A.j.e. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord McCluskey,Lord Hamilton,Lord Justice Clerk |
| Court | High Court of Justiciary |
| Date | 06 February 2002 |
| Docket Number | 42/98 |
| Published date | 28 March 2002 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Hamilton Lord McCluskey
| Appeal No: 42/98 OPINION of THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by A.J.E. Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Party
Respondent: Dewar, AD; Crown Agent
6 February 2002
Introduction
[1]The appellant was convicted at Glasgow High Court on 12 January 1998 on two charges of rape and was sentenced to seven years imprisonment. The charges were particularly serious and unpleasant since it was alleged that the appellant had raped the complainers, L and A, when they were both still in infancy. Worse still, charge 1 alleged that the appellant had raped the complainer L, on a number of occasions over a period of about two years.
[2]For various procedural reasons that are not germane to the grounds of appeal, this appeal has only now come out for hearing. The appellant has been in custody since the date of his conviction.
[3]The appellant conducted his appeal in person. At the conclusion of the hearing we were satisfied that this appeal must be allowed. So that the appellant would be released at once, we announced our decision and intimated that we would give our reasons in writing later. The advocate depute then moved us to authorise the bringing of a new prosecution. We refused that motion. I shall return to that point later.
The grounds of appeal
[4]The appellant has put forward three grounds. The first is that his defence was not presented adequately at the trial (Anderson v HM Adv, 1996 JC 29). The second is that the verdict was one that no reasonable jury, properly directed, could have returned. This is based on section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), as amended. The third ground of appeal is an application to lead new evidence. Since we have decided to allow the appeal, I shall say no more about the third ground.
Decision
[5]In my opinion we should allow the appeal on both the first and second grounds. In making the following comments, I gratefully adopt Lord McCluskey's comprehensive analysis of the case.
Ground of appeal (1) (Anderson v HM Adv)
[6]I would allow the appeal on this ground for the reasons given by Lord McCluskey.
[7]Anderson v HM Adv (supra) draws a distinction between a failure by an advocate to present the defence that the accused instructs him to present and the making of a judgment by the advocate as to the manner in which that defence should be presented in the course of the trial. In the former case it can be said that the accused has been deprived of his right to a fair trial. In the latter case, in general, the accused is bound by the way in which his defence has been presented on his behalf (Anderson v HM Adv, supra, at pp. 43-44). A decision made by counsel in the conduct of the defence at the trial is, for the most part, a matter for his professional discretion and judgment. The soundness of such a decision cannot normally be the subject of an appeal, even if that question is one on which views might reasonably differ.
[8]The distinction made in Anderson is straightforward and easily understood in the context of that case; but in my view the distinction should not be applied too rigidly. There may be circumstances in which the court can hold that the conduct of the defence at the trial was such as to deny the accused a fair trial; for example, where the defence instructed was presented with complete ineptitude or where counsel made some decision that was so absurd as to defy all good sense (McIntyre v HM Adv, 1998 SCCR 379, Lord Coulsfield at p. 388E-G). Those are extreme cases; but they are consistent, in my view, with the underlying principle that in an Anderson appeal the court is concerned to know whether the presentation of the appellant's defence was such that he did not receive a fair trial.
[9]The court may answer that question by considering the pre-trial decisions made by counsel: for example, whether to follow up certain lines of enquiry, whether to cite this witness or that, whether to lodge a special defence, and so on. But when counsel makes a decision as to the line of defence that is not in accordance with his client's instructions, the effects of that decision may become manifest in the judgments made by him during the course of the trial. The court may therefore have to consider the conduct of the defence at the trial in order to assess the consequences of a decision that is apparently contrary to instructions: for example, by considering the significance of a decision to cross examine or not to cross examine a certain witness, whether or not to ask a particular question or pursue a particular line, whether or not to lead a certain witness, and so on.
[10]It is apparent that during the preparations for the trial in this case, senior counsel decided that certain relevant and significant lines of defence urged upon him by the appellant should not be pursued. The consequence of that decision was that senior counsel perilled the whole defence on the high-risk strategy of bringing out contradictions and inconsistencies in the evidence and prior statements of the girls, and presenting the case to the jury as a contest in credibility between the girls and the appellant. This was reflected in senior counsel's minimalist approach to cross-examination.
[11]The advocate depute argued that the conduct of the defence at the trial simply raised matters of professional judgment as to tactics and presentation; but that is a superficial argument. An appraisal of the conduct of the defence during the trial certainly raises questions of professional judgment; but the important point, so far as this ground of appeal is concerned, is that the judgments made during the trial were predetermined by the earlier decision of counsel to confine the defence to the single line to which I have referred.
[12]The effects of that earlier decision became apparent in a number of professional judgments made at the trial which, in my view, fell within the category of a failure properly to put forward the defence that the appellant had instructed. I agree with Lord McCluskey that that category would include the strategic decision not to cross-examine the girls' mother on the line that she herself, whether from enmity towards the appellant or from her own special sensitivity to sexual abuse, had inspired the allegations.
[13]On reading the transcript carefully I think that it is obvious how the pre-trial decision on the line of defence needlessly restricted counsel's options at the trial. Because of the limited nature of the defence, numerous weaknesses in the Crown case were not brought out thoroughly or were passed over altogether. I shall mention one example. It relates to the evidence of Mrs Susan Dick, the social worker who was present at the interviews of the girls. This evidence is one of the most troubling aspects of the case. Mrs Dick had been a social worker for only 31/2 years and had yet to complete a course in child protection. Her only relevant qualification was a diploma in social work.
[14]In the course of examination in chief of Mrs Dick, the advocate depute raised with her certain contradictions and inconsistencies in the accounts given by L. and the general question of A.'s ability to understand what had happened to her and to express that understanding to others. The advocate depute's purpose was, I infer, to enable Mrs Dick to lend her support to the view that the girls were credible and reliable to the extent that they incriminated the appellant. In my opinion, this was not a proper line of evidence to pursue with that witness. The line of evidence should have been objected to. In the event the evidence was led without objection and Mrs Dick was given the opportunity to express views on child psychology in order to explain away certain obvious difficulties in the girls' evidence. One possible explanation that Mrs Dick did not mention was that the girls might be neither credible nor reliable.
[15]The problem for the defence was that when Mrs Dick expressed these psychological opinions, senior counsel for the defence had no effective counter-measures to hand. Mrs Dick's evidence in chief occupies 32 pages of the transcript. Senior counsel's somewhat perfunctory cross-examination occupies 31/2. In the course of that cross-examination senior counsel did not challenge Mrs Dick on the limitations of her qualifications and experience.
[16]Having renounced the option of seeking expert advice on the reliability of the girls' statements at interview, senior counsel had denied himself the opportunity to contradict Mrs Dick's unqualified opinions with positive evidence. If that matter had been followed up before the trial, the defence might well have had evidence available from an expert witness, such as Dr. William Thomson whose opinion the appellant obtained some time after the trial. Evidence of that kind would have shown the girls' interviews in an entirely different light and would have been evidence from someone who was genuinely qualified to speak on the subject.
[17]The result of the defence strategy was that senior counsel went to the jury with only the single line of defence to which I have referred. This meant that if the jury were not to accept the basic contention that they should accept the appellant's word rather than that of the girls, they were being offered no other specific reason for acquitting.
[18]In my view, it is clear that the defence was not presented in accordance with the appellant's express wishes and that, on that account, the appellant did not receive a fair trial.
Ground of appeal (2) (section 106(3)(b))
[19]In my view, the appeal should also be allowed under section 106(3)(b). In this case there was evidence before the jury that was technically sufficient to entitle them to convict on both charges. The defence did not submit that there was no...
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