Limits of Anderson appeals

At the time of writing the case of Samuel McBrearty v HMA, 13 April 2004 has not been reported, but no doubt it will and it should be read, dealing as it does with the scope of what have come to be known as “Anderson appeals”, following the case of Anderson v HMA 1996 JC 29 in which an appellant claimed that his defence had not been properly conducted. In this case, counsel appearing at the appeal argued that the appellant had not been properly defended because those representing him then had failed to deal properly with a witness known as KM, inasmuch as they had not obtained an expert opinion about her mental condition and had also failed to put it to her that she had made a false allegation of rape against a gardener working at the same place as the accused.

In giving the opinion of the court refusing the appeal, the Lord Justice Clerk made clear some important points. These may be summarised as follows:

(1) There is a distinction between failing to put forward an important line of defence and a possible misjudgment about the presentation of such a line.

(2) It may be difficult to draw a dividing line as regards these matters, but there will be cases in which the appeal court is entitled to conclude that a defence was not properly conducted, for if this were not the case one would lose sight of the underlying question in every Anderson appeal, namely was the accused given a fair trial?

(3) In a trial situation there may be a number of decisions which it would be reasonable for counsel to take.

(4) An appeal court ought not to be too quick to substitute its judgment for that of counsel who conducted the trial and allowance ought to be made for the difficulties to be experienced by the defence in every trial.

(5) The court also considered the very live issue of the scope and extent of the admissibility of expert evidence about a witness’s mental condition. The assessment of a witness as regards truthfulness remains a matter for the jury but evidence about an objective medical condition which might affect a witness’s ability to tell the truth will be admissible. As regards this last matter, attention is drawn to Sir Gerald Gordon’s note to Campbell v HMA 2004 SCCR 220.

One further and rather unusual matter was referred to by the Lord Justice Clerk. When an Anderson appeal is lodged, the court can invite the trial counsel to submit comments on the ground of appeal, an invitation which counsel is at liberty to decline. However it was emphasised that counsel is an officer of the court and if an explanation is withheld that only he can give, there is a chance that the court will not be able to decide the appeal with proper knowledge.

The point may be thought to be not without difficulty. It is understood that in McBrearty the invitation was declined by senior counsel but that junior counsel and the solicitors involved at the time did respond. I dare say arguments could be rehearsed both for and against the propriety of counsel providing a report, but anyone reading the judgment will have no difficulty in deciding what the view of the Lord Justice Clerk is, for he says in terms “But for the courtesy of [junior counsel] we would have had the greatest difficulty in dealing with this important appeal”. Not the least of the difficulties that might occur in similar cases, it would seem, is the fact that if no explanation for a particular course is given and one does not occur to the appeal court, then an appeal against conviction may be allowed which should be refused. Of course, here we may have the paradoxical situation of counsel justifying the conviction of an ex-client in the face of criticism from parties who were not even there at the time. But such is the nature of an Anderson appeal. Whether or not professional bodies will give advice to their members remains to be seen. Further, it will be interesting to see whether any distinction is drawn between solemn and summary cases. The question of defective representation is one of the issues considered in Campbell, cited above.

Seen to be done

When on the bench, if Lord Robertson was not impressed by an argument, rather than overtly criticise counsel he used courteously to imply that the fault was his, often employing the locution “I don’t understand”. I have to say I am in something of a similar position over the case of Lamb v Gallacher 2004 GWD 10-228. Here, in a summary trial, although the Crown did not object to bail over the lunch break the sheriff did, refusing on the basis that the accused “could not be trusted” not to speak to two Crown witnesses who were still to give evidence. An appeal by way of bill of suspension was successful, on the basis that this action indicated that the sheriff had prematurely formed a view that was adverse to the accused and that accordingly justice was not seen to be done. If it is the case that it is what the sheriff said, rather than did, that was inappropriate, this would seem to cut across the generally accepted view that a judge should give reasons for what he is doing. What is worth noting, however, is that justice being seen to be done seems to be taken literally, that is to say the process must look as though it is fair, rather than what I suspect was the original meaning of the expression, namely that the outcome of a case must not only be correct but must be explained in such a way as to be appreciated to be so.

A similar underlying concern may perhaps be discerned in the case of Fraser v HMA 2004 GWD 9-201, which relates to what should happen when, in a trial by jury, the accused wishes to plead guilty to some charges and go to trial on others. The Lord Justice Clerk expressed misgivings about the practice of taking pleas in the presence of unempanelled jurors, lest some sort of impression be given which was adverse to the interests of the accused. He recommended that such matters should be dealt with outwith the presence of unempanelled jurors, and it is understood that this now has been adopted as good practice. The jury once empanelled should, presumably, see the indictment amended to show only the live charges.

Racial insult not compensatable

Turning to sentencing, it seems probable that we do not make as much use of compensation orders as was envisaged when they were introduced. Whether or not to use this disposal more would be a move back to assythment I am not sure, but I am obliged to Sheriff Kearney for the story about the court in which, a murder trial being called, a voice from the public benches called out “That case has settled.” Some light is cast on the subject by the case of Brown v Laing 2004 SCCR 132 which was an appeal against the imposition of compensation and of probation with 100 hours of community service in respect of actings of a racially aggravated manner towards a police officer who was a Muslim of Pakistani origin. The appeal succeeded for the reason that the court held that there had been no evidence before the court of “personal loss, injury or damage”. Being distressed, insulted or offended does not amount to being personally injured (Smillie v Wilson 1990 SCCR 133). The appeal court obviously did not approve of the appellant’s behaviour, but naturally insisted that the court could only do what the legislation permitted. It may be thought surprising that if it were thought necessary to introduce a new offence (something widely doubted at the time), it was not thought worth introducing something which would have been different, that is to say providing for a compensation order as a possible disposal. On a more technical matter, the court observed that rather than make a separate compensation order, the proper way would have been to make compensation a condition of probation. As doubt has been expressed in the past about the propriety of such a course, it is as well to have the matter cleared up.

On compensation orders, Grant v Griffiths 2004 SCCR 136 is quite interesting, as it suggests that something akin to contributory negligence on the part of the complainer might be taken into account in assessing the level of compensation awarded. The matter arose because while in that case the Crown did not dispute an account given on behalf of the appellant to the effect that the complainer had twice reversed a car into her before she kicked it, the justice said that he neither accepted nor rejected this in fixing compensation. The court reaffirmed that in such circumstances it was quite proper to accept the uncontradicted story and if for any reason this could not be done then a proof in mitigation would be in order, it being remarked that “we do not really understand the proposition that the resolution of the dispute would not have altered the level of compensation which he imposed”.

Finally and again unreported at the moment, McGaffney v HMA, decided 6 May 2004, elaborates on the guidance in sentencing in cases involving obscene photographs of children given in the case of Ogilvie v HMA 2002 SLT 1391.