Sins of omission

Some years ago I contributed an article to the Journal commenting upon the uncertainty which had developed in the High Court’s approach to appeals based on alleged defective representation (see “Consistency Needed on Defective Representation”, Journal, February 2003, 19). The article focused on a number of cases in which there had been an apparent departure from the principles laid down by five judges in Anderson v HMA 1996 SCCR 114. The purpose of this article is to reconsider some of the issues raised by those cases and to look at some of the more recent decisions in this area.

Approaches in the early cases

The following principles were established in Anderson:

• the conduct of a defence case can only be said to have resulted in a miscarriage of justice if it deprived the appellant of his right to a fair trial;

• an appellant can be said to have been denied a fair trial where his defence was not presented to the court;
• a fair trial may be denied to an appellant because he was deprived of the opportunity to present his defence, or because his legal representative acted contrary to his instructions as to the defence he wished to have put, or because of other conduct which resulted in the trial being unfair;
• legal representatives are under a duty to act on the instructions they have been given, but how they act on those instructions is a matter for their discretion and judgment;
• the right to a fair trial does not entail the right to a retrial simply because things might have been done differently by the representative, and there can be no miscarriage of justice if the representative conducts the case within his instructions according to his own professional judgment as to what is in his client’s best interests.

In the years following Anderson these principles were modified and developed (although see McBrearty v HMA 2004 SCCR 337, in which the court denied that any such developments had taken place). In McIntyre v HMA 1998 SCCR 379 the court held that there were two aspects to appeals based on alleged defective representation: the first, reflecting Anderson, was whether there had been a failure to present the appellant’s defence at all; the second was whether counsel’s exercise of discretion as to the manner of its presentation was within reasonable confines or whether, as the court put it, the approach taken was “contrary to the promptings of reason and good sense” (quoting Rougier J in R v Clinton [1993] 2 All ER 998, also quoted in Anderson).

Shift of emphasis

A subtle but potentially significant development occurred in Garrow v HMA 2000 SCCR 772, in which it was held that the appellant’s defence had not been properly presented to the jury. To some, this suggested that the court might in certain circumstances be prepared to look at the manner in which a defence had been presented, rather than confining itself to the question of whether it had been presented at all. However, Garrow, it should be noted, is a case which concerned not so much the manner in which the defence had been presented as whether a material line had been presented (the same might be said of Hemphill v HMA 2001 SCCR 361).

It is the decision in E v HMA 2002 SCCR 341 which marks the greatest departure from established principles. There, a majority of the court engaged in what was clearly an assessment of the manner in which the appellant’s defence had been presented. Specifically the court focused on counsel’s decision at trial not to challenge the character of an important Crown witness (a decision which, according to Anderson, was one exclusively for counsel’s discretion). Indeed, Lord McCluskey went as far as to observe that the appellant in E was entitled to have this aspect of his defence presented, even if experienced counsel thought it unwise to do so.

In the cases immediately following E, efforts were made by the court to re-establish the narrow approach taken in Anderson. In Jeffrey v HMA 2002 SCCR 822, for example, it was held to be “plainly insufficient” to found an appeal against conviction on criticism of the way in which an appellant’s defence was conducted; provided an appellant’s defence had been presented, it was not for the appeal court to question the judgment of the solicitor or counsel responsible, even if the court was inclined to think that it would have been better if things had been done differently (see also Ditta v HMA 2002 SCCR 890). The Lord Justice General (Cullen) went on to express concern that the court’s decisions in Garrow, Hemphill and E implied that the appeal court might be prepared to entertain criticisms of the manner in which an appellant’s defence had been presented. Similar concerns were expressed by Lord Kingarth.

Drawing the line

The more restrictive approach evident in Jeffrey was maintained in Grant v HMA 2006 SCCR 365, in which the court reiterated forcefully that in order to succeed in an appeal based on defective representation an appellant must establish that his defence was not presented to the court. The court added that leave to appeal ought not to be granted by sifting judges if all that was alleged was that the defence would have had better prospects of success if counsel had pursued a particular line of evidence or argument, or a different strategy.

In Scott v HMA 2008 SCCR 110 the appellant had been identified by a witness at an identification parade, but only after the witness had seen him in a prison holding cell in circumstances which suggested that the appellant was about to be taken to the parade. It was argued at appeal that the decision of the appellant’s trial counsel not to raise this matter with the witness in cross examination had denied the appellant a fair trial. Prior to the parade, the appellant had complained about the alleged irregularity to his trial solicitor, who had objected to the holding of the parade on this ground. The solicitor did not, however, carry out any enquiries into the incident. In rejecting the appeal, the court observed that what had occurred prior to the parade was “not something which amounted to a substantive defence” but simply one evidential issue among several which could have been explored in any attack on the credibility of the witness. In the court’s view, it was therefore pre-eminently a tactical issue, the pursuit of which was a matter for counsel’s discretion.

In S v HMA 2008 SLT 1128, a reference by the Scottish Criminal Cases Review Commission, the court sought to adopt the same, narrow, approach as was taken in Anderson. Although reference was made to Garrow, Hemphill and E, the court placed greater reliance on Jeffrey and Ditta. The court also made extensive reference to the dicta in Grant which emphasised the need for an appellant to demonstrate that his defence had not been presented. Notably, however, there was no reference in S to the following passage in Grant, in which the court gave guidance to those who sought to raise alleged defective representation as a ground of appeal: “For all of these reasons… an Anderson ground ought not to be put forward unless (1) it sets out a prima facie case in that on the information available to trial counsel the defence was not properly put before the court” (Lord Justice Clerk Gill at para 25, emphasis added).

Defining the defence

One of the difficulties with the case law in this area is that, aside from Anderson itself, all the decisions have been made by benches of three judges. In some cases the court has remained loyal to established principles; in others there have been innovations or differences in emphasis. Nowhere can this be seen more clearly than in relation to whether a defence must be properly presented, or just presented. Although it is hardly a satisfactory way of establishing the precise limits of the law, there is roughly an equal split in the number of cases which have adopted one approach over the other (see also Lindsay v HMA 2008 SCCR 391, in which the court held that an appellant is entitled to have his defence “effectively presented”).

On one interpretation there is little practical difference between the two approaches, particularly where one views a “defence” as consisting of a number of different aspects or lines (e.g. alibi, challenges to the credibility and reliability of particular witnesses, the raising of irregularities in relation to identification procedures etc). When viewed in such broad terms, any failure properly to present a defence is also a failure to present it at all.

The difficulty is that although the court has recognised the need to present “important lines of defence” (McBrearty, Lord Justice Clerk at para 34, emphasis added; also Winter v HMA 2002 SCCR 720), the strict approach taken in Anderson, Jeffrey and S often involves viewing the defence in narrow terms and employs a somewhat mechanistic assessment as to whether or not it was presented. The focus becomes whether an appellant’s “substantive” defence was presented, with the presentation of other (perhaps equally important) elements being wholly dependent upon counsel’s discretion.

This raises the further difficulty of establishing just what the instructed defence was. For example, in Scott what would the position have been if the appellant had specifically instructed his counsel to raise with the witness the alleged incident in the holding cell? Would that have transformed a tactical issue (the presentation of which is a matter for counsel’s discretion) into an instructed line of defence (the presentation of which is obligatory)? Judging by its argument in Scott, the Crown did not seem to think so: the advocate depute argued that even if the appellant had instructed the matter to be raised, counsel’s discretion as to whether to do so could not be circumscribed.

Other modifications have been made to the principles established in Anderson. Compare, for example, the passage in that case in which an appellant was said not to be entitled to a retrial simply because things might have been done differently at his trial, with the approach taken in Jeffrey, Ditta and other cases, in which it was said that the court will not intervene even if it considers that a defence might have been better presented.

There remains a degree of uncertainty in this area which one suspects will only be rectified by a further five-judge bench considering the issues afresh. In any reformulation of the law it will be important to bear in mind that the principles and tests to be applied in assessing such appeals are secondary to the aim of ensuring a fair trial.

Robin Johnston is Senior Legal Officer with the Scottish Criminal Cases Review Commission. The views expressed are entirely those of the writer and do not represent any that may be held by the board of the Scottish Criminal Cases Review Commission. The writer had no personal involvement in the S case.