Consistency needed on defective representation

The principles governing the approach to appeals based upon alleged defective representation by counsel and solicitors were first laid down by a five judge bench of the High Court in Anderson v HMA 1996 SCCR 114; 1996 SLT 155. Prior to that decision, it was not possible for an accused to found an appeal against conviction on an alleged lack of skill or diligence in the preparation or presentation of his defence (McCarroll v HMA 1949 JC 10; 1949 SLT 74). Such an approach, had it been maintained, would have been likely to contravene Article 6 of the European Convention on Human Rights, an issue the court no doubt had in mind in reaching its decision in Anderson.

The Principles laid down in Anderson

It was held in Anderson that, due to the overall need to ensure a fair trial to accused persons, the position adopted previously by court was no longer tenable. The difficult question for the court, however, was how to identify those cases in which intervention at appeal stage would be necessary.

The accused in Anderson was charged with assault and relied at trial upon a special defence of alibi. Following his conviction, he complained at appeal that his solicitor advocate had ignored his instructions to challenge the character of one of the complainers, who he claimed was a man of violence, by putting to him in evidence his previous convictions. However, the appellant’s contention that the complainer had served a period of imprisonment for a violent offence was not supported by a schedule of previous convictions which confirmed that his most recent conviction for violence had occurred over fifteen years previously. The appellant, on the other hand, had numerous previous convictions for dishonesty, several of which had attracted periods of imprisonment.

Prior to considering the specific issue raised by the appellant, the court formulated a number of principles, which can be summarised as follows:

• Although it cannot be asserted as an absolute rule that the conduct of the defence by an accused’s counsel or solicitor will not be a ground of appeal, the circumstances in which this will be permitted must be defined narrowly;
• The conduct complained of can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. This, in turn, can only be said to have occurred where the conduct of the case was such that the accused’s defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence he wished to be presented, or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him;
• The principle of finality demands that the right to a fair trial should not be viewed as involving a right to a re-trial simply because things at trial might have been done differently. It that were so, there would be no end to the process of putting an accused on trial for his offence;
• While an accused has the right to have his defence presented to the court, his counsel or solicitor is not subject to direction by him as to how that defence is presented. In other words, although the representative must act according to his instructions as to what the defence is, the way in which he conducts the defence within those instructions is a matter for him. As a general rule, an accused is bound by the way in which the defence is conducted on his behalf.

In rejecting the appeal, the court highlighted that not only was the appellant’s contention regarding the complainer’s character unsupported by the evidence, any such attack was irrelevant to the appellant’s defence of alibi. More fundamentally, however, the decision as to whether an attack should be made upon the character of a witness related to the manner in which the defence was conducted and was accordingly for the solicitor advocate to take, not the accused.

The court in Anderson therefore drew a sharp distinction between the instructed defence (on which the representative requires to accept direction from the accused) and decisions made as to how the defence should be presented (on which the representative is entitled to refuse such direction and proceed according to his own discretion). Only when the instructed defence was not presented at trial would the court be prepared to intervene.

Subsequent Cases

Despite the strict approach taken by the court in Anderson, it is possible to detect a subtle but significant change in emphasis in a number of cases decided only a short time later. In McIntyre v HMA 1998 SCCR 379; 1998 JC 232; 1998 SLT 374, it was held that there are two aspects to any appeal based upon alleged defective representation. The first is whether there has been a failure to present the defence instructed by the accused at all, either because counsel departed from the accused’s defence entirely and followed some different line, or because counsel’s conduct of the defence was so inept as to being about the same result. The second is whether what counsel has done in attempting to present the accused’s defence can be regarded as a reasonable exercise of discretion, or whether what was done was contrary to “the promptings of reason and good sense”.

In other words, unlike in Anderson, the court in McIntyre, by indicating that it was prepared to assess the reasonableness of counsel’s exercise of discretion, appeared to suggest that it would indeed be willing to consider the manner in which an accused’s defence was presented and, in particular, any decisions made by the representative as to how this should be done.

However, it is perhaps the subsequent case of Garrow v HMA 2000 SCCR 772, which provides the most striking example of an extension of the principles laid down in Anderson. In that case, the then Lord Justice General (Rodger), in delivering the opinion of the court, held that the failure of the defence to obtain a medical opinion on the appellant’s amended defence to a charge of rape, resulted in that defence not being properly presented to the jury. In other words, the court was prepared to look beyond whether the defence was presented at all, and consider the manner in which it was presented at all (although it can perhaps be argued that in Garrow the basis for the court’s decision was simply that the accused’s amended defence was not presented at all).

The more purposeful approach taken in Garrow was followed by the court again in E v HMA 2002 SCCR 341; 2002 SLT 715. In that case, the appellant was convicted of raping his two daughters and appealed on the ground that senior counsel had not adequately prepared or presented his defence to the charges. In particular, it was alleged that, prior to the trial, the appellant had provided his solicitor with research material bearing upon both the medical evidence which it was anticipated the Crown would lead, as well as the possible manipulation of child witnesses into giving false or exaggerated accounts of sexual abuse. In addition, following his conviction the appellant obtained a number of expert reports which reflected the research material he had earlier produced and supported certain aspects of his defence. The appellant argued that to substantiate his defence that the complainers had been manipulated into making false allegations against him, their mother (the appellant’s former wife) should have been cross-examined as to her character. The mother, it was claimed, had a number of previous convictions for dishonesty, had been vindictive and violent towards the complainers in the past and had unduly influenced them with regard to the risk of child sexual abuse.

Senior counsel, in his response to the allegations, indicated that his recollection of the appellant’s defence was simply that the latter had not some what was alleged and that the complainers had been pressurised by their mother into making the allegation. He acknowledged that he had not made an “all out attack” on the mother’s character and explained that this had been a tactical decision based upon his desire to avoid antagonising the jury and exposing the appellant, who also had previous convictions, to a similar attack.

In upholding the appeal on this ground, the Lord Justice Clerk emphasised that the distinction made in Anderson between a failure to present an instructed defence and the judgement as to the manner in which it is presented should not be applied “too rigidly”. In his view, the underlying principle in any appeal based upon alleged defective representation was whether the presentation of the appellant’s defence was such that he did not receive a fair trial.

Lord McCluskey was of the view that a “substantial line of defence”, which supported the proposition that the complainers’ evidence was incredible and unreliable, was not presented to the jury. He was also not impressed with senior counsel’s “softly softly” approach to challenging the reliability of the complainers’ evidence. Given the nature of the defence, Lord McCluskey considered that there was no option but to also attack the complainers’ credibility on the basis that their evidence was deliberately false. Such an approach would also have necessitated an attack upon the mother’s credibility, even though this would have exposed the appellant himself to such an attack. In Lord McCluskey’s view, the appellant was entitled to have his defence presented in this way, even if senior counsel considered it unwise to do so.

Lord Hamilton agreed that the appeal should be upheld, though his reasons were to some extent different from those of his fellow judges. Although he accepted that the appellant’s defence, in relation to the medical evidence and the unreliability of the complainers’ accounts, had not been  properly investigated and presented, he was not persuaded that senior counsel’s decision to resist an attack upon the mother’s character constituted a failure to present the appellant’s defence. In his view, such a decision concerned the manner in which the defence was conducted and was thus, in terms of Anderson, a matter for senior counsel’s discretion.

Perhaps the most notable aspect of the court’s decision in E is the apparent relaxation, evident in the opinions of the Lord Justice Clerk and Lord McCluskey, of the distinction between the failure by a representative to present an accused’s defence and the exercise of judgment as to the manner in which it should be presented. In its place, an arguably more pragmatic approach was taken: namely, whether the presentation of the appellant’s defence was such that he did not receive a fair trial. While the right to a fair trial was one of the main driving forces behind the court’s decision in Anderson, the court in E seemed less concerned with the various other principles laid sown in that case. In particular, Lord McCluskey’s comment to the effect that the appellant in E was entitled to have his defence presented in the way he wished is difficult to reconcile with the view expressed by the court in Anderson, that the manner of presentation is a matter purely for the discretion of the representative.

One possible consequence of this change in emphasis is that it will no longer do for representatives simply to rely upon the measure of discretion afforded to them in Anderson. Indeed, it appears that the court may now be prepared not only to examine the exercise of that discretion, but also to consider the overall manner in which the defence was conducted in order to assess whether the appellant has been denied a fair trial. In other words, the previously narrowly defined circumstances in which an appeal will be permitted on the basis of defective representation have, in terms of E at least, become somewhat wider.

It is also apparent from E that, in assessing whether and an appellant’s defence has been properly presented, much will depend upon how widely the court views that defence. In reality, although an accused may rely upon a specific defence of, say, alibi, there are likely to be a number of additional, and often no less material, aspects to his defence that may, if accepted by the jury, result in an acquittal. It follows that if such aspects of the defence are, for an reason, omitted from its presentation this could be held to constitute a miscarriage of justice. The more detailed an analysis the court makes of a particular defence (as occurred in E), the greater the scope for holding that it has not been properly presented in some respect. Conversely, in cases (such as Anderson) in which the court views the defence as simply “alibi” and ignores other possible aspects, such as a proposed attack on the poor character of a material witness, the scope may be less. In a sense, it seems unreasonable, if such an attack can lead to an eventual acquittal that, in the strict terms of Anderson, the court may nevertheless ignore any failure by the representative to do so on the basis that this is a matter solely for his professional judgement (but, of course, if one adopts the approach taken in McIntyre, the use of that discretion may itself be examined).

A related problem for representatives may be in identifying whether instructions given by an accused constitute his actual defence to the charge, or rather are matter, the presentation of which is dependent upon the exercise of discretion. Using the same example as above: if one of the main elements of an accused’s instructions is that a material witness is lying, and what is more, has several previous convictions for dishonesty, is the representative obliged to present this as his client’s instructed defence (as was suggested by the court in E); or, given that it constitutes an attack on character, is it thereby a matter solely for his professional judgment (as was suggested by the court in Anderson); or does it depend upon the particular circumstances of each case?

In Winter v HMA 2002 SCCR 720, the Lord Justice Clerk, relying on E, reiterated that in order to succeed in an appeal based upon alleged defective representation, the appellant must show, not only that the instructed defence was not put forward, but also that the failure to do so meant that he was denied a fair trial. Although in Winter the court at some points appeared to analyse the manner in which the defence was presented, like Garrow, the basis of the court’s decision seems to be that the appellant’s defence was not presented at all.

Although the decisions which followed Anderson arguably widened the scope of such appeals, representatives might perhaps have taken some comfort from knowing that the court’s approach, at least in its more recent decisions, was consistent. However, it is unlikely that such a view can be maintained following the court’s decision in Jeffrey v HMA 2002 SCCR 822; 2002 SLT 1407.

In Jeffrey, although it was accepted on behalf of the appellant that his defence to the charges had been presented in the cross examination of the complainer, as well as in his own evidence and in counsel’s speech to the jury, it was argued, with reference to Garrow and E, among others, that due to an alleged error by counsel it had not been properly presented. In a firm re-statement of the approach taken in Anderson (and in an attempt, no doubt, to halt further erosion of the principles it established) the Lord Justice General held that it was “plainly insufficient” to base an appeal against conviction on criticism  of the way in which an appellant’s defence had been conducted. In his view, provided the defence was presented, it was not for the court at appeal stage to question the judgment of the counsel or solicitor by whom it was presented, even if it considered that things should have been handled differently. The Lord Justice General noted that the cases relied upon by the appellant had all concerned the preparation of the defence, as opposed to its presentation.

However, although the matter was not argued before the court, he confessed to having some difficulty in drawing a distinction between the two concepts so far as they relate to the question of whether an appellant’s defence has been presented. Any attempt to distinguish the previous cases on this basis would therefore appear to be unjustified.

The Lord Justice General also considered that the term “properly presented”, which, as explained, first emerged in Garrow, was a “movement away” from the principles laid down in Anderson. The use of such a term, in his view, implied that the court would be prepared to consider criticisms of the way in which a defence had been presented. It was noted, however, that in none of the cases in which the term was applied had the court doubted or expressly extended what was laid down in Anderson.

Lord Kingarth agreed that the test laid down in Anderson had subsequently been widened, and believed that the court in E had, in part, concerned itself with an assessment of the tactical decisions made by counsel as to how the appellant’s defence be presented.

In what is perhaps an indication that the approach taken in Jeffrey is likely to endure, the Lord Justice Clerk in Ditta v HMA 2002 SCCR 891 held that the court will not entertain an Anderson appeal where all that is suggested is that with the benefit of hindsight and further investigation an accused’s defence could have been stringer, or that better judgments could have been made on strategic and tactical matters. Although this decision probably takes us full circle back to Anderson, it appears, on the face of it at least, scarcely reconcilable with the approach taken by the court in E.

Conclusion

Although the court’s approach in Anderson was based primarily upon the need to ensure a fair trial, equal weight was also given to various policy considerations, namely the principle of finality and what was referred to in that case as the “independence” of counsel. As explained, the court considered that in order to avoid the possibility of countless re-trials, the scope of such appeals required to be narrowly defined and, in particular, could not be based upon the submission that the defence might, in other circumstances, have been conducted differently. However, as was also recognised by the court, placing too great an emphasis upon such policy considerations may undermine the court’s ability to correct miscarriages of justice. In this context, it is arguable that the approach taken in Anderson and re-affirmed in Jeffrey unnecessarily restricts the power of the court to intervene when it considers that a trial has been unfair. It also possibly conflicts with the right of convicted persons, under section 106(3) of the Criminal Procedure (Scotland) Act 1995, to being under review any alleged miscarriage of justice (see Church v HMA 1995 SCCR 194 on the predecessor to s 106(3), s 228(2) of the Criminal Procedure (Scotland) Act 1975).

This is not to argue that the scope of defective representation appeals should necessarily be widened, simply that the cost of ignoring certain parts of the picture in order to satisfy policy demands may be that factors relevant to the court’s assessment of whether a miscarriage of justice has occurred are omitted from consideration. Put simply, if at appeal the court considers that certain material aspects of an appellant’s defence were not properly presented to the extent that he did not receive a fair trial, it is difficult to see why it should not intervene. Aside from anything else, such an approach would seem to be more in keeping with a sensible interpretation of the right to a fair trial under Article 6 of the Convention. It might also avoid the often difficult question, referred to above, of whether the instructions given by an accused person constitute his actual defence to the charge, or rather are matters upon which presentation is a matter for professional discretion.

Whatever approach is to be taken to such appeals, it is clearly important that this is followed consistently by the court.

Robin Johnston is Senior Legal Officer with the Scottish Criminal Cases Review Commission. The views expressed in this article are entirely those of the writer and do not represent those which may be held by the Commission.