Anderson (James McAulay) v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 01 December 1995 |
| Date | 01 December 1995 |
| Docket Number | No 8 |
| Court | High Court of Justiciary |
Full Bench
LJ-G Hope, LJ-C Ross, Lords Sutherland, Cameron of Lochbroom and Johnston
Procedure—Solemn procedure—Appeal—Tactics of trial allegedly agreed to ignored and changed by representative in court—Representative instructed to cross examine complainer as to character but failing to do so—Whether representative's skill or diligence in preparation or conduct of defence constituted miscarriage of justice—Criminal Procedure (Scotland) Act 1975 (cap 21), sec 228(2)1—European Convention on Human Rights, arts 6.1, 6.3 (a) to (c)2
A pannel was tried on an indictment with, inter alia, assault. He was represented at the trial by a solicitor-advocate. On being convicted, he appealed on the ground that the tactics for his defence as stipulated and agreed to were ignored and changed by his solicitor-advocate without his agreement or any consultation. In particular, the pannel had insisted from the beginning that the character of one of the Crown witnesses should be brought out at trial bearing in mind that the only evidence against him was evidence from that family. In that connection, the pannel alleged that he had suffered prejudice at the trial and there had been a miscarriage of justice.
Held (by a court of five judges) (1) that every person accused of a crime before a Scottish court was entitled to a fair trial and had the right to be told both what the accusation was which was to be brought against him and to be given sufficient notice of it to prepare his defence and have that defence presented to the court; (2) that the counterpart to those essential principles was the right of appeal on the ground that there had been a miscarriage of justice contained in sec 228(2) of the Criminal Justice (Scotland) Act 1975 which was designed to enable the person to bring under review any alleged miscarriage of justice in the proceedings at which he was convicted by which he was deprived of his right to a fair trial; (3) that the right to a fair trial did not involve a right to a retrial simply because things might have been done differently by the pannel's legal representative, for there could be no miscarriage of justice if that representative conducted the case within his instructions according to his own professional judgment as to what was proper for him to do in his client's best interests and that a difference of view with the representative on matters of detail as to how the defence should be presented could not provide the pannel who had been convicted with a right to a new trial; (4) that the legal representative was not subject to direction by the client as to how the defence was to be presented and had to act according to his instructions as to what the defence was, but that the way in which he conducted that defence within those instructions, was a matter for him and as a general rule the pannel was bound by the way the defence was conducted on his behalf; and (5) that decisions as to whether or not attack the character of a crown witness were for the legal representative of the pannel to take and not the pannel himself and
the solicitor-advocate's decision in the present case had not deprived the pannel of a fair trial; and appeal refused.Turnbull v HM Advocate 1948 SLT (Notes) 12 andMcCarroll v HM AdvocateSC1949 JC 10overruled.
Observed that as difficult questions of professional practice might arise where allegations were made, it was essential that those against whom the allegations were made were given a fair opportunity to respond in writing to them before the court heard the appeal although he would be under no obligation to provide such a statement; and (2) that in all cases were a complaint was made against a legal representative who represented an appellant at trial for which leave to appeal had been granted, the clerk of justiciary would advise that representative of this fact and provide him with a copy of the ground of appeal so that he might respond to that allegation if he had not already done so, albeit it that again he would be under no obligation to respond at the stage of those allegations.
James Mcaulay Anderson was charged on an indictment at the instance of the Right Honourable the Lord Rodger of Earlsferry, QC, Her Majesty's Advocate, the libel of which set forth that: “(1) on 11 or 12 January 1992 in Berneray Street, Milton, Glasgow, you did while acting with John Dennis Miller and Thomas McKenzie McKinlay Armstrong, assault Edward O'Hara, care of Saracen Police Office, Glasgow, knock him to the ground, punch and kick him repeatedly on the head and body and repeatedly strike him on the head and body with poles, bats and a knife, all to his injury;
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(2) on 12 January 1992 at the house occupied by Miller at 86 Berneray Street, Milton, Glasgow, you did conduct yourself in a disorderly manner, shout and swear, place Patrick Hugh McHugh, senior, care of Saracen Police Office, Glasgow, in a state of fear and alarm and commit a breach of the peace;
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(3) on 12 January 1992 at the house occupied by Miller at 86 Berneray Street, Milton, Glasgow, you did while acting along with others, assault Patrick Hugh McHugh, senior, care of Saracen Police Office, Glasgow, seize him by the throat, hold him against a wall, pull him by the hair and punch and kick him repeatedly on the head and body to his injury;
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(4) on 12 January 1992 at the house then occupied by said Patrick Hugh McHugh, senior, at 81 Berneray Street, Milton, Glasgow, while acting with John Dennis Miller and Thomas McKenzie McKinlay Armstrong, you did force your way into the house there and assault said Patrick Hugh McHugh, senior, June Mitchell Marshall or McHugh, Patrick Hugh McHugh, junior, then aged 15 years, Hugh McHugh, then aged 13 years and Robert Mitchell McHugh, then aged 11 years, all care of Saracen Police Office, Glasgow, present a sawn on shotgun at them, swear, place them in a state of fear and alarm and further place said sawn off shotgun against the head of said Patrick Hugh McHugh, senior, and strike him therewith, pull his hair, attempt to place the barrel of said sawn off shotgun in his mouth, threaten him with violence, strike him across the throat with knives, all to his severe injury, permanent disfigurement and danger of his life; and
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(5) you being an accused person and having been granted bail on 22 July 1992 at Glasgow sheriff court in relation to solemn proceedings and in terms of the Criminal Procedure (Scotland) Act 1975 and the Bail etc (Scotland) Act 1980, did on 30 June 1993 without reasonable excuse, fail to appear at a diet at the High Court of Justiciary sitting at Glasgow of which you had been given due notice, and being a diet in respect of solemn proceedings: contrary to the Bail etc (Scotland) Act 1980, sec 3(3).”
The cause came to trial before the temporary judge (Wilkinson, QC) and a jury in the High Court of Justiciary at Glasgow.
After trial the pannel was found guilty of charges 1,4 (under deletion of “and the danger of his life”) and 5.
The pannel thereafter appealed to the High Court of Justiciary against conviction.
Cases referred to:
Batchelor v Partisan and MackersyUNK (1876) 3 R 914
Beattie v HM Advocate 1995 SLT 275
Boner v United Kingdom; Maxwell v United KingdomUNK 1995 SCCR 1
Brodie v HM AdvocateUNK 1993 SCCR 371
Church v HM Advocate 1995 SLT 604
Dolan v HM Advocate Criminal Appeal Court, 29 April 1993. unreported (1993 GWD 24–1496)
EGB v R (1992) 17 CR (4th) 330
Elliott v HM AdvocateSC 1995 JC 95
Farrell v HM Advocate, Criminal Appeal Court, 18 March 1994, unreported (1994 GWD 17–1051)
Glaston v HM Advocate Criminal Appeal Court, 19 March 1992, unreported (1992 GWD 19–1095)
Granger v United Kingdom [1990] TLR 256
Holden v HM Advocate Criminal Appeal Court, 18 December 1992, unreported (1993 GWD 8–542)
McCarroll v HM AdvocateSC 1949 JC 10
Maitland v HM Advocate 1993 SLT 645
Mills v The QueenWLR [1995] 1 WLR 511
R v Birks (1990) 19 NSWLR 677
R v ClintonWLR [1993] 1 WLR 1181
R v EnsorWLR [1989] 1 WLR 497
R v Garofoli (1988) 41 CCC (3rd) 103
R v Gautam, The Times, 4 March 1987
R v McLoughlin [1985] 1 NZLR 106
R v Sandford (1994) 72 A Crim R 106
R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696
R v Wellings Court of Appeal (Criminal Division), 20 December 1991, unreported Rondel v WorsleyELR [1969] 1 AC 191
S v Bennett 1994 (1) SACR 392 (C).
Sankar v The State of Trinidad and TobagoWLR [1995] 1 WLR 194
Strickland v Washington (1984) 466 US 668
Turnbull v HM Advocate 1948 SLT (Notes) 12
Textbooks referred to:
Dobie, Sheriff Court Practice, p 491
Hume on Crimes (3rd edn), ii, 283
Renton and Brown, Criminal Procedure (5th edn), para 11–40
The cause called before the High Court of Justiciary on 21 June 1995 when their Lordships remitted the cause to be heard before a bench of five Lords Commissioners of Justiciary.
The cause thereafter called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), the Lord Justice-Clerk (Ross), Lord Sutherland, Lord Cameron of Lochbroom and Lord Johnston for a hearing on 14 and 15 November 1995. On 15 November 1995 their Lordships made avizandum.
At advising, on 1 December 1995, the opinion of the court was delivered by the Lord Justice-General (Hope).
Opinion of the Court—The appellant was found guilty in the High Court at Glasgow on two charges of assault and of a contravention of sec 3(3) of the Bail etc (Scotland) Act 1980. He was sentenced to a total of three years and nine months' imprisonment. The second of the two assault charges, which was the most serious charge on this indictment, related to an incident at the house then occupied by Patrick Hugh McHugh, senior, at 81 Berneray Street, Milton, Glasgow. The appellant was convicted of having forced his way into the house and assaulted Mr McHugh and his wife and three children by presenting a sawn off shotgun at them and committing various acts of...
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