PRACTICE SUMMARY
Defence (90%), Prosecution (10%)
General Crime – Serious & Organised Crime - Fraud (Criminal) – Disciplinary & Regulatory – Health & Safety – Malicious Prosecution/Wrongful Arrest (Civil Jury Work).
David Etherington was elected this year by Chambers to his second five year term as its Head. He has been a member of these Chambers all his practising life. He is an all-rounder in criminal practice and in any year will be seen defending in both in major fraud cases and in important murder trials. As a junior he prosecuted substantial cases for the SFO and Revenue & Customs where he had a specialism in VAT. He has also acted in Malicious Prosecution cases in the civil jurisdiction.
He will happily provide on request a detailed summary of his principal cases from earliest days to now but notable defence cases in the last few years have been:
- Robinson – Largest Legal Aid Fraud in UK
- Bryan – Homicide (the so called London ‘cannibal’ case)
- Thomas – Fraud - Major SFO wine fraud
- Patel (R v O'Neill and ors) – The Pharmaceutical ‘cartel’ case
- Caunter - Murder - the Suffolk lay-by case
- Anderson – a ‘Trident’ gangland slaying involving a supergrass witness.
- B – attempt by the Prosecution to retry an acquitted defendant on fresh evidence of co-defendant.
- Williams – another ‘Trident’ case involving the same witness.
- Lewington the alleged extreme right-wing terrorist.
- N– a mother who tragically killed her two young children and attempted to kill the third.
- K – a disciplinary tribunal in which he appeared for a solicitor charged in respect of Miners’ Compensation Claims.
- Oboh – a London gangland case.
- Ali – a case turning on causation in Murder
- K – a major cheat on the Revenue
- A – a major mortgage inflation fraud (to be tried in 2011)
Other Work
Some clients are interested in and know of his long association with television drama and documentaries. He was for many years the legal adviser to the series
Kavanagh QC and
Judge John Deed. He has advised on numerous television programmes (dramatic and factual) and made the occasional appearance (such as in the Hypotheticals series). In 2007-8 he was the legal adviser and storyliner to the documentary programme
The Jury in which celebrity jurors tried a rape case in which highly trained actors assumed the roles of key witnesses together with genuine witnesses in expert areas on an unscripted theme he devised.
He carries on his interest in advocacy and the art of persuasion by training young advocates practising here and foreign advocates practising in the international criminal courts - work which he has always found enormously rewarding. He also lectures extensively on advocacy, ethics and procedure.
He was an elected member of the Bar Council over many years and has chaired the Professional Conduct Committee, the Legal Services Committee and the Professional Practice Committee of the Bar Council which, amongst other things, gives advice to barristers facing real-time ethical problems in a case.
He has been a Recorder of the Crown Court since 2000 and sits as a legal assessor to the The General Dental Council.
Combined with his own work over many years for the Bar’s Professional Conduct Committee, he has a wide knowledge of disciplinary and regulatory work. David is Chancellor of the Diocese of St Edmundsbury & Ipswich and is a member of the Ecclesiastical Judges’ Association.
David Etherington values team effort in a case. He believes the most important member of that team is the client and, whilst leading from the front and being prepared to give clear advice, he puts the relationship between himself and his junior, solicitor and client at the heart of successful practise.
PUBLICATIONS, LECTURES & SEMINARS
Co-authored with Linda Dobbs (now the Hon. Mrs Justice Dobbs DBE) a paper on Professional Ethics for Sweet & Maxwell (2003) and, also with her, an article on Witness Coaching as well as contributing a number of articles to the Criminal Bar Association magazine. He has lectured and taught over many years on advocacy, professional ethics & discipline and procedure and given seminars on advocacy.
ILLUSTRATIVE CASES
RECENT WORK, 2008 ONWARDS
R. v. S
Southwark Crown Court, December 2010.
THEFT
Defended: the practice manager of a consultant surgeon alleged to have appropriated in excess of £80,000 from taking cash payments. The prosecution followed a private investigation by the consultant and was based on an expert report by a chartered accountant. Questions of patient confidentiality and data protection and the late recognition that patients themselves needed to be contacted. Brought in to mount abuse of process challenge to the prosecution. Although the court refused the application the effect of the rulings sought and obtained during the hearings, especially relating to use of the expert report, was to cause the prosecution to have to offer no evidence against the defendant in January 2011.
Issue: the limit of expert assumptions over obtainable direct evidence in a criminal trial, the duties of the prosecution in handling confidential medical records, the role of victims in investigating offences themselves.
R. v. Mathew Ali
Central Criminal Court, October 2010.
MURDER
Defended: a young man already serving a prison sentence for Attempted Murder who, over two years after the act that led to that conviction, was charged with the consent of HM Attorney-General (following the abolition of the ‘Year and a Day’ rule) when the victim died of pressure sores potentially caused by paraplegia, itself caused by the original attack.
Issue: whether or not the victim’s own conduct in refusing or not cooperating with treatment broke the chain of causation. Mathew Ali was acquitted of Murder.
R. v. K
Croydon Crown Court, September 2010.
Defending: K was charged with a number of counts representing a cheat on the Revenue said to involve a web of false companies, false documents and false claims.
The case is continuing
R. v. A
Southwark Crown Court, continuing and due for full trial in Winter and Spring 2011.
Defending: The case involves the suggestion of fraudulent mortgage claims based on a web of entities and allegedly involving solicitors and a valuer.
The case is continuing
R. v. Jean-Paul Oboh
Central Criminal Court, July 2010.
MURDER
Defended: young man suspected of participating in a gangland murder and alleged to possess a coat containing the blood of the deceased and firearms residue. He fled the jurisdiction and returned voluntarily several years later.
Issue: the reliability of firearms residue, the ownership of the coat and his whereabouts during the attack and shooting. He was acquitted of Murder and convicted of Manslaughter.
R. v. N
Court: Central Criminal Court, July 2009.
CRIME/ ATTEMPTEDMURDER/MANSLAUGHTER (DIMINISHED RESPONSIBILITY
Defended: This was an extremely tragic case in which the defendant had killed her two young children and attempted to kill the third. Pleas to diminished responsibility were accepted in respect of the murders and she received a Hospital Order
Issue: mental state and degree of responsibility.
K
Solicitors’ Disciplinary Tribunal, March 2009
CONDUCT UNBECOMING A SOLICITOR
Responded: K was charged with various breaches of the Solicitors’ Code arising out of the Miners’ Compensation Scheme.
Issue: K’s degree of responsibility as a junior partner in what was a “cut-throat” hearing. Her responsibility was assessed at a considerably lower level.
R. v. Lewington
Court: Central Criminal Court, July 2009.
CRIME/TERRORISM
Defended: Mr Lewington was alleged to have been carrying incendiary devices with intent to commit a terrorist offence and having a ‘bomb factory’ in his Reading bedroom. He was alleged to have been seeking to injure the person or property of those he hated as an alleged neo-Nazi and right wing extremist.
Issue: intent.
R v Shakah Anderson
Court: Central Criminal Court, May 2009.
CRIME/MURDER
Defended: Mr Anderson was charged with Murder as part of a series of Trident investigations into gangland killings in North-West London. His case involved the use of a supergrass (himself previously convicted in an earlier trial – R. v. Bennett & Ors) as the principal prosecution witness. Anderson was acquitted.
Issue: identity, credibility of supergrass.
R v Palmer
Court: Chemsford Crown Court, Jan 2009.
CRIME/UNLAWFUL ACT MANSLAUGHTER
Prosecuted: The defendant was accused of dragging his partner over a railway track to evade a closed safety barrier. She was struck by an express train and killed instantly.
Issue: whether the deceased was a voluntary participant in the act.
R. v. Martin Foster
Court: Snaresbrook Crown Court, Dec 2008 and Court of Appeal, May 2009.
CRIME/CAUSING DEATH BY DANGEROUS DRIVING
Defended: Prominent city accountant charged with dangerous driving causing the death of a motorcyclist.
Issue: whether the accident was caused by a medical event or avoidable driver distraction (tending sick wife).
Court of Appeal: Appeal against immediate custodial sentence and its length. Sentence reduced and suspended.
R v Ajit Patel (part of R v O'Neill and ors/"Operation Holbein")
Court: Southwark Crown Court; Court of Appeal, House of Lords
Defending: This was an alleged ‘Pharmaceutical Cartel’. The case received final resolution by the trial judge on 2 February 2009, following refusal by the Court of Appeal to permit the Crown to appeal the trial judge’s refusal to allow the Crown to amend the indictment following an adverse ruling by the House of Lords.
Issues: This case has numerous issues which will be summarised in due course.
R. v. Donald Thomas & Ors.
Court: Southwark Crown Court, May-Aug 2008
CRIME/SERIOUS FRAUD
Defended: Mr Thomas, a businessman of impeccable character, was charged with a wine fraud. It was admitted he had lost money in the business. He had left the enterprise when he became dissatisfied with progress.
Issue: Knowledge; Participation; Withdrawal
Mr Thomas was charged with Conspiracy to Defraud following a failure by a company called Vintage Wines of St. Albans to supply American investors with suitable wines. The case was prosecuted by the Serious Fraud Office and involved consideration of whether there was a conspiracy, whether Mr Thomas had joined it and the issue of his lack of benefit. Mr Thomas was acquitted.
R. v. Powar
Court: Central Criminal Court, Jan 2008.
CRIME/HOMICIDE/MURDER
Defended: The defendant was convicted of beating to death an alleged rival gang member with a hockey stick outside the defendant’s house. The case involved the extensive use of anonymous witnesses.
Issue: Leave to Appeal granted on admissibility of anonymous witness testimony.
NOTABLE CASES FROM 2002 ONWARDS
R. v. Bouhaddou
Court: Central Criminal Court; Court of Appeal, 2006
Court of Appeal Reference:
CRIME/HOMICIDE/MURDER
Defended: Murder of schoolteacher in burglary by defendant on parole.
Issue: (In Court of Appeal) Appropriate minimum term when burglar seeking to evade capture, and not pre-armed, kills householder.
Mr Bouhaddou was charged with and convicted of the Murder of Robert Symons, a former school teacher. Mr Bouhaddou who was on parole for less serious offences, burgled Mr Symons’ house where he encountered Mr Symons. During this encounter, Mr Symons was fatally stabbed. It was accepted that Mr Bouhaddou had not gone to the house pre-armed. The issue for the jury was whether the stabbing occurred accidentally during the course of the struggle or was inflicted deliberately by the defendant. The case involved careful cross-examination of distressed witnesses including Mr Symons’ widow. There were issues of alleged bad character and there was intense media coverage throughout. In the Court of Appeal, the question raised was whether the minimum 30-year starting point had been correctly applied and whether sufficient credit had been given for Mr Bouhaddou’s lack of intent to kill. The Court found that 30 years was the appropriate starting point but that insufficient credit had been given for the lack of intent to kill and the minimum term was reduced.
R. v. Bernard Clarke
Court: Snaresbrook Crown Court, Feb 2006
CRIME/DANGEROUS DRUGS
Defended: Mr Clarke was said to be a principal mover in a crack-cocaine conspiracy and the cook of the ‘crack’ cocaine.
Issues: True level of participation
Mr Clarke pleaded Guilty to offences surrounding the production of ‘crack’ cocaine. The press featured the case because of the alleged high-living of the defendants which earned them the name of the “bling-bling gang”. The mitigation on behalf of Mr Clarke was extensive and included detailed submissions concerning the true factual analysis of the amounts involved and of his actual involvement in the crime.
R. v. Bryan
Court: Central Criminal Court, 2005; Court of Appeal, 2006
Court of Appeal Reference: 2006 EWCA Crim 379; 2006 2 Cr.App.R.(S) 66
CRIME/HOMICIDE/MURDER/MANSLAUGHTER (DIMINISHED RESPONSIBILITY)
Defended: The London ‘cannibal’ case. Man previously convicted of Manslaughter (Diminished Responsibility) killed and ate neighbour and killed fellow inmate in Broadmoor whilst awaiting trial on the ‘neighbour’ charge.
Issues: Degree of culpability in case of offender who is seriously mentally ill. Appropriateness of ‘whole life term’ for seriously mentally ill offender.
Mr Bryan pleaded Guilty to two counts of Manslaughter (Diminished Responsibility). Whilst on remand at Broadmoor Special Hospital, he killed a fellow patient. He had already killed a woman some ten years previously and been released from Rampton Hospital. The case was one of considerable public notoriety and required detailed and complex mitigation. There were issues surrounding his supervision following release and the degree of responsibility he bore. His illness was complicated by a surface appearance of normality but he was regarded by expert psychiatrists as being severely ill and dangerous. The judge imposed a ‘whole life’ term and this gave rise to the appeal as to whether the judge had classed as aggravating features (number of killings, sexual excitement at killing and killing to eat) matters that in reality reflected the mental illness. The Court of Appeal reduced the minimum term to 15 years.
R. v. Bechian
Court: Central Criminal Court, 2005
CRIME/HOMICIDE/MURDER
Defended: Young man accused of being part of a gang intent on murdering a rival gang-member in a ‘cashpoint cloning’ war.
Issue: Whether Crown could prove participation; whether defendant required to serve Defence Case Statement
Mr Bechian was accused of being part of a murder where a rival East European gang member was beaten to death in a London ambulance in which he had taken refuge. The case against Mr Bechian was largely circumstantial and it was submitted on his behalf (he did not give evidence) that the Crown had failed to prove his guilt. This required detailed analysis of the evidence, particularly cell site material. Unusually, it was decided that Mr Bechian would not serve a Defence Case Statement and pressure from the Court was resisted. Mr Bechian was acquitted by the jury.
R. v. Timothy Robinson
Court: Bristol Crown Court, Court of Appeal. 2000-2002
CRIME/FRAUD
Defended: Solicitor accused of Britain’s largest legal aid fraud.
Issues: Knowledge and jury bias.
Mr Robinson faced allegations of masterminding the country’s largest ever legal aid fraud. His trial was the first in a sequence that lasted several years at Bristol Crown Court. He accepted there had been such a fraud but denied its alleged extent and his involvement in it. The case involved the most extensive use (for that time) of computer technology and electronic presentation of the vast array of exhibits to the jury. The case involved enormous difficulties including cross-examination of two central accomplice witnesses, a ‘cut-throat’ with an employee co-defendant, Mr Robinson’s health and multiple jury difficulties over the nine-month trial. Although Mr Robinson was convicted, detailed analysis of the position over confiscation resulted in an Order of under £600,000 – considerably less than that contended for by the SFO. Mr Robinson appealed unsuccessfully on the issue of alleged jury bias although the appeal had important and interesting dicta on the use of a solicitor’s clerk as a paid police informant.
