Ebanks v. R. (The Cayman Islands) [2006] UKPC 16 (27 March 2006)

Privy Council Appeal No 11  of 2005

Kurt Fabian Ebanks
Appellant
v.

The Queen
Respondent

FROM

THE COURT OF APPEAL OF
THE CAYMAN ISLANDS
- - - - - - - - - - - - - - - - - 

JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 27th March 2006
- - - - - - - - - - - - - - - - - 

Present at the hearing:-

Lord Rodger of Earlsferry
Lord Steyn
Lord Carswell
Lord Mance
Sir Swinton Thomas

- - - - - - - - - - - - - - - -

[Majority judgment delivered by Lord Rodger of Earlsferry]

1.	On the morning of 18 January 2000 the body of Curtis Seymour was found in a refuse disposal area near the Flowers Apartment complex off Walkers Road in George Town.  He had been stabbed to death.  In due course the appellant, Kurt Fabian Ebanks, and his co-defendant, Bryan Roland Powell, were tried for his murder before Henderson J sitting without a jury in the Grand Court.  Both defendants were convicted on 26 January 2001 and were sentenced to life imprisonment.  Both appealed to the Cayman Islands Court of Appeal and on 12 April 2002 the court (Zacca P, Rowe and Taylor JJA) dismissed the appeals in a judgment delivered by Rowe JA.  On 27 July 2004 the Board granted the appellant special leave to appeal as a poor person.

2.	At the hearing before the Board counsel for the appellant, Mr Froomkin QC, argued a single ground of appeal, that the appellant had been denied a fair trial by reason of the conduct of counsel who represented him at the trial, his barrister, Mr Philip St John Stevens, and his attorneys Mr David Thomas McGrath, Mr Gregory Link and Mr Neville W Levy.  In fact, as their Lordships go on to explain, there were really two interrelated aspects to the ground of appeal.

3.	At the trial the only evidence against the appellant came from a statement which he was alleged to have made to WPC Angela Campbell and DC Wayne Powell on 17 February 2000.  In order to appreciate the significance of that statement it is necessary to look briefly at how the issues presented themselves at the trial.  The Crown proceeded on the basis that on the night in question both the defendants had participated in a jointly planned robbery of Curtis Seymour and that both had participated in stabbing him to death in his taxi in the early hours of 18 January.

4.	At the trial Powell admitted that he had stabbed Seymour, but in evidence claimed that, at the time when the stabbing occurred, he had been alone in the taxi with Seymour.  According to Powell, they drove to the Flowers Apartments ostensibly to get some drugs.  When they got there, Seymour asked him for money which Powell owed him for drugs which had been stolen from him before he could sell them.  Powell had no money and Seymour drew a knife.  In the ensuing fight Powell stabbed Seymour in self-defence.  For reasons which he explained in his judgment Henderson J accepted Powell’s  evidence that he had stabbed Seymour and caused his death, but rejected the rest of the account which he had given in evidence.  The judge accordingly convicted him of murdering Seymour.

5.	If the judge had accepted the version of events given by Powell at the trial, it would have exonerated the appellant Ebanks, since on that version he was not even present in the taxi when Seymour was killed.  Not surprisingly, therefore, at the trial counsel for Ebanks did not cross-examine Powell when he gave evidence.  In the result, however, since the judge disbelieved Powell, his evidence was of no assistance to Ebanks.  But equally, of course, the rejection of the account given by Powell in evidence did not prejudice the position of Ebanks.  It was still necessary for the Crown to prove their case against Ebanks on evidence which was admissible against him.  The only such evidence came from the statement which WPC Campbell and DC Wayne Powell said that he had made to them on 17 February.  At the trial the admissibility of their evidence about the alleged statement was challenged, first, in a voir dire on 15 and 16 January 2001, in which defence counsel “put the Crown to proof as to the voluntariness of the … remarks recorded by” the officers in question.  The police officers gave evidence and were cross-examined.  In the course of their evidence they spoke to the terms of the statement which they said that Mr Ebanks had made.  After they had given their evidence and had been cross-examined, the judge asked Mr St John Stevens whether he was calling any evidence on the voir dire and he replied “My Lord, I am not.  Thank you.”  Mr Ebanks was present when he said this.  The judge heard legal submissions on the admissibility of the evidence on 17 January.  In particular, counsel argued that the evidence had been obtained by an inducement.  The judge rejected that argument and also rejected an argument that the appellant should have been given a further caution before the statement was taken.  He also rejected certain other arguments presented on behalf of the appellant, including an argument that he should exclude the evidence on the ground that the confession had been obtained unfairly.

6.	After the trial judge had given judgment to this effect, Mr St John Stevens indicated that he did not accept that, in these circumstances, the evidence of the statement should be admitted.  He wished to raise a further matter as to the circumstances in which Mr Ebanks had been arrested and held in custody.  In effect, he asked for a further voir dire on that point.  The judge pointed out that it was unusual, to say the least, for there to be a further voir dire in relation to a statement which he had already ruled should be admitted in evidence.  But, in view of the serious nature of the charge and the importance of the evidence, the judge declared a further voir dire and heard evidence from two police officers in relation to that matter.  Again, at the conclusion of the Crown evidence, and in the presence of Mr Ebanks, his counsel announced that he was not calling any evidence.  Having considered the evidence given on the voir dire, the judge again held that the evidence of the statement taken by WPC Campbell and DC Wayne Powell was admissible.  Counsel for the Crown and for the defence agreed that the evidence given in the voir dire need not be repeated and the evidence in chief and the cross-examination became part of the evidence in the main trial.  The judge gave counsel for the defence an opportunity to ask additional questions.  Counsel for Powell did so, but when his turn came, Mr St John Stevens took a moment to make sure that Mr Ebanks understood that counsel were adopting the cross-examination from earlier.  In the light of that, he then announced that he had no further questions.

7.	According to the police witnesses, in his statement Mr Ebanks accepted that he had taken part in a joint robbery of Curtis Seymour and, in particular, that at one point he had passed a knife to Powell which Powell had then used to stab Seymour.  While recognising the dangers of accepting Mr Ebanks’ confession because of the way it was taken, Henderson J was sure that it was true.  In particular, he was satisfied beyond a reasonable doubt that Mr Ebanks did hand Powell the knife knowing that it would be used by Powell to kill Seymour and thus eliminate him as a witness to their robbery.  On that basis the judge held that Mr Ebanks had aided and abetted Powell in the killing of Seymour and convicted him of murder.  In the hearing of the appeal before the Board it was not disputed that the judge had been entitled to convict Mr Ebanks in this way if he admitted and accepted the relevant part of his alleged confession.

8.	On 9 February 2001 the agents who had conducted the trial on his behalf gave notice of an application for leave to appeal against conviction on the ground that the conviction was unsafe and unsatisfactory and indicated that full written grounds would follow.  At some point after that, however, Mr Ebanks instructed another attorney, Mr Schofield, to act for him and on 22 October Mr Ebanks swore an affidavit about the conduct of counsel at this trial.  On 24 October 2001 Mr Schofield gave notice that Mr Ebanks was applying to the Court of Appeal to have his affidavit received in evidence.  At the same time he lodged amended grounds of appeal alleging in particular that he had “continually and consistently instructed each of his defending counsel that he had not made the alleged statement and that it was a fabrication by the police officers” and that the failure to call him to testify on the voir dire proceedings, in defiance of or without proper instructions, “was a failure of judgment so fundamental in nature that the appellant was deprived of due process of law and did not receive a fair trial.”  On 2 November he lodged amended grounds of appeal in which he alleged that the conduct of counsel discouraged, impeded and prevented the appellant from testifying that he did not make the statement alleged, resulting in a material irregularity in the course of his trial.

9.	Thereafter, Mr Ebanks Having waived confidentiality, the attorneys who had acted for Mr Ebanks at his trial swore affidavits which were lodged with the Court of Appeal shortly before the hearing of the appeal on 23 November 2001.

10.	In his affidavit the appellant said that he did not give the statement that the police officers had testified to at his trial:  they both lied to the court.  He continued, at paras 11-13:

“11.	When the voir dire started concerning my statement, I was expecting Mr St John Stevens to charge right at the two police officers who were lying and try to discredit them.  But he didn’t. and he kept telling me, ‘This way is better.  They gave you a truncated form of your rights.’  He also kept saying to me, ‘You’ve told me that you did not make the statement, but I’m going to attack it this way.  They kept you in custody too long without charging you.  I’ll get the statement thrown out because of oppressive conduct.’  Never once did he put to the officers the fact that I didn’t make the statement at all.  I sat in the court and listened to the two officers’ lies and kept thinking that I would have my chance to talk later. At all times I wanted to testify and tell the judge under oath what I have stated in this affidavit.  Then the time came and I was talked out of it by the two lawyers.  They made me think that they knew best and so I put all my trust in them.

12.  During the testimony of Angela Campbell, when I heard her lying about a number of things, I got upset and I raised my hand and said, ‘I want to testify.  I want to tell my side of the story.’  Mr Stevens jumped up and rushed back to me and said, ‘Be careful what you’re doing, Kurt.  They haven’t proven anything against you.  They’re not hurting you, they’re not hurting you, so relax and behave and keep quiet.  And don’t put yourself in the stand and give them a chance to cross-examine you.’  I told him, ‘I don’t have any problem going on the stand.  I’m not guilty of anything.  I don’t have anything to hide.’ He told me that if I took the stand and rebutted whatever the officers were saying the judge would more than likely believe them over me and in doing so my ground of appeal ‘would be thrown out the window’.  If I didn’t testify, they would have a chance for an argument on the appeal.  Mr Stevens said that was the best way to approach the case.

13.  At lunch time on that day, Mr McGrath came to see me about taking the stand.  Mr McGrath did not actually part much part in my trial.  He was not in court every day and it was Mr St John Stevens who conducted my defence.  On this day, Mr McGrath gave me the impression that Mr Stevens had sent him to talk to me.  He said, ‘This is the turning point in your case.  We have to make a tactical decision.  I know you were adamant from day one that you gave no statement to the police officers.’  I said, ‘Yes, sir.’  Then he said, ‘It will be better to approach the case this way since nothing is damaging you.’  He just talked and talked and I got confused and thought, ‘Well, he’s the lawyer’, and he talked me out of testifying.  Because of that, the judge never got to hear what was the most important thing and that was that those two police officers fabricated a statement that I never made to them.  Because of that statement, I have been convicted of a murder I did not commit and had nothing to do with.”

11.	In his affidavit in reply, Mr McGrath said this, at paras 4-10:

“4.	From a very early stage the appellant’s instructions were firm and unequivocal in a number of regards:

(i)	He would contest the allegation;

(ii)	He would elect trial by judge alone;

(iii)	He disputed the making of the alleged confession;

(iv)	At no stage in the proceedings would he give evidence.
5.  	The appellant alleges that his case was presented in defiance of his instructions.  This is untrue.  The conduct of the case at trial was entirely consistent with the appellant’s particular instructions.  Whilst it is correct to say that no positive case was ever put in relation to 4(iii) above this was upon the appellant’s instructions.

6.  	The appellant’s instructions that he would not give evidence in the proceedings remained a central tenet of his position throughout.

7.  	The consequences of his not giving evidence were discussed in great detail with the appellant, both prior to the arrival of leading counsel and in the presence of leading counsel.  The decision not to give evidence in the trial created tactical considerations and decisions for the appellant.

8.  	I explained to the appellant and advised him how this decision might affect his trial.  I was present when leading counsel advised the appellant how this might affect his trial.  I am satisfied that the appellant understood the advice and that he understood the implications of his decision not to give evidence.

9.  	The appellant chose to challenge the alleged confession on the basis of its admissibility.  Upon instructions it was argued on the voir dire that the Crown could not satisfy the tribunal to the requisite criminal standard that what the police officers alleged had been said had been said voluntarily.  I am satisfied that the appellant understood the advice offered and the instructions he was providing in relation to the conduct of the voir dire.

10.  	On the voir dire the learned trial judge ruled against the appellant and in favour of the Crown in relation to the submission that the alleged confession should be excluded.  The potential consequences of such ruling had been discussed and were discussed with the appellant before and during the trial.  Because he would not give evidence the appellant chose not to put his case about not making the confession to the police officers in the course of the trial proper.  This was a topic which was discussed with him in some detail.  I am satisfied that the appellant was aware that, having provided such instructions, the only triable issue for him would be the admissibility of the alleged confession.”

In relation to para 11 of Mr Ebanks’ affidavit, Mr McGrath said this, at para 13:

“Paragraph 11 of the affidavit is not true.  Mr St John Stevens was instructed to challenge the admissibility of the alleged admission on the voir dire.  At no stage did the appellant indicate to me any desire to testify in the proceedings.  I did not ‘talk him out of it.’  I explained to the appellant on many occasions that the decision whether to give evidence or not was his and his alone.  I explained that he could not be compelled to give evidence, neither could anyone stop him from giving evidence.  Mr St John Stevens did not, as far as I am able to say, put any undue influence or pressure upon the appellant not to give evidence.”

Finally, in para 15 Mr McGrath said:

“I did have many conversations with the appellant in the cells during the course of his trial.  Mr St John Stevens did communicate to me that the appellant had become upset in the dock during the proceedings and there had been a short adjournment.  The words which the appellant attributes to me in paragraph 13 of his affidavit are inaccurate in detail and in substance.  At no stage did I say or would I say ‘We have a tactical decision to make.’  I made it clear at all stages that the decision about testifying, as well as other substantial decisions were matters for the appellant and not matters for me or for leading counsel.  I did not talk the appellant out of testifying.  There was never any change of instructions in relation to the appellant’s decision not to give evidence, nor in relation to the way he wished his case to be conducted.”

12.	In his affidavit in reply Mr St John Stevens explained the general position in this way:

“I was instructed by Mr David McGrath of Quin & Hampson.  Mr McGrath informed me that, inter alia, the appellant was contesting the matter, he did not wish, indeed would not give evidence and that he would elect a ‘judge alone’ trial.  In the week before the trial commenced I conducted a conference at HMP Northward with the appellant and Mr McGrath. I confirmed the instructions that the appellant would not give evidence at any stage.  I explained fully the ramification of not giving evidence, the tactical considerations and how he wished his trial to be run.”

In relation to the allegation that the defence had been presented in defiance of, or without proper, instructions, Mr St John Stevens said this:

“2.1  The appellant’s case was presented in accordance with and upon clear and unequivocal instructions.

2.2  I am satisfied that at each material stage both before and during the trial the appellant’s instructions that he would not himself give evidence was unequivocal.

2.3  I am satisfied that those instructions were given and confirmed after the ramifications of not giving evidence, whether it be during the voir dire or the trial, had been explained in detail by myself and David McGrath both together and independently, and that the appellant fully understood that advice.

2.4  The ramifications of not giving evidence was discussed and advice given in the context of, the voir dire the trial and potential grounds of appeal.

The appellant’s instructions were that the Crown should be put to proof as to establishing that the confession in issue was made voluntarily and that no positive case would be put over and above this issue.”

In conclusion Mr St John Stevens said:

“These ‘bedrock’ instructions did not change.  Up to the time of verdict, the learned judge ‘retired’ for three days to consider his judgment, the appellant was quite satisfied with the conduct of his defence and understood the avenue of appeal.

I am satisfied that the appellant’s case was presented in accordance with and upon clear and unequivocal instructions.

I am satisfied that the instructions were given upon careful consideration both before and during the trial and that advice was fully understood.

I am satisfied from all I have seen, heard and read that the appellant’s instructing attorney acted at all times with and upon proper instructions.”

13.	Mr Link was not able to add much, but confirmed that it was his understanding that the appellant instructed Mr McGrath and Mr St John Stevens that he would not give evidence at his trial and that he was not aware of any change in the appellant’s instructions in relation to his giving evidence.

14.	The affidavit made by Mr Ebanks shows that he really complains about two separate but inter-related features of the conduct of his counsel at the trial.  The first is that, although he wanted to give evidence in order to say, in particular, that he had not made the statement attributed to him by the police witnesses, counsel in effect prevented him from doing so.  The second is that counsel did not cross-examine the two police witnesses to the effect that they were lying and that the appellant did not make the statement to which they spoke in evidence.  On behalf of the Crown Mr Perry did not dispute that, if counsel had defied Mr Ebanks’ instructions in either way, he would have been guilty of professional misconduct which would in effect have led to a denial of due process, with the result that the verdict would have to be quashed:  R v Clinton [1993] 1 WLR 1181, 1187H – 1188A per Rougier J and Boodram v The State [2002] 1 Cr App R 103, 118 – 119, per Lord Steyn.  The courts have stressed that cases where counsel has failed in this way are likely to be rare.  Moreover, it is important to remember that, as Lord Hobhouse of Woodborough said in R v Pendleton  [2002] 1 WLR 72, 90, para 36:

“Unless and until the Court of Appeal has been persuaded that the verdict of the jury is unsafe, the verdict must stand.  Nothing less will suffice to displace it.  A mere risk that it is unsafe does not suffice:  the appellant has to discharge a burden of persuasion and persuade the Court of Appeal that the conviction is unsafe.”

On this basis the Board turns to consider the position in this case.

15.	As Mr Froomkin emphasised, while Mr McGrath specifically acknowledges that from the outset the appellant’s position was that he disputed making the statement to the police officers, Mr St John Stevens does not address that issue.  To that extent there could be said to be a difference between the two principal affidavits for the trial lawyers.  The significance of that difference is less than might at first sight be thought, however, since, according to Mr McGrath, even though that was the appellant’s position, he was equally adamant from the outset that at no stage in the proceedings would he give evidence.  In that situation, according to Mr McGrath, while it is correct to say that no positive case was ever put in relation to the allegation that he had not made the statement, this was upon the appellant’s instructions.  This is consistent with Mr St John Stevens’ position that the appellant’s instructions were that no positive case would be put over and above the issue of the voluntariness of the confession.

16.	Their Lordships note from paras 11 and 13 of his affidavit that Mr Ebanks’ contention is that he had wanted to give evidence to say that he had never given any statement to the police, but had been talked out of it by his counsel who advised him that it was preferable for him not to expose himself to cross-examination and to rely on the approach which they were adopting.  None the less he accepts that at the trial his ultimate position was that he would not give evidence in the voir dire.  The evidence of Mr McGrath and Mr St John Stevens is, of course, also that Mr Ebanks’ instructions were that he would not give evidence in the voir dire or indeed at any other stage in the trial.  To that extent, therefore, there is common ground between Mr Ebanks and his counsel.  The difference between them is that, according to Mr Ebanks, his underlying position was that he wanted to give evidence but was persuaded not to, whereas Mr McGrath and Mr St John Stevens say that, from the very outset, Mr Ebanks insisted that he would not give evidence and that, even though the matter was fully discussed with him, this remained his position.  It was a given of the situation that the trial had to be conducted on the basis that Mr Ebanks would not give evidence.

17.	It is unfortunate that there should be any room for doubt about the position.  The decision whether or not to give evidence is always ultimately one for the defendant himself after receiving appropriate advice from counsel:  cf the Bar of England and Wales, Written Standards for the Conduct of Professional Work, para 11.4.  But the decision not to give evidence is one of such potential importance that it has long been recognised that it should be recorded in writing.  Watkins LJ explained the position in this way in R v Bevan  (1993) 98 Cr App R 354, 358:

“One criticism has, however, to be levelled at learned counsel.  It is to be hoped that all counsel will heed what we now say.  When the decision is taken by a defendant not to go into the witness-box, it should be the invariable practice of counsel to have that decision recorded and to cause the defendant to sign the record, giving a clear indication that (1) he has by his own will decided not to give evidence and (2) that he has so decided bearing in mind the advice, if any, given to him by his counsel.  That certainly was the practice in the days when the members of this Court were practising at the Bar.  It should never have been departed from.  It is our firm view that if the practice has fallen by the wayside, it should be restored to its former prominence and become invariable once again.”

More recently, in R v Chatroodi [2001] EWCA Crim 585, at paras 39 – 40,  Pitchford J repeated the warning:

“39.  As long ago as 1993 Watkins LJ, giving the judgment of this Court in R v Bevan 98 Cr App R 354 said that it should be the invariable practice of counsel to record any decision of a defendant not to give evidence, signed by the defendant himself, indicating, clearly, that the decision has been made of his own free will, and that in reaching that decision he has borne in mind advice tendered by counsel.  We are bound to express some dismay at the knowledge that comparatively senior counsel, advising a client not to give evidence, notwithstanding the provisions of section 35 of the Criminal Justice and Public Order Act 1994, was unaware of this obligation.

40.  While we would not expect counsel to record every detail of every conference between himself and his client, we would expect some written record of a conversation relevant to the important question whether it was in the defendant’s interests to give evidence at his trial.  This court suffers the disadvantage, in the absence of such a record, of being required to evaluate the recollections of counsel, on the one hand, and the appellant on the other.”

The reasons which make the practice desirable apply with equal force in the Caribbean jurisdictions, as the Board made clear in Bethel v The State (1998) 55 WIR 394, 398.  The appellant had alleged that his counsel had acted improperly in several respects, including not permitting him to give evidence.  Lord Hoffmann recorded that their Lordships felt bound to say that:

“they are surprised that in a capital case no witness statement was taken from the petitioner or other memorandum made of his instructions.  In view of the prevalence of allegations such as those now made, they think that defending counsel should as a matter of course make and preserve a written record of the instructions he receives.  If this appeal serves no other purpose, it should remind counsel of the absolute necessity of protecting themselves from such allegations in the future.”

Although the Board was there dealing with a capital case, the practice is equally desirable in non-capital cases.  Since it appears that even experienced counsel are still failing to follow the practice, their Lordships wish to emphasise yet again that, where it is decided that the defendant will not give evidence, this should be recorded in writing, along with a brief summary of the reasons for that decision.  Wherever possible, the record should be endorsed by the defendant.

18.	Mr Froomkin submitted that the rule of practice was so important that, where it had not been followed, the appellant should be given the benefit of the doubt and an appeal court should proceed on the basis of his version of events.  Their Lordships would not accept that submission.  Rather, in the absence of any written record, an appeal court has to consider the respective accounts of the appellant and of his former counsel and evaluate them in the light of the other relevant circumstances.

19.	In carrying out that exercise the appeal court may well find it desirable to hear evidence from those concerned.  The Court of Appeal declined to do so in this case.  One submission made on behalf of the appellant was, accordingly, that the appeal should be allowed and the case should be remitted to the Court of Appeal to hear evidence before reconsidering the grounds of appeal.  But there may be cases where, having regard to the surrounding circumstances, the court feels able to resolve the dispute without hearing evidence.  The question is whether, without hearing such evidence, the appeal court can be satisfied that the verdict is safe.

20.	So far as the matter of Mr Ebanks not giving evidence is concerned, the only question is whether counsel in effect forced him, against his will, not to go into the witness box.  Their Lordships notice that there is nothing to suggest that Mr Ebanks made any protest about this during the trial.  Nor is there anything to suggest that, even shortly after the trial, he complained to any fellow prisoner, or court official or prison officer.  The first time that such a complaint emerges is some nine months later in his amended grounds of appeal dated 24 October 2001 and in his affidavit dated two days earlier.  Of course, the delay in making the complaint does not show that it is unsound, but it is a factor to be taken into account.  An appeal court must always bear in mind the distinct possibility that such a complaint may be fabricated – indeed that is precisely why there should be a contemporaneous written record of the decision that the defendant is not to give evidence.

21.	More importantly, however, the appellant’s allegation is really that, on this critical matter, as well as on the matter of cross-examining the police witnesses, counsel overrode his instructions.  But that allegation is wholly inconsistent with the picture which emerges from the record of the trial itself where on several occasions Mr St John Stevens took time to ensure that the appellant understood and agreed to the step which was being taken on his behalf.  In para 6 of this judgment their Lordships have already drawn attention to one such occasion when, at the conclusion of the second voir dire, Mr St John Stevens took time to explain to Mr Ebanks that the cross-examination in the voir dire would, in effect, be held repeated in the main trial.  Earlier, during the evidence of Julie Harris, Mr St John Stevens had asked for a break of five minutes to seek clarification of a point – although this is not said explicitly, it appears likely that the clarification was to come from his client.

22.	At a slightly later point in the trial an issue arose as to whether the pastor to the Reverend Dee Dee Haines could remain in court during her evidence when she was likely to be asked about what Mr Ebanks had said to her.  The judge said that, since the confidentiality interest was enjoyed by Mr Ebanks, he would allow the pastor to remain if Mr Ebanks consented to it.  Mr St John Stevens asked to be allowed to take Mr Ebanks’ specific instructions on the point and then indicated that he had no objection to that course.  When the Reverend Dee Dee Haines eventually felt free to speak about what Mr Ebanks had said to her, her counsel said that he understood that Mr Ebanks consented to the disclosure of the conversation.  Mr St John Stevens then said that, while he understood that to be the position, in the light of the proceedings he would invite the judge to have Mr Ebanks in court and he, from his own lips, would waive that privilege.  The judge then had Mr Ebanks and Mr Powell brought into court and followed a procedure in which Mr Ebanks himself indicated that he consented to the Reverend Haines answering questions about his discussions with her.

23.	On another occasion, when prosecuting counsel announced that his next witness was going to be Colin Pryce, Mr St John Stevens asked whether he might just take instructions from his client – and was allowed to do so.  Later on, after the appellant’s brother, Dwene Ebanks, had given his evidence in chief and had apparently dealt with certain matters which had not been mentioned in his statement, counsel for Powell asked for a moment to consult his client and Mr St John Stevens asked if he could take instructions at the same time.

24.	It is also noticeable that when the judge reserved his judgment and proposed to give it at a time after Mr St John Stevens was due to fly back to the United Kingdom, Mr St John Stevens none the less recognised that he should be present.  And, in the event, he was indeed present at the short hearing even though, of course, there was little which he could say on behalf of Mr Ebanks when he was convicted of murder.

25.	These passages in the record suggest that, so far from being uncaring or cavalier about Mr Ebanks’ views, instructions and interests, Mr St John Stevens was careful to consult his client whenever appropriate.  It would make absolutely no sense to suppose that when he had taken care in these relatively minor matters, he had simultaneously been riding roughshod over Mr Ebanks’ views as to whether he should give evidence.  Moreover, it is extremely difficult to see why counsel would have deliberately flouted a desire on Mr Ebanks’ part to give evidence when the lack of any evidence from him was likely to cause potential difficulties, especially in the voir dires.  In these circumstances their Lordships are satisfied that, although counsel culpably failed to have the matter recorded at the time, they can accept the evidence of Mr McGrath and Mr St John Stevens that they were following Mr Ebanks’ instructions in not calling him to give evidence.

26.	The second, and related, allegation is that counsel failed to put to the police officers in the voir dire Mr Ebanks’ contention that he had never made the alleged statement and so deprived him of the essence of a fair trial of the case against him.  The Court of Appeal rejected that allegation on the following basis:

“It would have been most improper for defence counsel to have suggested to prosecution witnesses WPC Campbell and DC Powell that they were lying and had fabricated the account that they were giving unless defence counsel were prepared to call Ebanks as a witness.  This much would have been clear to Ebanks and that is why his defence was conducted in a way that no positive case was put forward on his behalf.”

The idea that it is wrong for counsel to put an allegation to a police officer or other witness that he or she is fabricating a statement allegedly given by the defendant unless counsel intends to call the defendant to give evidence to back up the allegation finds support in the older authorities.  In R v O’Neill  (1950) 34 Cr App R 109, 110 – 111, having referred to the defence allegation that the alleged statement had been pummelled and beaten out of the defendant, Lord Goddard LCJ said:

“However, what the Court desires to call attention to is this: having suggested this in cross-examination to the police, and having repeated the suggestion before the jury, counsel did not call his client to support what he had been instructed to say, and the Court has no hesitation in saying that that is not the proper practice.  It is one thing to cross-examine a witness about credit, in which case one is bound by the answer of the witness.  It is quite wrong and improper conduct on the part of counsel to make a charge against the police or against any other witness by way of defence – because, of course, it would have been a defence if the statements which were the principal evidence against the applicants had been extracted from them by improper means – if he does not intend to call his client to give evidence to support the charge.

In this case, a violent attack was made on the police.  It was suggested that they had done improper things, and indeed, Ackers repeats that suggestion in his notice of appeal.  The applicants had the opportunity of going into the box at the trial and explaining and supporting what they had instructed their counsel to say.  They did not dare to go into the box, and, therefore, counsel, who knew that they were not going into the box, ought not to have made these suggestions against the police.  It is one thing to cross-examine properly and temperately with regard to credit, though it is very dangerous to do so unless you have material on which to cross-examine, and with which you can confront the witness.  It is, however, entirely wrong to make such suggestions as were made in this case, namely that the police beat the prisoners until they made confessions, and the, when there is the chance for the prisoners to substantiate what has been said by going into the box, for counsel not to call them.  The Court hopes that notice will be taken of this, and that counsel will refrain, if they do not intend to call their clients, from making charges which, if true, from a defence but which, if there is nothing to support them, ought not to be pursued.”

27.	In R v Callaghan (1979) 69 Cr App R 88, 91 Waller LJ, giving the opinion of the Court of Appeal, singled out the case of an attack on the police and attacking the admissibility of a statement as being one which is directly made as between the defendant and the officer and “it ought not to be made unless evidence is going to be called to support it.”  Waller LJ quoted the passage from O’Neill and added at p.92: 

“This Court entirely agrees with those observations.  It does not seem to us there has been any change in circumstances since that decision was made which would justify some different ruling being made.  We would entirely agree with them….”

28.	Very unusually, however, about a year later, Waller LJ, sitting in the Court of Appeal, Criminal Division, made a statement relating to his judgment in Callaghan:  The Times, 20 February 1980.  According to the report,

“His Lordship said that it appeared that there was an aspect of the problem which did not then occur to him.  That had been brought to his attention by the professional conduct committee of the Bar.  From time to time there might be a case where a client required a challenge to be made to a police officer but at the same time refused to go into the witness box to support that challenge because of his very bad record.  Such a case should be wholly exceptional.

In such circumstances counsel had a difficult decision.  He must warn his client that he judge would probably make a very strong comment on his client’s failure to support the suggestions on oath in the witness box.  If nevertheless the client, having been warned, insisted, then counsel must carry out his instructions even though he was aware that his client would not support his cross-examination.  His client could not complain if a strong comment was made from the Bench.

His Lordship was making a statement now, but at some future time, when a suitable case occurred, it would be possible to modify the dictum which he made in R v Callaghan.”

Referring to this statement, the current (sixteenth) edition of Phipson on Evidence (2005), para 12-30 at page 330 comments:  “It is submitted that now, as then, counsel’s duty is to put the defendant’s case, whether or not he intends to call evidence to support it.”  See also Blackstone’ Criminal Practice 2006, para F7.10.

29.	Their Lordships have no doubt that, having regard not only to the basic duties of counsel towards his client but also to counsel’s responsibilities to the court, Waller LJ’s statement in February 1980 correctly describes the position.  Plainly, the statements in O’Neill and Callaghan proceeded, in part at least, from a fear that counsel for defendants might inflict severe damage on critical prosecution witnesses while the defendants themselves remained out of the witness box and so avoided the risks of cross-examination by prosecuting counsel.  If, however, the police officers have indeed been lying, then there can be no proper objection to cross-examination which successfully exposes those lies, even if the defendant does not subsequently go into the witness box to give positive evidence about those lies.  On the other hand, the reality is that, if the police officers robustly reject the imputations against them, such allegations will usually carry little weight with the jury unless the defendant backs them up by giving evidence.  And, as Waller LJ pointed out, if the defendant fails to do so, the judge will be fully entitled to make a strong comment on that failure.  In this way, the law balances the interests of the defendant, in having his case put to the witnesses, and the interests of the public in ensuring that, when considering their verdict, the jury are fully aware of the factors relevant to assessing the evidence of the police officers and any challenges to that evidence.

30.	On behalf of the Crown Mr Perry did not suggest that there were any social, professional or other factors which meant that the position in the Cayman Islands should be different from that in England.  And indeed their Lordships are unable to see any reason why it should be.  In these circumstances Mr Perry did not support the approach adopted by the Court of Appeal.  Their Lordships are equally unable to endorse that approach.  Even if Mr Ebanks had all along said that he would not give evidence, that would not, of itself, have been a reason why counsel could not have cross-examined the police officers to the effect that he had not made the statement, if Mr Ebanks’ instructions were that counsel should do so.  Indeed, as a matter of proper professional practice, he would still have been bound to do so.

31.	The point does not actually arise in this case, however, since there is nothing in the affidavits of counsel to suggest that Mr St John Stevens proceeded as he did because he thought that it would have been professionally improper to suggest to the police witnesses that Mr Ebanks had not made the statement when Mr Ebanks was not going to give evidence to back it up.  So the Court of Appeal really proceeded on a basis for which there is no foundation in the attorneys’ affidavits.  In fact, the position taken by Mr McGrath and Mr St John Stevens in their affidavits is simply that the allegation was not advanced because Mr Ebanks instructed that it should not be.  According to counsel, Mr St John Stevens was instructed to go no further than he did in cross-examining the police officers:  in particular, he was not to suggest that the police officers were lying when they said that he had made the alleged statement.  Mr Ebanks says that, on the contrary, he expected counsel to go on the attack and to confront the witnesses with his contention that they were lying and had invented the statement.  On his version of events, counsel defied his instructions.

32.	Again, their Lordships note that this allegation did not surface until some eight months after the trial.  And, again, the Board notes that the allegation is hard to square with the obvious care taken by Mr St John Stevens to obtain his client’s instructions at various points throughout the trial.  Moreover, Mr Ebanks advances no reason why counsel should have chosen to flout his instructions on this matter, which by no means simplified the presentation of the defence case, especially in the voire dires.  On the other hand, the line which counsel adopted in the voir dires was consistent with the instructions which they say that he had given them:  standing those instructions, the only thing that they could try to do was to have the statement excluded on the grounds which Mr St John Stevens advanced and argued with great care, as is obvious from the transcript of the submissions made to the judge.

33.	It is not possible to say why Mr Ebanks decided not to give evidence and to limit the scope of counsel’s attack on the police evidence.  It may be that he was not confident of withstanding cross-examination by prosecuting counsel.  It may be that he thought it better tactically not to challenge the evidence of the police officers head-on.  It may be, as Mr Perry suggested, that his overall strategy was to keep as low a profile as possible and to rely on Powell’s evidence that Ebanks was not present when he killed Curtis Seymour.  This would be consistent with the way in which counsel for Powell went first in cross-examination, even though Mr Ebanks was named first on the indictment.  Whatever the reasons may be, their Lordships are satisfied that Mr St John Stevens acted in accordance with his client’s instructions at the time.  Having been convicted, Mr Ebanks may now have come to believe that his instructions were different.  But there is no adequate basis for holding that counsel acted improperly.  On the contrary, the record suggests that, as the judge considered, like the other counsel Mr St John Stevens had paid diligent attention to the preparation of the case.

34.	For these reasons, even although there is a conflict on the affidavits, even without any further evidence being taken, their Lordships have been able to satisfy themselves that the verdict of the trial court is safe.  They accordingly dismiss the appeal.

Dissenting judgment by Lord Steyn

35.	The Court of Appeal was faced with a single ground of appeal on behalf of the Appellant Ebanks, who was represented by new counsel. That ground was to the effect that the Appellant had been denied a fair trial by the conduct of counsel who represented him at trial. 

36.	There was no complaint directed at the conduct of the trial by the judge. The ground of appeal was based on an affidavit sworn on 22 October 2001. In that affidavit the Appellant stated quite unambiguously that he told his trial counsel that the police fabricated evidence against him to the effect that he admitted complicity in the murder.  In his affidavit he denied ever making such a statement.  But despite what he told his counsel, it was never put to the police witnesses that they fabricated evidence against the Appellant.

37.	If the Appellant’s version of what transpired between him and counsel was true, or might have been true, his trial was not properly conducted and the appeal had to succeed. About that there can be no doubt.  However, there was conflicting affidavit evidence. On 15 November and 21 November 2001, Mr McGrath and Mr St. John Stevens, who were trial attorneys, swore affidavits in which they asserted that they acted in all respects in accordance with the Appellant’s instructions.  Mr McGrath did, however, specifically state that “He [the Appellant] disputed the making of the alleged confession.”  That was, of course, consistent with the core allegation in the affidavit of the Appellant.  On the other hand, Mr St John Stevens did not directly address this point in his affidavit.

38.	In the judgment of the Court of Appeal Rowe JA stated:

“The Court did not permit viva voce evidence from Ebanks to supplement his affidavit.  He had filed no affidavit in response to those from his former attorneys although there was opportunity for him to do so had he so wished”.
	
That is the sole ground upon which the Court of Appeal rejected an application to hear viva voce evidence.  This was an astonishing ground upon which to refuse to hear viva voce evidence in this case.  After all, Mr McGrath’s affidavit was only served eight days before the Court of Appeal hearing, and Mr St. John Stevens’ was served a mere two days before the hearing.  And it is to be noted that decision of the Court of Appeal was only delivered on 12 April 2002, i.e. more than four months later.  In any event, at the very least on the affidavit evidence there was a clear dispute of fact.  So far as there was ambiguity it was due to the fact that Mr. St. John Stevens (unlike Mr McGrath) did not directly address the core point in the Appellant’s affidavit i.e. that he told the attorneys that he never made any confession.

39.	In these circumstances the Court of Appeal erred in refusing to hear viva voce evidence, and the decision of the Court of Appeal should be quashed for failure to accord the Appellant due process. 

40.	The Court of Appeal did not refuse the application to hear viva voce evidence on the ground that oral evidence could not have altered the position. Nevertheless, I will consider this aspect.  Mutatis mutandis the following observations in Sir William Wade and Christopher Forsyth, Administrative Law, 9th Ed., (2005), at 506-508, are pertinent:

	“Where a fair hearing ‘would make no difference’
		
	Procedural objections are often raised by unmeritorious parties.  Judges may then be temped to refuse relief on the ground that a fair hearing could have made no difference to the result.  But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord Wright once said:

	‘If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice.  The decision must be declared to be no decision.’

	The dangers were vividly expressed by Megarry J, criticising the contention that ‘the result is obvious from the start’:

	‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’ 
	
	. . . Judges are naturally inclined to use their discretion when a plea of breach of natural justice is used as the last refuge of a claimant with a bad case.  But that should not be allowed to weaken the basic principle that fair procedure comes first, and that it is only after hearing both sides that the merits can be properly considered.”

Although made in the administrative law context, these observations are also germane to the question whether the Court of Appeal could have declined to hear oral evidence on the ground that it would make no difference.  To have decided the case on such a basis would have been unfair and contrary to due process.  After all, it is entirely possible (and even likely) that Mr St. John Stevens would have made the same core concession that Mr McGrath made, viz that the Appellant insisted that he made no confession to the police.

41.	It is necessary to consider the consequence of the hypothesis that the Appellant’s core allegation in his affidavit, viz that he told counsel that he did not make the confession, is or may be correct.  On this basis, trial counsel should have cross examined the police to this effect despite the fact that it had been decided not to call the Appellant to give evidence.  Again, Mr McGrath’s evidence supports this critical point.

42.	How then did the Court of Appeal address this issue?  The Court of Appeal observed:

On the affidavits before us we are completely satisfied that Ebanks took a deliberate, constant and continuous decision not to give evidence and instructed his counsel accordingly.  It would have been most improper for the defence counsel to have suggested to prosecution witnesses W.P.C. Campbell and D.C Powell that they were lying and had fabricated the account that they were giving unless defence counsel were prepared to call Ebanks as a witness. This much would have been clear to Ebanks and that is why his defence was conducted in a way that no positive case was put forward on his behalf.  He had decided to put the Crown to proof and notwithstanding full and appropriate legal advice, maintained that position throughout.

We were not persuaded that defence counsel for Ebanks failed to call him as a witness on the voir dire in defiance of or without proper instructions and accordingly we found no merit in his appeal.
							(Emphasis supplied).

It is now common ground that the Court of Appeal erred in law.  Legal principle dictates that counsel’s duty is to put the defendant’s case, whether or not he intends to call evidence to support.  The misunderstanding by the Court of Appeal may well have been widespread in Caribbean countries. That this “would have been clear to Ebanks”, as the Court of Appeal observed, is absurd.  But the Court of Appeal clearly thought that counsel did not put it to the police that they fabricated their version because he considered that it would have been improper to do so.  Indeed that is what Rowe JA said.  The Court of Appeal would have been in a position to have a local view of counsel’s perceptions of an advocate’s duty (mistaken as it was) in the given situation.  In any event this explains why counsel did not cross examine the police appropriately.  The failure to do so (when it was required) amounts in the circumstances to a material irregularity.  It potentially prejudiced the Appellant’s defence.  And it is impossible to say that, absent the irregularity, the jury would inevitably have convicted. 

43.	For these reasons, as well as the additional reasons given by Sir Swinton Thomas, I feel compelled to dissent in this matter.  I would quash the conviction and order a retrial or, alternatively, order a remission for the reconsideration of the issue by the Court of Appeal.

Dissenting judgment by Sir Swinton Thomas

44.	I entirely agree with the dissenting judgment of Lord Steyn. I would like to add two further points which, in my view, strengthen the case that the Court of Appeal in the Cayman Islands were wholly wrong in refusing to hear viva voce evidence in this case.

(1) No written statement from the defendant or any defence witness was produced before the Court of appeal despite the Defendant’s waiver of privilege. Accordingly, neither they nor we had any written document setting out his case or his instructions in the case. We do not know even whether a statement was taken from him. It would certainly be very extraordinary indeed if, in a murder case, no statement was taken from the defendant. It is true that in the hearing before the Privy Council Mr Perry told us that a quantity of papers in the offices of the defendant’s solicitors in Grand Cayman had been destroyed in a hurricane, but we were not told that any statement from the defendant had been so destroyed and there was certainly no such evidence before the Court of Appeal. 

(2) In their affidavits the Defendants’ main Attorney, Mr McGrath, and his counsel, Mr St John Stevens, both stated that the defendant had given firm and clear instructions to them that he did not wish to give evidence. There is no written record to this effect and no signed disclaimer by the defendant. I find this very extraordinary, particularly in a murder case. I note that Mr St John Stevens is an experienced criminal practitioner practising from one of the leading criminal sets of chambers in London. It is certainly my belief that it is one of the basic tenets of criminal practice always to obtain a signed disclaimer from a defendant who does not wish to give evidence, and this is certainly in accordance with the law.

45.	In R v Bevan (1993) 98 Cr App R 354, 358, Watkins LJ said:

	“One criticism has, however, to be levelled at learned counsel. It is to be hoped that all counsel will heed what we now say. When the decision is taken by a defendant not to go into the witness box, it should be the invariable practice of counsel to have that decision recorded and to cause the defendant to sign the  record, giving a clear indication that (1) he has by his own will decided not to give evidence and (2) that he has so decided bearing in mind the advice, if any, given to him by his counsel.” 

46.	In R v Chatroodi [2001] EWCA Crim. 585 at [39] – [40] Pitchford J. giving the judgment of the court said: 

	“39. As long ago as 1993 Watkins LJ giving the judgment of this Court in R v Bevan 98 Cr App R 354 said that it should be the invariable practice of counsel to record any decision of a defendant not to give evidence signed by the defendant himself, indicating clearly that the decision had been made by his own free will, and that in reaching that decision has borne in mind the advice tendered by counsel. We are bound to express some dismay at the knowledge that comparatively senior counsel, advising a client not to give evidence, notwithstanding the provisions of section 35 of the Criminal Justice and Public Order Act 1994 was unaware of this obligation.

40.	While we would not expect counsel to record every detail of every confidence between himself and his client, we would expect some written record of a conversation relevant to the important question whether it was in the defendant’s interests to give evidence at his trial.”

47.	In the absence of such documentation it was essential that the Court of Appeal should test the position by hearing oral evidence. I should make it clear that I am not in any way suggesting that Mr Maguire or Mr St John Stevens was not telling the truth in their affidavit evidence. It would be quite wrong to do so when the evidence is untested. It was also, in my view, quite wrong for the Court of Appeal to reject the Defendant’s evidence out of hand without giving him the opportunity of having his case tested.

48.	For these reasons, in addition to the reasons given by Lord Steyn, I think that there is a real risk that there has been a miscarriage of justice in this case.

49.	Accordingly I would also quash the conviction and order a retrial or, alternatively, remit this issue to the Court of Appeal.