Act: Dawson; Macbeth Currie

Alt: D E L Johnston, Q.C.; Anderson Strathern

25 June 2010

[1] The applicant was charged on summary complaint with assault and breach of the peace at the Dunrowan Resource Centre. She proceeded to trial at Falkirk Sheriff Court on 28 October 2008. Although there is some confusion on this matter, it was the Commission's understanding that the applicant was convicted of the breach of the peace and acquitted of the assault. The penalty was admonition.

[2] The applicant complained about the quality of her representation to the Commission in terms of sub-section (2)(1) of the Legal Profession and Legal Aid (Scotland) Act 2007. In particular, she maintained that her solicitor had: been unfamiliar with her case; agreed to evidence which she did not accept; failed to obtain an "Appropriate Adult" to be with her in court; failed to call relevant witnesses; failed to lodge relevant productions; threatened to withdraw from acting; failed to persuade the sheriff that he (the solicitor) could not properly represent the applicant; lacked interest in the case; failed to complain that the applicant had been victimised during the trial; not raised the issue of provocation; failed to raise issues of racial and disability discrimination; failed to assist her after the conviction; and, finally, tried to persuade her to plead guilty.

[3] On 14 October 2009 the complaint was dismissed by the Commission as "totally without merit" in terms of sub-section 2(4) of the 2007 Act. The Commission considered how a reasonable person might perceive the complaint in light of the information presented to them. They observed that, on 23 October 2008, prior to the trial, there had been a lengthy meeting between the applicant and the solicitor, after which the solicitor thought that he had understood the case. He had witness statements from the procurator fiscal, which he went through with the applicant and noted her position. He had tried unsuccessfully to persuade the procurator fiscal not to proceed with the charges given the applicant's Asperger's syndrome. The Commission noted that, in her initial complaint, the applicant had not stated what witnesses might have been called and which productions could have been lodged for the defence. There was a psychiatric report, which the court has been told was dated April 2008, stating that the applicant was sane and fit to plead (in the sense of being able to understand the proceedings and give appropriate instructions) and the solicitor had not considered that an Appropriate Adult was required. There had been two occasions when the solicitor had considered withdrawing from acting, once when there was a problem with legal aid and once following a personal comment, which the solicitor said the applicant had made towards him. In the event, he did not withdraw from acting on any of these grounds, although two previous solicitors had done so.

[4] On 14 October 2009 the Commission concluded that there was nothing to suggest that the solicitor had failed to conduct the trial in an appropriate manner, using his professional judgment and expertise in that respect. No evidence of inadequate professional service, unsatisfactory professional conduct or professional misconduct had, in the view of the Commission, been made out.

[5] In her written application, the applicant seeks to appeal the Commission's decision on the basis that, in a letter to the Commission dated 1 September 2009, she had specified the names of two witnesses, notably M.W., her husband, and R.P., who the applicant says should have been precognosced and called to testify. That letter had referred to the solicitor's failure to lodge a medical report on, and photographs of, the applicant's injuries which she had received, she said, when she had been in custody. The solicitor should also have obtained a report from the applicant's general medical practitioner concerning not only her injuries but the applicant's account of how she had sustained them. Furthermore, the Commission had a letter from the applicant dated 17 September 2009 complaining about the solicitor agreeing the evidence of a police officer.

[6] The Commission's enquiry had revealed that the solicitor had explained that he had discussed agreeing the evidence of the police officer with the applicant and his position was that she had consented to it being agreed. At no point during that enquiry had it been explained to the Commission what the relevance of the named witnesses' testimony might be. Neither had been present at the time of the incidents. At no point either had the applicant explained the relevance of the productions which she wished lodged.

[7] Before granting leave to appeal, the Court requires to be satisfied that an appeal in terms of section 21 of the 2007 Act has a real prospect of success or that there is some other compelling reason why it should be heard. The available grounds specified in section 21 are essentially matters which would previously have been described as errors of law. The Court does not consider that any of these grounds has been made out.

[8] Before the Court, a detailed explanation was given about a number of potential grounds of appeal which were said, in particular, to be relevant to sub-sections 21(4)(a) to (c). These included that certain matters ought to have been taken into consideration by the Commission and that further enquiries ought to have been carried out by the Commission in light of the information proffered by the applicant. It was also said that the solicitor had failed to advance certain defences, including automatism and self defence, at the trial and that proper enquiries had not been made by him in advance of the trial. Although much detail was given of potential grounds of appeal, it is not unreasonable to comment that these are not foreshadowed in the written application for leave to appeal before the Court. Indeed, in the application itself there is no attempt to categorise any of the complaints narrated in paragraphs 2(a), (b) and (c) of the application in terms of section 21(4). But, in any event, it remains the position, when looking at the papers which were before the Commission, that the applicant did not explain what relevance the witnesses or productions might have had in the context of the summary trial. The facts presented even now by the applicant would not have constituted a defence of automatism or self defence and provocation is not a defence. The significance of agreeing the policeman's evidence was also not explained, given that the officer was simply corroborating a colleague. Apart from these matters, the complaint appears to relate primarily to the applicant's impression of the solicitor's attitude rather than to his conduct. Indeed, from the information presented to the Commission, the solicitor appears to have taken on the applicant's case at short notice, presented the relevant salient features of it to the Sheriff and achieved a measure of success. He had asked for an adjournment of the trial but this had been refused because the diet had been the fifth fixed for trial. In these circumstances, like the Commission, the Court does not consider that it has been demonstrated that there is any merit in the applicant's case, as it was presented to the Commission. This application for leave to appeal is therefore refused.