AGAINST CONVICTION

The Learned Judge erred in the following respects :-

1. Wrongly rejecting an application to exclude evidence of identification in breach of Code D.2.3 PACEA 1984. This application being made under Section 78 of the same act.

2. Having admitted the identification evidence the Learned Judge failed to give sufficient warning about the failure to hold an identification parade. Suggesting to the jury this was really a 'recognition' case, which it was not.

3. Dismissing a vital defence point in Summing Up. The braces (picture of which is attached hereto) You saw him give evidence could you see his teeth?

4. In leaving the jury out for 11 hours in a case which barely took 2 days and had one single issue. After 10 hours the Judge gave a Watson direction and within 30 minutes verdicts of guilty on all Counts 10:2 followed.

5. In all the circumstances these Convictions are unsafe."

6. In giving the Court's judgment in appeal 2, Beldam LJ. noted that Mr Popat had been given leave to appeal in appeal 1 only on the grounds that the Judge ought not to have admitted the evidence of identification. Thus no other matters were considered at the hearing. Whilst it must be acknowledged that the Court of Appeal's attention would be fixed primarily on the Grounds raised on behalf of the Appellant, it is apparent that the absence of an alibi direction seemed unremarkable to all seven judges who read the summing-up in the course of appeal 1 (the Single Judge, the Full Court in giving limited leave and the Full Court on the appeal). Unsurprisingly, Mr Lawson QC for the Defendant submitted there was little support to be found in that aspect of the matter for the allegation that here was a blatant omission in respect of a mandatory direction.
7. The Defence herein (paragraph 6(5)) asserted that the Defendant had advised Mr Popat, in the presence of his parents, that in the circumstances of this trial, to ask the Judge to recall the jury and give them an alibi direction might give them the impression that the judge thought his parents had lied in evidence; Mr Popat then instructed the Defendant not to raise the omission.
8. That assertion was denied in Mr Popat's and his parents' witness statements. However, in the end there was much less between the parties than the denials suggested. Mr Popat agreed in evidence that he had spoken to the Defendant after the jury retired but could not now recall any details. He did not recall a discussion about the absence of an alibi direction, but accepted one was possible. He agreed he would not have liked any suggestion that his parents had lied and would have followed the Defendant's advice.
9. The Defendant in evidence could recall no more than speaking to Mr Popat about the alibi. In her witness statement she said she could not say whether the parents were present on that occasion. However, in view of Miss Wass QC's witness statement, she now believed that the discussion with Mr Popat was indeed in the absence of his parents. Miss Wass was prosecuting counsel at the trial. The relevant part of her witness statement, namely paragraph 6, stated that whilst the jury was deliberating she and the Defendant discussed the topic of alibi in the Bar Mess at the Old Bailey and the Defendant told her that Mr Popat felt that a full alibi direction would give the impression his parents were lying and had instructed her not to raise it. She confirmed that in giving evidence. The Defendant also said that Mr Popat appeared to trust her at the trial and would have accepted her advice. She firmly believed at the time and now that an alibi direction would have been against his interests.
10. Miss Wass also said in evidence that she had discussed the question of an alibi direction with the Defendant before the summing-up. Her own view was that one was not necessary in view of the way she had cross-examined the parties and presented the prosecution case to the jury and did not propose specifically to ask the judge to give one. However, if the Defendant wanted one, she would not stand in her way. She did not believe such a direction was mandatory at the time. The Defendant did not now recall that discussion but accepted Miss Wass' account.
11. I am satisfied and find that at the trial both counsel had the question of an alibi direction in mind, but believed that it was not mandatory for a judge to give one in every case. I find that both counsel noticed the absence of such a direction in the summing-up; Miss Wass was content and the Defendant honestly believed that for the jury to be recalled for a specific alibi direction would be against the interests of her client, Mr Popat, since it would or might focus attention on the question whether Mr Popat's parents had lied to support his case. Her view at the time was that the parents had not been very impressive witnesses, albeit no one impugned their integrity or honest desire to help their son. I also find that the Defendant discussed the absence of the alibi direction with Mr Popat, that his parents were not present and that Mr Popat agreed that the Defendant should not raise the matter with the Judge.
12. Mr Newman QC, for Mr Popat, made it clear that he did not suggest that the Defendant had a duty, as defence counsel, to raise the matter with the Judge, but maintained that it was negligent not to do so; she should have invited the Judge to give the standard alibi direction but limiting the so-called "Lucas" limb of it to Mr Popat and not to mention the evidence given by his parents. It is implicit in that submission that the Defendant's assessment of the situation at trial was wrong and that her advice to Mr Popat and subsequent decision were also wrong; not just wrong or in error, but so untenable that no competent counsel could or would have acted in that way.
13. I have no hesitation in rejecting that submission. Miss Wass and the Defendant both said in evidence, and the transcript confirms, that Miss Wass cross-examined on the basis that the parents simply believed their son when he told them he had been at home with them at the times in question and had no real independent recollection. Further, that in any event, he could easily have slipped out for a short period, which was all that would have been necessary to commit the offences. The parents maintained they could remember the two days in question for various reasons and maintained that their son had not left the house; they would have noticed. To be precise, Mr Popat senior had left home for work on the morning off the first assault but was at home during the evening when the November assault occurred. Miss Wass did not suggest to the witnesses that they were lying, her objective was simply to demonstrate that the alibi was not water-tight, that Mr Popat could have and indeed had gone out on the two occasions in question. Miss Wass did not directly suggest to Mr Popat that he had concocted a false alibi. As the Defendant said in evidence it did not form a separate or "compartmentalised" part of the trial. In the end the only real emphasis was on the central issue of identification by the victim. There is no transcript of counsels' addresses to the jury, but they told me that they did not specifically or independently address the jury on the alibi aspect of the case and I accept that evidence. Obviously, if Mr Popat was the assailant, he had lied in insisting he was at home all the time, but so much is almost implicit in a plea of not guilty. Further, although everyone accepted that Mr Popat's parents were very caring and supportive of their son, they were not the most persuasive of witnesses. They are a very religious couple, quiet in their manner and perhaps experienced some language problems. No criticism at all was intended of them, but all this formed a part of the Defendant's decision at trial.
14. In summing-up the Judge quite rightly spent considerable time on the identification evidence. He then summarised Mr Popat's and his parents' evidence that he was at home at the time of the assaults. He made no suggestion or comment on the topic of concocted alibi or the possibility of lying parents supporting their son. That was understandable and fair because Miss Wass had not done so on behalf of the prosecution. Almost immediately after his summary of the parents' evidence the Judge repeated a burden and standard of proof direction in these terms:

"bear in mind that no defendant has to prove anything. It is up to the Crown to satisfy you on the whole of the evidence that this case has been proved. If you have any doubt based on reason then he is entitled to a verdict of not guilty."

He then said:

"The issue is one of identification." (My emphasis).

15. It was in those circumstances that the Defendant had to decide whether, in the best interests of her client, to invite the Judge to recall the jury (having discussed the matter with Mr Popat) and give a further alibi direction.
16. In my judgment it is at least a tenable view (I would personally put it higher) that the second burden and standard of proof direction, coming as it did almost immediately after the Judge's summary of the parents' evidence, could have left the jury in no doubt as to how to approach their task. The Judge did not insert the word "alibi", but since we operate a jury system in criminal trials it must be presumed they have some intelligence and common sense.
17. As I have mentioned, Mr Newman also submitted that the Defendant could and should have invited the Judge to give a Lucas alibi direction limited to Mr Popat. In the end, I understood everyone to agree that in practice both limbs of the standard alibi direction go together. That is certainly my experience and, if necessary, I find that although it would be theoretically possible for a judge to give the burden of proof limb only, in practice that doesn't usually happen. As to inviting the Judge to give the Lucas limb of the direction limited only to Mr Popat, I can readily understand any counsel's anxiety that once the topic was raised a judge could decide to give the usual full direction. counsel cannot dictate to a judge on such matters, albeit "assistance" is usually politely welcomed.
18. This trial had gone as I have described. Neither counsel nor the Judge had dwelt on or "compartmentalised" the topic of alibi. All had addressed the jury on the basis that the issue was identification. Viewed objectively, the alibi was probably not water-tight and for the Defendant to form the view that the less said on the topic the better and the last thing she wanted was for attention to be focussed on possible lies in that respect by the defendant, let alone his parents, was entirely reasonable. Her view was that there were valid points to be made on the identification evidence and therein lay Mr Popat's best chance of an acquittal. Put more legalistically; the Defendant's view of the matter and her decision cannot, in my view, fairly be described as one that no competent counsel could share.
19. I have reached that finding for the reasons given. However, I would add that I know from experience that many, if not most, criminal practitioners accept that in some circumstances the standard direction on lies (Lucas) can be two edged from the defence's point of view.

The Law and Practice

20. Since Mr Newman did not suggest the Defendant had a professional duty to raise the absence of an alibi direction with the Judge, it seems to me that the Judge's obligations in respect of the direction add nothing to the question of counsel's negligence at trial, but do have a bearing on the Defendant's duty in respect of appeal 1.
21. I believe all were agreed that for counsel deliberately and for no bona fide reason, to sit on their hands at trial solely with a view to creating a ground of appeal, would be thoroughly unprofessional. However, counsel may make a tactical decision at trial and thereafter wonder whether it was for the best. Counsel may even come to the view that their decision was wrong. I observe in passing that the fact that a jury convicts following a decision not to invite a specific jury direction or to call certain evidence, does not of itself demonstrate that the decision was wrong, let alone negligent. For example, in this matter the jury at the 1^st trial, which lasted two days, took some 11 hours to reach a 10:2 majority verdict of guilty. It is possible that a direction causing them, to ponder more directly on questions of alibi and lies might have led to a more emphatic verdict. I am not here intending any comment on the merits or otherwise of the case against Mr Popat. By definition the first verdict was incorrect.
22. The clearer a judge's duty to give a certain direction to a jury, the stronger a ground of appeal based on its absence is likely to be. Leaving aside prosecuting counsel's duty (which may be somewhat unrealistic), defence counsel, having decided not to seek a certain direction, should review the decision after a guilty verdict and consider afresh whether the omission could sensibly have rendered the verdict unsafe. It will be difficult, but not impossible, to raise a ground of appeal based on an omitted direction which defence counsel had deliberately chosen not to invite a judge to correct. If counsel, on reflection, considers that if the omitted direction had been given there is a real chance that the jury would have acquitted, two courses are open. One, is to advise the client to seek another opinion; the other, is to take the point as a ground of appeal and, of course, explain to the Court of Appeal what happened. No criticism is here made of the Defendant for not adopting the first course. In deciding whether the allegation that she should have adopted the second has any merit, some assistance may be gained from considering how the law and practice stood at the time, namely, late 1997 to early 1998. It was to that end that counsel drew my attention to numerous cases and various other sources of enlightenment.
23. The obvious starting point is Archbold, Criminal Pleading Evidence and Practice. It is agreed that the 1997 Edition was current at the relevant time.
24. In view of Mr Newman's concession concerning counsel's duty, a short reference only will suffice. At paragraph 4-371 the accepted duty of prosecuting counsel to draw to the judge's attention any perceived inadequacies in his directions on law or other essential ingredients of a summing-up is recited. At paragraph 4-372 the following appears:

"The extent to which defence counsel is under the same duty is not clear, in R v. Cocks 63 Cr. App. R. 79, CA James LJ said, obiter at p.82:

". . . . defending counsel owes a duty to his client and it is not his duty to correct the judge if a judge has gone wrong.""

The paragraph continues with a reference to R v. Edwards(NW) 77 Cr. App. R. 5 CA in which the court was content to accept James LJ's dictum. Since then the Court of Appeal has certainly encouraged both counsel to draw any problems to the judge's attention, but it is not clear that where any such duty on defence counsel would conflict with counsel's duty to the client, the latter should not prevail. The passage in Archbold having considered the Code of Conduct concludes by submitting that the dictum in Cocks should be taken to represent the law until such time as it is expressly disapproved by the Court of Appeal.

25. As to the alibi direction, the 1997 Archbold at paragraph 4-383 states as follows:

"Although there is no rule of law that in every case where the defendant relies on an alibi the judge must direct that it is for the prosecution to negative the alibi (Anderson, post, where no such direction was given the appeal against conviction was dismissed) such a direction is necessary if the jury seem in danger of supposing that, because an alibi has been put forward by the defence, the burden must be on the defence to prove it; R v. Wood 52 Cr. App. R. 74, CA. In any event, even where such a direction is not strictly necessary, it is none the less desirable: R v. Anderson (1991) Crim. A. R. 361 CA; R v. Preece 96 Cr. App. R. 264, CA."

26. In Preece the Court indicated that:

"It is certainly common practice and good practice to give such a direction whenever a defendant calls alibi evidence, or indeed gives alibi evidence himself. Whether it is required by law in all cases is perhaps a little more difficult . . . . "

Reference was made to Wood at page 78 where Lord Parker CJ gave the opinion of the court that there was no such general rule of law that a burden of proof direction should be given in every case when an alibi was raised. In Preece itself Lord Justice Staughton appears to have accepted Lord Parker's statement of the law but accepted that there was a general practice of giving such a direction in all cases.

27. As to the lies or Lucas limb of the alibi direction, Archbold 1997 Edition at paragraph 4-402 states:

"(6) On a defendant's lies and/or an untrue alibi

In R v. Goodway 98 Cr. App. R. 11 CA it was held that whenever lies are relied on by the prosecution, or might be used by the jury, to support evidence of guilt as opposed to merely reflecting on the defendant's credibility, a judge should give a full direction in accordance with R v. Lucas (R) [1981] QB 720."

28. R v. Lesley (1996) 1 Cr. App. R. 39 CA is cited as authority for the proposition that a similar direction, that is a Lucas type direction, should now routinely be given in respect in respect of false alibis.
29. Archbold accurately points out that at that time there had been a plethora of appeals as to whether a Lucas direction was called for in the particular circumstances under consideration (not just alibi cases). Archbold then cites cases in which such a direction had and had not been held to be necessary. R v. Burge & Pegg (1996) 1 Cr. App. R. 163 is then cited as giving guidance on the topic of lies and the Lucas direction not being required in every case where a defendant has given evidence but stating that the direction will "usually be required (a) where the defence has raised an alibi; . . . ."
30. In Supplement No. 2 June 1997 there is added a reference to R v. Harron (1996) Crim. L. R. 581 CA. After some short commentary on the case the following appears:

"A Lucas direction is only required where on some collateral matter, and due to some change in evidence or account by the defendant, there is scope for drawing an inference of guilt from the fact that the defendant had, on an earlier occasion, told lies, or, on some other matter, told lies at trial."

31. Mr Lawson drew attention to the [1996] 2 Cr. App. R. 457 report at page 466 B – F in which Beldam LJ in giving the Court's judgment stated that in the particular circumstances of that case for the judge to point out that the defendant's lies, if so found by the jury, might have been told to bolster a genuine defence would have confused rather than clarified the issues for the jury. Towards the end of the passage in question he said that the court was not persuaded that if the jury had been told that alibis are sometimes falsely put forward to bolster an honest defence it would have affected their decision and accordingly the conviction was not unsafe.
32. Mr Lawson also drew attention to some commentary in the Criminal Law Review at (1996) Crim. L.R. 583-4 which included that:

"A special direction should not be given unless there is a clear need for it, otherwise it may do more harm than good by adding an unnecessary and confusing layer of complexity to the jury deliberations."

The commentary goes on to suggest that such a need would generally only arise where the prosecution are suggesting the point that a lie proves something in the case or is placing particular reliance upon alleged lies.

33. Mr Lawson's submission in respect of the alibi direction was that it was not the subject of a rule of law or mandatory in every case. He accepted that in practice it was given in most cases, but in the circumstances of the present case the view of Miss Wass and the Defendant that a specific alibi direction was not necessary was at least understandable in the light of the commentary in Archbold and dicta in the cases there cited. In view of the decision of the Court of Appeal in appeal 2 (Popat) Mr Lawson conceded that the absence of the direction was a misdirection. However, he submitted that Archbold accurately reflected the position as understood by practitioners at the relevant time. He also drew attention to the Guide issued by the Registrar of Criminal Appeals set out in Archbold, in particular paragraph 2.4:

"Counsel should not settle or sign Grounds unless they are reasonable, have some real prospect of success and are such that he is prepared to argue before the Court."

In the light of all the above, the Defendant's clear, and as he submitted, reasonable view that the direction would harm Mr Popat's interests and the fact that the decision not to raise the matter with the judge had been taken deliberately, Mr Lawson submitted that the Defendant's view that she could not properly raise the matter as a ground of appeal was "within the range of decisions open to competent Counsel".

34. Mr Newman understandably drew attention to the dictum in Lesley that the alibi direction "should routinely be given", that in Burge & Pegg the court had indicated that a Lucas direction will "usually" be required where the defence raises an alibi, and, of course, the court's view in appeal 2 that the omission was a misdirection. In summary Mr Newman's submission was that even if not mandatory in all cases the direction should routinely have been given and, relying on appeal 2, the omission here was a misdirection. In those circumstances it was an obvious point to take on appeal and it was negligent of the Defendant not to have done so. Mr Newman readily accepted that had the point been taken it could only have been so with full disclosure of the circumstances at trial.
35. Before stating my conclusions there are some further matters I should mention. Neither side called expert evidence on law or practice but that is itself in line with such guidance as has been given in these cases. I must decide such matters and I do so by reference to the decided cases, other sources reasonably available to practitioners at the time and my own knowledge and experience. However, I have heard evidence from two QCs, one barrister and one solicitor, all of whom specialise largely in criminal work. It would be unrealistic (they might phrase that differently) to ignore their views. Miss Wass and the Defendant were counsel in the case and both are accepted as being, at least, competent and respected practitioners. Mr Clegg QC, also of high standing, advised for the purpose of a reference to the CCRC and conducted appeal 2. Mr Sonn acted as solicitor for Mr Popat after appeal 1 and did a lot of work on the case. Although not technically called as experts, inevitably their views on various aspects of the matter emerged. How they saw the matter at the time of their involvement is fact and since I accept they all gave honest evidence, and I shall pay heed to it, without abrogating my own duty to decide.
36. Mr Clegg and Mr Sonn were called on behalf of Mr Popat. The alibi point had already emerged by the time Mr Popat senior instructed Mr Sonn in mid-1998. A transcript of R v. Jamie Brown 17^th November 1997 CACD (Rose LJ Vice-President presiding) had been attached, unsolicited, to the trial transcript that Mr Popat senior had requested from the court. By its date it post-dated the first trial. Both were sent to Mr Sonn. Some time was spent before me investigating precisely what had been sent earlier to the Defendant for the purpose of advising on appeal 1. There is no doubt Mr Popat senior spent a great deal of time and effort to secure justice for his son and he deserves full credit for doing so. Mr Sonn remarked, "He is a meticulous man" and he had sent several letters and enclosures to solicitors with copies to the Defendant, all by registered post. I need say no more than whilst the Defendant could not now recall what she received in chambers in late 1997 or early 1998 or indeed any details of a conference she had in February 1998, she accepted, and I find, that the Jamie Brown transcript was sent to her and she read it but still advised to the effect that she could not add to the "Grounds" she had settled for the appeal.
37. Returning to Mr Sonn, he later prepared draft grounds of appeal for appeal 2 which included only the Lucas limb of the alibi direction. This surprised him because he said in evidence, the general lack of any alibi direction had struck him on reading the papers. Mr Clegg in his written opinion in February 1999, advised that the matter be referred to the CCRC. He first remarked on the complete absence of an alibi direction, referred to R v. Lesley and commented that:

"It is most unfortunate that trial counsel did not notice the omission, nor apparently did prosecuting counsel, and without having their attention drawn to it the Court of Appeal clearly did not appreciate the position as their attention was focussed on one discrete issue, namely the absence of an identification parade."

Mr Clegg identified various other criticisms of the summing-up, including in particular, the Judge's treatment of the identification issue.

38. Mr Newman, of course, placed great stress on the fact that all the lawyers and the CCRC who considered the matter after appeal 1 had failed, noted the absence of any alibi direction and regarded it as important. There were two other lawyers involved whom I have not mentioned, in particular, Mr George Heimler. He, laudably, spent time advising at the local CAB and was largely responsible for galvanising and directing further efforts in the case after appeal 1. He deserves a special mention.
39. Mr Newman submitted, and Mr Lawson accepted, that the alibi omission in the summing-up was a misdirection; the Court in appeal 2 so held. Further, that it was therefore inconceivable that had the point been taken in appeal 1, the court would not then have allowed the appeal.
40. Those submissions take no account of the important point that none of the lawyers to whom to Mr Newman referred nor the CCRC nor the Court of Appeal in appeal 2 was aware of the circumstances at trial, namely, the informed, tactical decision on behalf of Mr Popat, not to invite the judge to give an alibi direction or the reasons for that decision. Mr Clegg confirmed this in evidence; no one had told him and he had not spoken to the Defendant.
41. Mr Clegg therefore presented the case to the court in appeal 2 pursuant to combined Grounds of Appeal and Skeleton Argument as directed by Sullivan J. and settled by Mr Heimler, which ran to some 20 pages. The first ground, albeit deployed in no more than three of the 20 pages, was the lack of an alibi direction. The main emphasis in the rest of the document was on the alleged unreliability of the identification evidence and the manner in which the Judge dealt with it.
42. Miss Wass said in evidence that she felt unable to tell Mr Clegg what happened at trial, in particular, concerning her conversation with the Defendant, for fear of embarrassing him professionally and because she felt the conversation was privileged.
43. The Defendant was asked to provide comments for the Court of Appeal and did so in a short document dated 21^st July 1999. The relevant paragraph simply reads as follows:

"The Alibi Direction

10. My recollection of events is in accordance with those of the Respondent set out in paragraph 2 of her skeleton argument at 2.1 to 2.8 inclusive."

The paragraphs in Miss Wass' skeleton there referred to read:

"2.1 From the time that the appellant was interviewed on the 26^th November 1996, he put forward the defence of alibi.

2.2 At page 6 of the Record of Interview, the appellant told the police that he was taking a mathematics examination on the morning of the 10^th June when Mrs St John was attacked in the park.

2.3 Having made enquiries of Weald College, it transpired that the appellant's mathematics examination took place on the 5^th June and he was absent from college on the morning of 10^th June.

2.4 During cross-examination of the appellant at trial, Crown Counsel made it clear that it was accepted that the appellant had made a genuine mistake about the date of the examination. (see transcript at page 232).

2.5 In a Notice of Alibi dated 13^th March 1997, the appellant stated that:

(a) In relation to the 10^th June 1996, he was at home with his mother; and

(b) On the evening of 6^th November 1996, he was at home with his mother and father.

2.6 At his trial, both the appellant's parents gave evidence in support of his alibi.

2.7 Crown Counsel cross-examined the appellant's parents on the basis:

(a) That the 10^th June was an unremarkable day and Mrs Popat could not possibly be sure that her son had never left the house.

(b) That Mrs Popat was convinced of her son's innocence and when he told her that he was with her on the 10^th June, she took him at his word and gave evidence accordingly.

(c) That Mr Popat first came to recall the evening of 6^th November on the 4^th February 1997 when the Crown Prosecution Service provided him with the papers in the case.

(d) Accordingly, it was suggested to Mr Popat that he could not be certain as to events of the 6^th November which were fairly routine in any event.

2.8 It was not suggested to either of the alibi witnesses that they dishonestly concocted alibis on behalf of their son."

After referring to the alibi ground of appeal the skeleton continued:

"2.10 The Learned Trial Judge gave a clear direction on the burden of proof at page 302 of the transcript of the Summing-up. He repeated this direction at page 359 D/E immediately after reminding the jury of the defence evidence.

2.11 As it was never suggested by the Crown that the alibis put forward were "false" (rather that they were mistaken), a "failed alibi" direction would have been disadvantageous to the defence in that it may have suggested to the jury that the alibi witnesses were lying when that was not how the Crown put the case.

2.12 The Crown never suggested that this was a case where a fabricated alibi could support the identification evidence (see R v. Turnbull at 14-9 of Archbold and R v. Goodway 98 Cr. App. R 11).

2.13 In any event, the case of R v. Lesley recognises that a failure to give such a direction did not automatically render the conviction unsafe, (see also R v. Drake (1996) CLR 109). "

44. Thus it was that the court in appeal 2 decided the appeal in ignorance of the fact that the defence had chosen to refrain from asking the judge to give any further direction on alibi. The only clue for the Court of Appeal was in paragraph 2.11 of Miss Wass' skeleton. The court might have wondered whether that reflected the defence view at trial. However, the Defendant's "comments" for the Court of Appeal only adopted paragraphs 2.1 to 2.8 and not 2.11. Mr Clegg had no recollection of the point arising in argument nor did Miss Wass. Had it done so I cannot think it would have escaped comment in the judgment.
45. In R v. Gammans & Jarman of which I had only the transcript dated 13^th November 1998 one of Gammans' grounds of appeal against conviction was that the judge erred in not reminding the jury of salient matters of evidence. It appears from the judgment that the trial judge had prepared a draft of his summing-up which he showed to counsel in order to give them the opportunity of making comments. The defence counsel could have, but did not make, the suggestion that later appeared as a ground of appeal. Clarke LJ giving the judgment of the court observed at page 23 of the transcript:

"It is far from satisfactory for counsel who have been offered the opportunity to comment upon the summing-up to sit quietly and only complain after their clients have been convicted. That does not mean that this court will not give consideration to any particular complaint made, but the inference which it is most likely to draw from such silence is that, as Mr Nutting put it in argument, the suggested deficiencies are not as weighty or obvious as is now suggested. . . . . . . . The fact that they were not raised at the time in our judgment detracts from their force."

And on the next page:

"We feel sure that if any one on the defence side had thought at the time that in fairly putting the defence case to the jury every car should have been dealt with in the summing-up, they would undoubtedly have said so."

46. In concluding that the convictions were not unsafe despite certain omissions in the summing-up Clarke LJ added:

"Especially since, as we have already indicated neither defence counsel thought that any of the matters which are presently complained of should be brought to the attention of the judge at the time."

47. Further in R v. Martin [2003] QB 1 at 13, paragraph 51 Lord Woolf CJ referring to the Privy Counsel decision in Boodram v. The State of Trinidad and Tobago The Times 15 May 2001 said:

"Their Lordships were not indicating that where a decision has been made not to rely on evidence for good reason at the trial, it is possible to adopt the opposite tactics on appeal and then suggest that the conviction is unsafe."

48. Whilst those cases did not involve a decision not to invite a judge to give a particular direction to the jury, they illustrate the principle that a tactical decision made at trial cannot easily be reversed by counsel in the Court of Appeal. Unless it can be said that counsel's decision was manifestly wrong and against his client's interests the decision at trial will be a persuasive indication that the verdict is not unsafe. Those cases, of course, post date appeal 2 but reflect general opinion at that time.
49. These last considerations have a particular relevance to causation and assessment of any chance that Mr Popat may have had of succeeding at appeal 1, had the alibi omission then been added as a Ground of Appeal.
50. I note that Beldam LJ in giving the Court's judgment in appeal 2 identified one of the grounds for the referral which was pursued before the Court as:

"The trial judge failed to give the mandatory warning to the jury that it was for the prosecution to disprove the alibi advanced by Mr Popat." R v. Popat (No. 2) (2000) 1 Cr. App. R. 387 at 389 A/B.

At page 397 between B/C he said:

"Mr Clegg's first submission is that the judge did not direct the jury that the burden of disproving the alibi put forward by the appellant was on the prosecution."

51. Those passages seem quite specific and refer to the burden of proof limb of the alibi direction only. Mr Clegg could not now recall the hearing and could only say he assumed he would have argued that both limbs should have been given since both were referred to in the Grounds and he regarded them as going together.
52. The next passage on page 397 between C/D also puzzles me. The court refers to a submission by Miss Wass to the effect that since the prosecution had not suggested that the alibis were false or concocted there was no need for a direction on the burden of proof related specifically to the alibi evidence. Miss Wass' skeleton argument for the appeal makes plain that her submission concerning false or concocted alibi is relevant to the Lucas limb of the alibi direction and not the burden of proof limb. I cannot think she would have submitted differently in court; she was certainly in no doubt on this point before me. Further, Lesley to which the Court then refers, held that the full alibi direction should be given, but was itself only concerned with the Lucas limb, since the Judge had in fact given the burden of proof direction relating to alibi.
53. However, taken literally the Court's decision (appeal 2) was expressed with reference only to the burden of proof direction. Whether that particular omission or even the omission of both limbs, if the Court intended to cover the full direction, was regarded by the Court as alone rendering the verdict unsafe is itself unclear. The Court said at 397 between D/E that it would return to the point later but did not do so specifically. It referred in more detail to the identification deficiencies in the summing-up to which it seemed to attach importance, mentioned two further criticisms of the summing-up and then concluded:

"Having considered the undoubted deficiencies in the summing-up, we are of the opinion that it would not be safe to allow a conviction based on such a summing-up to stand."

54. In those circumstances I can obtain no great guidance as to the outcome of appeal 1, if the lack of alibi direction ground alone had been added as a ground of appeal. I say "alone" because of the lack of any criticism of the Defendant other than based on the alibi point.
55. As I shall mention later, the circumstances prevailing at the time of appeal 2 were very different. That Court had the benefit of the CCRC's report, numerous other grounds of appeal were taken, several of which found favour with the Court, in particular, one based on an aspect of the Turnbull direction and the Judge's treatment of the identification evidence.
56. In summary, Mr Lawson was constrained to concede that, in view of the Court's decision in appeal 2, the absence of any alibi direction was a misdirection. Mr Newman, understandably, prayed in aid that the lawyers who read the summing-up after appeal 1 was dismissed and the CCRC all thought that the absence of an alibi direction was a valid ground of appeal. However, even assuming that all carefully read the trial transcript, they did not have a transcript of counsel's final speeches. Nor did they know Miss Wass' view at the time or that the Defendant had spoken to Miss Wass and taken a deliberate decision not to invite the direction.
57. Even after Burge & Pegg the question as to when a Lucas direction was necessary, was not regarded by practitioners as the easiest to answer. The Defendant is not criticised for failing to raise any of the grounds that were ultimately put forward in appeal 2 and which clearly impressed that court. It is far from clear that the court in appeal 2 regarded the absence of the Lucas limb of the alibi direction as important and it is doubtful whether the burden of proof limb by itself would have been likely to lead the court at the time of appeal 1 to a conclusion that the verdict was unsafe.

Conclusions

58. I have already stated that I reject the submission that the Defendant was negligent in not inviting the Judge to give the alibi direction.
59. As to the charge of negligence in respect of appeal 1, my conclusions and findings are:

i) There was no rule of law requiring a judge, in all circumstances, to give what has become the standard alibi direction, namely burden and standard of proof and Lucas;

ii) Competent practitioners would have known that such a direction was "usually" given by judges when a defence of alibi had been raised and that the CACD had said it should "routinely" by given in such cases; its absence would not necessarily render a verdict unsafe (R v. Lesley);

iii) The question of when a Lucas direction on lies should be given had, at least up to the time of the decision in Burge & Pegg caused uncertainty and led to many appeals, some successful others not;

iv) The court in Burge & Pegg recognised iii) above and in seeking to give guidance Kennedy LJ at page 173 said:

"As there seems to be at the moment a tendency in one appeal after another to assert that there has been no direction, or an inadequate direction, as to lies, it may be helpful if we conclude by summarising the circumstances in which, in our judgment, a Lucas direction is usually required." (my emphasis).

Kennedy LJ then identified four circumstances including, where the defence relies upon an alibi, but then pointed out that:

"If a Lucas direction is given where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence) it will add complexity and do more harm than good."

He then indicated that the direction, if given, should be tailored to the circumstances of the case;

v) Although the lack of an alibi direction on the burden of proof amounted to a misdirection according to the court in appeal 2 the Defendant had also to consider the question whether it rendered the verdict unsafe;

vi) The Defendant's clear view at the time, that any further direction, including the Lucas limb, could have and probably would have harmed rather than helped her client's cause, was a reasonable view for a competent practitioner to hold;

vii) The Defendant's decision that it was not appropriate to seek to raise the alibi point as a ground of appeal was one that a competent practitioner could reasonably have taken in view of the deliberate decision taken at trial and that it remained the Defendant's view that the Lucas direction would have harmed her client's interests.

60. I therefore conclude that the Defendant was not negligent in failing to raise the lack of alibi direction as a ground of appeal or in failing to bring that omission to the attention of the Court at the actual hearing.
61. In many cases Counsel have to make choices. The Defendant here was faced with that dilemma. Now that the circumstances are known in which her decisions had to be made and having read the transcripts and heard her evidence and that of Miss Wass and Mr Clegg, I am satisfied that her decisions were "honestly and carefully made" and that they were made on "the basis of judgment which is fallible and may turn out to be wrong" (see Lord Wilberforce in Saif Ali v. Sidney Mitchell & Co. [1980] AC 198 at 214). Her decisions could well have been made by other competent practitioners at the time. It follows that this action must fail.

Loss of a Chance and Damages

62. In view of my decision on liability I shall give my conclusions on these matters shortly. Counsel were agreed that this was a loss of a chance case. That is Mr Popat lost the chance of a not guilty verdict at trial and of a successful outcome at appeal 1. Mr Newman submitted that, in practice, the chance on appeal 1 was 100% because, in the event, the answer had been provided by the court in appeal 2. I reject that submission in the circumstances of this case. In short, the circumstances at appeal 2 were very different; other grounds of appeal were before the court which found favour, in particular, the judge's treatment of the identification evidence. Further, the court did not know the reason why the trial judge had not been asked to give the alibi direction. Had the alibi ground been added to the Grounds settled in appeal 1 and that court informed of what had occurred at trial it is far from certain that a different result would have followed.
63. As to the lost chance at trial, I would assess that as relatively small. Miss Wass did not consider the direction to be necessary. I do not see why I should assume that a very experienced criminal judge overlooked it; he may have shared Miss Wass' view. The Defendant believed the alibi direction might even harm her client's chances. Both limbs of the direction almost invariably went together. If it had been raised and the Judge had decided to give it the chances are he would have given the full direction. However, given the views of all concerned at the trial it is far from certain that the Judge would have given the direction. In the circumstances of this case, in particular, bearing in mind how the evidence came out and the cross-examination was conducted, I can see no real basis for concluding that an alibi direction would have added significantly to Mr Popat's chances of an acquittal.
64. Mr Monty QC, who appeared with Mr Lawson for the Defendant, submitted that in assessing the overall chance in respect of the trial I should consider first the likelihood of the judge giving the direction had he been invited to do so by the Defendant. I accept that submission and also that I must consider the situation as it would have been at the trial. Thus Miss Wass would have given her view that such a direction was unnecessary given her presentation of the case. I only differ from Mr Monty in that in approaching this aspect of the matter it is my view that I must proceed on the premise that the Defendant would have asked for the direction and not as Mr Monty submitted that she would have said it was against her client's interests. The reason I take that view is that when a court comes to assess the lost chance as a result of counsel's negligence, the premise upon which the court must proceed is surely that counsel should have invited such a direction because it would have been in the client's interest to do so. Part of the alleged negligence is inevitably counsel's wrong perception that it would be against the client's interest.
65. It is true the jury took a long time to convict by a majority, but I have already pointed out that if their attention had been brought back specifically to the question of lies, it could have affected their judgment either way, but probably adversely to Mr Popat. As to the burden of proof limb, and bearing in mind the second direction that the judge gave on the burden and standard of proof and when it was given, I do not believe that limb would have made any significant difference.
66. Mr Newman obviously relied on the verdict of the second jury, but that trial was very different. It took eight days as opposed to the two days for trial 1. Significant further evidence was called and a different attack on the identification evidence was mounted. There was a site visit. Miss Wass said in evidence, and I accept, that the victim was not as clear in her identification evidence as she had been at the first trial. She also said the parents appeared to be firmer in their evidence and consequently she felt obliged to take a different and more hostile line in cross-examination and generally. I do not ignore the fact of verdict 2, but it is not greatly significant. Overall, I would assess the chance here at no more than 20%.
67. As to appeal 1, I must endeavour to assess the Court of Appeal's reaction to a ground of appeal complaining of the lack of an alibi direction in circumstances in which the Defendant would have told the court that it was her tactical decision, taken in the client's best interests. Her view remained that it would have hurt rather than helped his cause and thus she could not have addressed the court on the basis that she had made a harmful mistake. Even if I must assume the court would have regarded its omission as a misdirection, it does not follow they would have regarded the verdict as unsafe. In all the circumstances, in particular in the absence of the other grounds that impressed the court in appeal 2, I do not think the chance that the Court would have reached a different conclusion is high.
68. Mr Monty submitted I should mathematically assess the chances of the first Court giving permission to appeal, the full Court allowing the appeal and finally, the chance of an acquittal at the hypothetical trial which would then have taken place, but which would have been so different from the actual trial 2. He suggested that 20% x 20% x 50% = 2%.
69. Despite Mr Monty's scepticism, I approve his mathematics. However, I cannot entirely follow his formula. The question of permission to appeal and the substantive hearing are so interlinked that it is not, in my view, appropriate to regard them as wholly independent hurdles. I accept Mr Monty's principle in relation to the second hypothetical trial. Having read the judgment in appeal 1, doing the best I can to envisage that court having the extra alibi ground before it in the circumstances that would have then have obtained and again bearing in mind all the factors I have mentioned, I regard the chance of a successful appeal at that stage as no more than about 30%. As for the chance at a re-trial I regard that as somewhat speculative but cannot put it higher than 60%. I assess it as a little higher than 50% because of Miss Wass' evidence that at the second trial the parents were clearer in their supportive evidence and the victim was less good in her identification evidence. I do not think those factors can be wholly accounted for by better preparation or different conduct by counsel. They were more likely the product of the passage of time and a re-run.
70. These figures should not be regarded as more than a guide. Overall, the best assessment I can arrive at is 20%.
71. I appreciate this assessment might be thought low in circumstances where an appeal was ultimately allowed and a second jury acquitted, following alleged negligence. The explanation lies in the fact that the other valid (as held) grounds of appeal were before the Court in appeal 2 and trial 2 was very different from trial 1. It was not suggested that any of these factors or differences were the fault of the Defendant.
72. Finally, I turn to the question of damages. Certain matters were, I believe, agreed: if I had held the Defendant negligent in respect of the trial the relevant period in custody would have been two years; if I had found the Defendant only to have been negligent in respect of appeal 1 the period would have been 16 months; in any event Mr Popat would have been arrested for the offences and detained in custody for about one week, thereafter he was on bail; had Mr Popat been acquitted at the first trial he would have commenced his degree course in September 1997 completing it in June 2000; had he been convicted but successful on appeal and acquitted at a re-trial he would have commenced his degree course in September 1998 and completed it in the summer of 2001; finally, damages in these cases are to an extent "front loaded" to reflect the trauma of arrest and trial experienced by an innocent individual.
73. I was referred to several cases, in particular R v. Governor of Brockhill Prison ex parte Evans (No. 2) [1999] QB 1043, in particular the judgment of Lord Woolf MR (approved in the House of Lords [2001] 2 AC 19). I shall of course accept the guidance there given and also bear in mind Thompson v. Commissioner of Police of the Metropolis [1998] QB 498.
74. There is no doubt that Mr Popat suffered an awful experience. The offences with which he was charged were abhorrent, he was convicted and spent time in prison as a sex offender with all that entails. He referred in evidence to various predictable and very unpleasant prison experiences. On examination of the evidence before me I accept Mr Monty's submission that Mr Popat had some tendency to exaggerate his experience in prison but, even allowing for that, one requires little imagination to envisage the awfulness of it. My assessment of general damages would have been £50,000 in respect of the two-year period and £35,500 in respect of the 16-month period.
75. The Claimant's updated schedule of special damages claims certain expenses which I shall mention shortly but also claims loss of earnings and a sum in respect of alleged disadvantage on the labour market generally as a result of his prison term. I heard evidence from two employment experts. Mr Frost, on behalf of the Claimant and Mrs Brading on behalf of the Defendant. Having read their reports and listened to their evidence I was not satisfied that Mr Popat will suffer any persistent disadvantage in the labour market as a result of his wrongful incarceration. I do however accept that until he has acquired some employment record he may in some cases encounter unspoken prejudice. As Mr Frost pointed out the gap in his CV which covers the relevant period would be obvious to any potential employer and unless Mr Popat is to lie about what happened the problem will emerge at interview. However, I do not view this disadvantage as permanent rather as a factor which may make the start of his career a little more difficult. I would have considered £5,000 under this head to be an appropriate figure. The question of general loss of earnings is a little more difficult. Clearly Mr Popat lost two or three years earnings depending upon any holding of negligence. However, since earnings increase as a graduate pursues his career there is some knock-on effect which Mr Frost through his various tables attempted to quantify. It is this that explains the relatively high figures of £152,000 odd and £76,000 odd respectively which appear in the Claimant's schedule.
76. Mr Popat blamed his 2:2 degree upon a further unfortunate incident for which the Defendant was not in any way to blame. Nor, in my view, can his A level results be regarded as affected by the events in question. Based on these results and also the other academic assessments which were placed before me I do not consider it likely that Mr Popat will realise his ambition to become an actuary. However, he is a graduate with a respectable degree and any loss of earnings fall to be assessed on that basis. Mr Frost and Mrs Brading agreed a table of graduate earnings which I regard as appropriate to use for an assessment of two or three years earnings whichever hypothetically one was considering. In my view the reasonable way to assess a figure for loss of earnings due to his late start in employment is to take an overall view of his working life. Such a view must of course be realistic and not wholly theoretical. It must bear in mind the ordinary life contingencies. Mr Popat struck me as an intelligent individual and one with the potential to do well in life in whatever career he finally chooses. However, there is evidence before me which suggests that he has not to date displayed the determination to find employment that might be expected. In the end, Mr Frost's suggestion of a fair method of quantifying the knock-on effect of delayed higher earnings throughout his career was to take three years gross earnings looking at the career average of graduates. That is undoubtedly one method albeit a rough and ready one as Mr Newman accepted. There undoubtedly will be a real loss under this heading because until Mr Popat reaches approximately maximum earnings at about 36 years of age according to the table supplied, he will be earning that much less each year than if he had started two or three years earlier and that loss is in addition to simply compensating for the two or three years total loss of earnings due to imprisonment. However, in capitalising such sum the court must allow a deduction for accelerated receipt. Further, all this depends upon precisely what Mr Popat chooses to do in the future, how vigorously he pursues his aims, and generally how successful he is. Mrs Brading identified a factor which might even help Mr Popat, namely that he would be older and more mature and that arguably more attractive to certain employers. Also, that factor might enable him to catch up more quickly. In all, the best I can do is to give a round figure which, based on the evidence that the two experts have helpfully placed before me, fairly represents compensation for this aspect of loss of earnings. My figures would be £20/30,000 respectively for two or three years.
77. As to the expenses claimed in the schedule a significant sum claimed for loss of university fees and grant was not pursued. The other items were only challenged on the basis that Mr Popat had not himself, or did not in evidence expressly state that he himself had paid for them, the inference being that his father had paid. I accept the inference but since these items were paid on Mr Popat's behalf I would regard them as appropriately claimed and thus recoverable.