We would like to stop writing about claims alleging ineffective assistance of counsel in criminal matters. But their frequency remains high, they now being the third most frequent claims we see by practice area.

We recently looked at our closed criminal files since 2017 to determine if there are any trends in either the charges that generate the allegation or, if ineffective assistance is found, issues that lead to the finding.

In just over 40% of these files (which include conviction appeals and applications to withdraw guilty pleas), the offence was either murder / manslaughter or a sexual offence. While not suggesting that criminal defence work is not complex generally, it goes without saying that defending these particular offences has significant complexity. Which means that if you take these matters on (which is not to suggest that you should not do all this when defending any criminal matter), you have to be prepared to give an appropriate time commitment, consider all appropriate applications, consider all potential witnesses and conduct all investigations. There is no getting around this. It also means that your client, including the person paying your bill if that is not the client, is aware of and approves the time you need to properly deal with the matter, ideally in advance of you accepting the retainer.

Of our closed criminal files going back to 2017, 44% were actually argued, the allegation being abandoned or withdrawn in the remaining 56%.

In the matters we have argued, the appeal was allowed in 20%. But only in half of those successful appeals was ineffective assistance made out, or 10% of all the appeals we have argued. Put another way, in 90% of the appeals argued where ineffective assistance is raised, the ground of appeal is dismissed.

Referring to the 10% of appeals where the allegation of ineffective assistance was made out, in 58% of these, the issue related to the decision of the client to testify, specifically defence counsel’s failure to know the law and properly deal with this decision. In another 14%, though the decision to testify was properly documented, the issue was inadequate preparation of the client to testify. So, broadly speaking, where ineffective assistance is made out, it is because of issues around the decision of the client to testify and their preparation to testify.

Three things we can agree on are that (i) the decision to testify in one’s own defence is fundamental to a criminal defence, (ii) the decision is for the client to make and (iii) it must be an informed decision based on a proper explanation of the law and counsel’s opinion of the matter.

And because it is often the case that the decision to testify is not made until after the Crown has completed its case, it is prudent to conduct your client’s preparation prior to the start of a trial. Yes, you can always ask for an adjournment before your client gives their evidence but we would ask this – what if your request for an adjournment is denied or is not long enough.

Given that this aspect of your retainer is the most likely to support an allegation of ineffective assistance, on the decision to testify, you have to have a fulsome discussion with your client, explain the law and the pros and cons of testifying.

And you should make notes of your discussions and get the client’s unequivocal instructions in writing. And if something happens during the trial that affects an earlier decision on testifying, that too has to be discussed with your client.