Chambers UK 2008 says:
David Etherington QC, a man with a “
distinctive style, who is always thoroughly prepared in court.” Peers note that he is “
first-rate at both prosecution and defence, and has a sparkling sense of humour.” “
Brilliant jury advocate”.
Chambers 2009 says:
David Etherington QC is a “
very commanding advocate, with great knowledge of the law and incredibly sound judgement.”
PRACTICE SUMMARY
Defence (80%), Prosecution (20%)
General Crime – Serious & Organised Crime - Fraud (Criminal) – Disciplinary & Regulatory – Health & Safety – Malicious Prosecution/Wrongful Arrest (Civil Jury Work).
David Etherington took over as Head of Chambers some five years ago following Peter Rook QC’s appointment to the Bench at the Central Criminal Court and has recently been asked by Chambers (and agreed) to serve a further 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 is as happy in a major fraud case as in an important murder trial. As a junior barrister he had a mixed civil and criminal practice and both prosecuted and defended. The bulk of his work in Silk has been defending in heavy criminal work although he has prosecuted both for the CPS and the Health & Safety Executive. 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)
- Bechian – Murder (the London ‘ambulance’ murder)
- Bouhaddou – Murder (Schoolteacher by burglar)
- 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.
- Lewington the alleged extreme right-wing terrorist.
- N– a mother who tragically killed her two young children and attempted to kill the third.
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 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 has been 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 is an appointed member of the Criminal Bar Association and is a contributor to the house magazine from time-to-time.
He has been a Recorder of the Crown Court since 2000 and sits as a legal assessor to two organisations, The General Dental Council and The General Optical Council, in their regulatory and disciplinary roles.
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 has recently been appointed Chancellor of the Consistory Court for the Diocese of St Edmundsbury & Ipswich, having previously been the Deputy Chancellor for that diocese and the Diocese of Norwich.
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.
TELEVISION ADVISING
Granada ‘Hypotheticals’ Series, Kavanagh QC, The Brief, Wing & a Prayer, Judge John Deed, Incognito, and various other productions.
CURRENT AND FORTHCOMING CASES include another “Trident” murder involving the same supergrass as Anderson-see below in Illustrative Cases, a murder case turning on causation following a conviction for Attempted Murder and the subsequent death of the victim several years later and several substantial frauds for the Autumn & Winter.
ILLUSTRATIVE CASES
RECENT WORK, 2007 ONWARDS
Certain cases, in 2009, cannot be referred to because of continuing reporting restrictions.
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 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.
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 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. 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. 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.
R v Ajit Patel (part of R v O'Neill and ors/"Operation Holbein")
Court: Southwark Crown Court; Court of Appeal, House of Lords
CRIME/SERIOUS FRAUD/CARTELS
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.
R. v. Cavdarli
Court: Woolwich Crown Court, Aug 2007
CRIME/DANGEROUS DRUGS (IMPORTATION)
Defended: Turkish equestrian star charged with being the mastermind of a major heroin importation.
Issue: Knowledge; Participation.
The defendant, a Turkish national and Turkish equestrian star was alleged to be the prime mover in a major heroin importation in which convictions had already been obtained. He was arrested in Greece on an International Arrest Warrant. He had innocent explanations for observed meetings with a convicted conspirator. The Crown sought to establish fatal links through other people known to both and telephone evidence. In the first trial, the defendant did not give evidence and the jury could not agree. In the second trial, following the service of additional evidence, the defendant both gave evidence and called Turkish witnesses. He was acquitted.
R. v. Sean Bennett (& ors)
Court: Central Criminal Court, Jun-Aug 2007
CRIME/HOMICIDE/MURDER
Defended: Mr Bennett was charged with the murder of Jamal Moore. The case against him alleged he was involved in ‘tit-for-tat’ gang warfare.
Issues: The issues involved the extent to which circumstantial evidence, particularly cell-site evidence, proved his involvement and the use of convictions in an earlier trial of alleged co-conspirators.
The jury was unable to agree on a verdict and was discharged. The Crown offered no further evidence and the court entered a verdict of Not Guilty.
R. v. Gourde
Court: Central Criminal Court, Jun 2007
CRIME/HOMICIDE/ATTEMPTED MURDER
Defended: Schoolboy accused of shooting a boy who annoyed him in a park following a pedal bike collision.
Issue: Witness anonymity; intent; bad character.
R. v. Moore
Court: Lewes Crown Court, Feb 2007
CRIME/HOMICIDE/MURDER
Defended: Alleged murder of vulnerable elderly man by younger man who had befriended him.
Issue: Causation, where fatal blow may have been administered when defendant lacked the necessary intent for murder.
The case was prosecuted as Murder. This charge removed from jury by judge following legal submissions at the close of the prosecution case and the defendant pleaded guilty to Manslaughter (Lack of Intent).
R. v. Caunter
Court: Ipswich Crown Court, 2007 & 2008
CRIME/HOMICIDE/MURDER
Defended: Businessman accused of murdering his fiancé.
Issue: Cell site analysis; expert accident reconstruction and (if permission to appeal allowed) permissible use of bad character.
The defendant was accused, and ultimately convicted, of murdering his fiancé when fleeing a revenue investigation. It was alleged that he ran over her head by reversing his Landrover Discovery while she lay injured in the road. A first jury could not agree and a second jury convicted. The case is currently awaiting a decision on leave to appeal on the use of bad character evidence by the prosecution.
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.
