John Mitchell v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Slynn of Hadley |
| Judgment Date | 28 June 1999 |
| Judgment citation (vLex) | [1999] UKPC J0628-1 |
| Court | Privy Council |
| Docket Number | Appeal No. 62 of 1998 |
| Date | 28 June 1999 |
[1999] UKPC J0628-1
Present at the hearing:-
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Clyde
Lord Hutton
Privy Council
[Delivered by Lord Slynn of Hadley]
On 30th May 1996 the appellant was convicted of the capital murder of George Taylor on 14th April 1992 by shooting him and was sentenced to death. His co-accused, who has not appealed, was convicted of manslaughter and sentenced to five years' hard labour. The appellant appealed to the Court of Appeal which on 1st December 1997 dismissed his appeal, giving their reasons on 12th January 1998.
The ground raised on that appeal is in essence the first ground raised before their Lordships and arose out of matters which occurred at an early stage of the trial as a result of which the appellant was unrepresented. Accordingly he contends that he was thereby deprived of a fair trial.
To appreciate the arguments put forward on both sides it is necessary to recount what happened. On the first day of the hearing Mrs. Harrison-Henry, his senior counsel for whom a legal aid assignment had been granted, cross-examined the first witness who described events shortly before the shooting but did not say anything to link the accused with them. She did not ask any questions of the second witness, the deceased's sister, who identified the deceased. On the second day in the presence of the jury Mrs. Harrison-Henry told the judge that the appellant wished to cross-examine the witnesses himself. The judge asked if she had advised him; she said that she had not but that "if it is that he does not wish me to cross-examine the witnesses, then I will ask Your Lordship to allow me to terminate my assignment in the matter". The judge asked "At this stage?" which counsel confirmed. The appellant said that he would like to do the cross-examination himself. The judge told him that this was a very serious charge, that he was not trained in the law and that his attorney "as you have seen, cross-examines the witness as she thinks fit". The appellant said in effect that he was not satisfied with the cross-examination. Mrs. Harrison-Henry then said "This is a legal-aid assignment, M'Lord. I believe that the accused man has said more than enough. He does not want me in the matter". The judge then spoke to the accused:-
"HIS LORDSHIP: Counsel is assigned to you. If you do not want Counsel then you are on your own. The case has already started. It's in progress. As far as I have seen Counsel has done nothing wrong."
ACCUSED: I haven't said she has done anything wrong.
HIS LORDSHIP: I do not know what you want Counsel to ask because nobody has said anything against you up to now, and you are clearly to understand this. If you are going to reject Counsel at this stage I am not going to provide you with another Counsel.
ACCUSED: I can do it on my own, m'Lord.
HIS LORDSHIP: This is what you want?
ACCUSED: Yes, m'Lord."
Then after a short adjournment and in the absence of the jury the following exchanges took place:-
"HIS LORDSHIP: As I told you earlier the charge is a very serious charge. It's a charge that involves a lot of law. Now, your Counsel is trained in law. You are not so trained, and I think it would be a wise thing to do if you reconsider your position. Nobody is forcing you to do anything, but I think you should abide by the advice of your Counsel.
ACCUSED: M'Lord …
HIS LORDSHIP: There are matters that you are not going to be able to handle, matters of law.
ACCUSED: Might I explain something to you, m'Lord?
HIS LORDSHIP: No, no, I don't want any explanation. I am telling you the situation as it is.
ACCUSED: I heard.
HIS LORDSHIP: You see, Counsel in her judgement knows what questions to ask and when to ask these questions. Now, without Counsel you would be on your own and I can only assist in certain areas. You understand that? Now, do you want to reconsider what you have said earlier?
ACCUSED: Yes, m'Lord, I am going to take it into consideration.
HIS LORDSHIP: What do you wish me to do?
ACCUSED: The point is, m'Lord, I do not really understand the full procedure.
HIS LORDSHIP: You don't understand the full procedure? This is what you are saying?
ACCUSED: You can outline certain things to me. I thought that after the witness finish speak I could have the opportunity to speak to the witness to ask questions."
Having been told that counsel would know what questions to ask the appellant said:-
"ACCUSED: M'Lord, at the first place, m'Lord my Attorney she tried to push me to say things which I haven't said.
HIS LORDSHIP: But you are not saying anything. Nobody has asked you to say anything.
ACCUSED: M'Lord, she speak to me over and over and all she trying to tell me is that if I accept that I give a statement to the police or I signed a statement which I told her I did not do, then she would able to help me, but unless I accept that, she can't help me. Now, I don't think that is right. I can't accept things that I haven't done.
HIS LORDSHIP: Just a minute. Have you reached the stage where you think it's best to go it alone, or do you wish to continue with the services of your Counsel?
ACCUSED: I think it is best for me to defend myself.
HIS LORDSHIP: Very well, if that is your wish. I have explained to you all the difficulties it might encounter, so I will allow you to conduct the trial yourself. I can only help you in certain areas. I can't act as Counsel on your behalf. You are clearly to understand that."
The judge asked counsel to stay so as to be able to address him on a point of law if that arose. He said that he would not allow Mrs. Harrison-Henry to withdraw. She said that she could do nothing to help the accused, that she had never told him to accept a police statement and that she would be in great difficulty. The judge commented:-
"HIS LORDSHIP: Well, there are two Counsel that appears for you. Would you be prepared to go along with Miss Rose-Green or you still want to go on your own?
ACCUSED: M'Lord, I leave everything to your opinion. Anything you wish, m'Lord.
HIS LORDSHIP: What you want?
ACCUSED: I already made up my mind that I see where people seem to be displeased of my idea. Might as well I just let it continue."
Miss Rose-Green, the junior counsel assigned to him said that she had done a lot of work with Mrs. Henry and that:-
"If he is dissatisfied with Mrs. Henry I am sure he is going to be equally dissatisfied with myself, and I am not sure I would be comfortable to continue with this matter."
The appellant said "She doesn't want to defend me" and that he would continue with the case and defend himself. The judge then asked Miss Rose-Green, despite her evident reluctance to do so, to stay to help him on a point of law but "I wouldn't be asking you to take part in the trial". Prosecution counsel then submitted that one of the two ought to stay in accordance with the rules.
The jury came back and the judge told the appellant that he would be provided with all the relevant documents and he adjourned the hearing until the next day, 22nd May. At the resumed hearing on 22nd May in the absence of the jury Miss Rose-Green applied to be released from the case; since the appellant had told her that she and Mrs. Henry had worked on the case and "conspired to ensure a conviction in this case", she ought not to be required to continue. She stressed that under section 20(6)(c) of the Constitution the accused "shall be permitted to defend himself in person or by a legal representative of his choice" and that he could not be obliged to take counsel he did not want. The judge agreed to release her. The accused was asked whether he had any witnesses and he gave the name of his daughter and her mother. The first prosecution witness was then called. He was a man who had been with the deceased in his commercial van shortly before the shooting and he identified the accused as being there. At the conclusion of his evidence-in-chief the appellant was asked if he had any questions. The following exchange then took place:-
"ACCUSED: I would prefer him to come back a next day.
HIS LORDSHIP: No, No, any question you have to ask you ask him now.
ACCUSED: But, m'lord, I have to look at both files to ask the questions.
HIS LORDSHIP: You had those from last night. Please start asking him those questions.
ACCUSED: M'Lord, I didn't have much time to read because no light is not in the cell, so I just get a little time to read.
HIS LORDSHIP: You got the depositions from yesterday afternoon, in the day.
ACCUSED: In the evening, sir.
HIS LORDSHIP: Yes? You got them from yesterday.
ACCUSED: Yes, sir I get them in the evening yesterday, sir.
HIS LORDSHIP: And you read them?
ACCUSED: I read a part when I went down.
HIS LORDSHIP: Now, what is it you want time to do?
ACCUSED: I want to look at the first statement he gave and the second one.
HIS LORDSHIP: Well, you have to start questioning him now, I cannot stretch out this matter.
ACCUSED: I am not prepared, I am not prepared to ask him questions now, m'lord."
The judge then agreed that cross-examination of this witness could take place on 24th May. The same course was taken with the second witness who also identified the appellant, the judge saying "please understand that you will do your cross-examination on Friday [24th May]. In other words you are not going to get any more time".
The trial proceeded on 24th, 27th, 28th, 29th and 30th May.
The appellant contends that the judge should have done more to persuade counsel to remain in the case and/or discharge the jury and adjourn the case to enable the accused to seek alternative representation. He was in the result deprived of his constitutional right under section 20(6) of the Constitution which provides that:-
"Every person who is charged with a criminal...
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