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WESTON JOHN ROSS VENTERS v. HER MAJESTY'S ADVOCATE [1999] ScotHC 93 (28th April, 1999)

Lord Justice Clerk

Lord Eassie

Lord Morison

Appeal No: C13/96

HIGH COURT OF JUSTICIARY

OPINION OF THE LORD JUSTICE CLERK

NOTE OF APPEAL

WESTON JOHN ROSS VENTERS

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

______

Appellant: McBride, Shead; McCusker, McElroy & Co.

Respondent: Bell, Q.C., A.D.; Crown Agent

28 April 1999

On 15 December 1995 the appellant was found guilty, by a majority verdict of the jury, of a charge of attempted murder; and, by a unanimous verdict, of a charge of assault. He received a cumulo sentence of ten years imprisonment, backdated to 17 July 1995.

He originally submitted grounds of appeal against his conviction and sentence without legal assistance. Thereafter these grounds were replaced by additional grounds of appeal prepared by counsel. This opinion is concerned with his appeal against conviction.

The circumstances to which the charges related were as follows. In the early hours of 7 July 1995 the complainer in the first charge (to whom I will refer as "the complainer") left his flat at 16 Caledonian Road, Edinburgh and went down to the street. The Crown case was that as soon as he got there the appellant struck him on the head with a knife or similar instrument and knocked him to the ground, and then repeatedly stabbed him on the head and body with a knife or similar instrument, causing him wounds in the chest and the left arm. There was evidence that the appellant ran from the scene, and was pursued by the complainer's wife and children. The second charge related to an assault on the complainer's wife after she had caught up with him in Caledonian Place. Later in the day a knife, which was stained with blood of the same group as that on the complainer's T-shirt, was found in the area.

In the circumstances to which I will refer later in this opinion the appellant claimed during the course of the trial that he had been acting in self-defence. The first ground of appeal is that the trial judge erred in failing to direct the jury on the question of provocation. This ground of appeal is without foundation. On this point I am in full agreement with the opinion given by Lord Morison, and it would be superfluous for me to add anything to his remarks on that subject.

Before coming to the second and third grounds of appeal, it is necessary for me to set out the background to which they relate. The trial commenced on Friday 8 December 1995 before Lord Abernethy. The appellant was represented by his counsel, Mr. Kelly, and his instructing agents. At the outset Mr. Kelly tendered on his behalf special defences of alibi and incrimination, which were read to the jury in the normal fashion. The latter accused, Ricki Venters, the appellant's brother, and Robert Cormack, his cousin. On the first day of the trial evidence was given by the complainer, his wife and two daughters and a friend of one of them. These witnesses were cross-examined on the basis that the appellant had not been present at the scene, and accordingly that evidence identifying him was either false or mistaken.

When the case was called on the following Monday Mr. Kelly informed the trial judge, outwith the presence of the jury, that the appellant wished to change his instructions and, contrary to his advice, put forward a defence of self-defence. If that defence was to proceed, he and his instructing agents would have no alternative but to withdraw from acting for him. However, he offered to consult with the appellant in order to advise him as to his position. The trial judge then addressed the appellant directly, asking him what he proposed to do. During the course of the discussion which followed he pointed out to the appellant that a defence of self-defence would be contradictory of his previous defences. He also observed that Mr. Kelly was his third counsel within the space of a few weeks. Shortly thereafter the trial judge said to the appellant: "Are you going to go on representing yourself or do you want time to take up the opportunity of Mr. Kelly's offer to advise on how to proceed?".

The appellant replied: "I would like some advice because I do not know much about the law". Shortly thereafter, there occurred this passage, according to the transcript:

"Lord Abernethy: ...Do you want to take advantage of Mr. Kelly's offer of advice before we continue with the trial? Is that what you want to do? If you don't take Mr. Kelly's advice that means he will have to withdraw as he has explained and then you will have to carry on on your own. Do you understand that?

Mr. Venters: I think so.

Lord Abernethy: Are you quite sure about that?

Mr. Venters: I would like...

Lord Abernethy: Are you quite clear, if you proceed with this, then Mr. Kelly will have to withdraw and you will have to go on on your own. Are you quite clear about that?

Mr. Venters: Mr. Kelly has only spoken to me briefly, I would like to speak to him again, if it is possible.

Lord Abernethy: Very well, I will give you a short adjournment and we will have the court commenced again at 12 o'clock".

When the court reassembled after a short adjournment, again outwith the presence of the jury, Mr. Kelly informed the trial judge that he had instructions along the lines which the appellant had indicated; and that there was no alternative but for him and his instructing agents to withdraw. They had offered such advice as they could to the appellant, and in these circumstances there was little more that they could do to assist. Mr. Kelly and his instructing agents then withdrew. Thereafter there was the following discussion:

"Lord Abernethy: Mr. Venters, what is your position?

Mr. Venters: Well, I was advised by Mr. Kelly I should ask you if possible that I should ask for another counsel to come in but that there would be several problem (sic)with different counsel. At the worst, I should be speaking for myself. I would be given help.

Lord Abernethy: Help by whom?

Mr. Venters: Help in general paperwork.

Lord Abernethy: But who is going to help you?

Mr. Venters: Well I have just got all the notes.

Lord Abernethy: I see, help from your notes?

Mr. Venters: Help for cross-examination and things, and basically counsel thought it may be wise for me to ask for a delay in order to prepare the case in more detail.

Lord Abernethy: Why should you have further time when we have already...

Mr. Venters: I was advised on that.

Lord Abernethy: And who would advise you?

Mr. Venters: Mr. Kelly has advised me to ask for some more time to go and prepare the case but I should say, I am quite happy to go ahead with it as soon as possible.

Lord Abernethy: You are quite happy to go ahead.

Mr. Venters: Yes".

At that point the Advocate depute indicated the order in which he would be calling further witnesses. The trial proceeded. At no stage did the appellant have legal advice while he was conducting his own defence, and this was not suggested by the trial judge. The appellant represented himself and cross-examined the witnesses called by the Crown. He gave evidence on his own behalf, in the course of which he said he had been drinking and had taken a smoke of marijuana. He was singing as he was passing the complainer's house. He remembered that as the complainer came out of his house he heard a metallic object fall and he picked it up. He was then struck on the back by the complainer with a scaffolding pole and was winded. There was a struggle and he did not remember any more than that. He could not have run away, as the Crown witnesses alleged, because he was unable to run due to his lack of mobility. However, he accepted that he was in Caledonian Place a short time later where he was confronted by the complainer's wife. After he gave evidence that appellant sought the recall of the witnesses who had given evidence on the first day of the trial in order to cross-examine them on his line of defence. Upon the view that the only one of them who could give evidence in regard to the assault on the complainer was the complainer himself, the trial judge refused that request save in regard to the complainer.

Mr. McBride explained the history of the representation of the appellant prior to the commencement of the trial. While the trial judge had given an account of this in his report, it was clear that he had not been given the full circumstances in which other counsel and agents had withdrawn from acting for the appellant. Counsel who appeared for the appellant in November 1995 had successfully moved the court to adjourn the trial to a later date because of the need for the defence to trace late witnesses. At the end of November there had been a change of representation of the appellant as a result of a disagreement as to whether the character of the complainer should be attacked. Thereafter there was a further change of representation when it was discovered that his new agents could not act for him because of a conflict of interest. Mr. McBride said it was clear that two sets of agents had withdrawn for professional reasons, and that there was no question of the appellant changing his position or causing them any difficulty in representing him. Mr. Kelly and new agents consulted with the appellant on the evening of 6 December. On the following morning the case called before Lord Abernethy for the first time. Mr. Kelly explained that there had been a recent change in agency and sought to have the case continued to another sitting in order that appellant's mobility could be assessed by means of a medical examination. He also had information that there was a possible eye witness who might be of assistance to the defence. Mr. Kelly's motion was opposed by the Advocate depute. Lord Abernethy continued the case until the following morning when, as I have already noted, the trial commenced.

Mr. McBride submitted that the appellant had not been given the opportunity to ask for further representation at the trial: and accordingly, in the terms of the second ground of appeal, justice was not done nor seen to be done. As regards the discussion which took place in court on the second day of the trial before the adjournment, Mr. McBride founded on the fact that the trial judge made it clear to the appellant that unless he continued to be represented by Mr. Kelly he would require to represent himself. It was wholly premature for him to say that. After the adjournment and the withdrawal of Mr. Kelly and his instructing agents the appellant had attempted, although in an oblique fashion, to suggest that he should be allowed to be represented by another counsel or at least should be given some assistance in conducting his own defence. In the result the appellant was given neither opportunity, let alone any time in which to prepare his defence, although he indicated that he was quite prepared to go ahead with it "as soon as possible". The appellant had to do so immediately, conduct the cross-examination of witnesses and in due course address the jury. This was a highly unsatisfactory state of affairs, especially in view of the nature of the charge and the issues which arose in it, such as self-defence and accident. Although he had legal aid to be represented by counsel and agent he continued without the benefit of legal representation or legal advice. As was plain from various passages in the transcript, which were referred to by way of example, he did not understand, and had great difficulty with, the rules of procedure and evidence. There was no equality of arms: his opponent was a highly experienced Advocate depute who had counsel assisting him. He had been provided with copies of the defence statements and Crown precognitions. As could be seen his questions were repetitive. He did not understand the function of cross-examination and re-examination. Passages in the evidence turned into a debate between him and the trial judge. On occasions the trial judge had to tell him to be quiet. He had not received legal advice as to the implications of giving or not giving evidence on his own behalf. As was stated in the third ground of appeal he was not warned that he did not require to give evidence on his own behalf. Without legal assistance he had been unable to make an articulate presentation of his position on the issues at the trial. Nothing said on his behalf as to the deletions which the jury might make, or the riders which they might add, in the event of their convicting him. All these consequences resulted from the lack of representation. Even if it had been the appellant's fault that he had lost the services of Mr. Kelly and his instructing agents, this was not the only consideration. He was not competent to represent himself. It would have required only 24 hours for another counsel to be instructed in place of Mr. Kelly. In the present case there was no question of every reasonable avenue having been exhausted before it was decided that he would have to represent himself.

In support of his submissions Mr. McBride founded on the decision of the European Court of Human Rights in Boner v. U.K.; Maxwell v. U.K. 1995 S.C.C.R. 1. In that case it was held that there had been a violation of article 6(3)(c) of the European Convention on Human Rights by reason of the refusal of legal aid for an appeal against conviction relating, in the case of Maxwell, to a charge of assault to severe injury and permanent disfigurement. It was held that the fact that the legal issues might not have been particularly complex, that he himself had formulated the grounds for his appeal and that counsel had not been prepared to represent him did not alter the fact that without the services of a legal practitioner he was unable competently to address the court on the legal issues in his appeal and thus defend himself effectively. It was also held that given the nature of the proceedings, the wide powers of the High Court, the limited capacity of an unrepresented appellant to present a legal argument and, above all, the importance of the issue at stake in view of the severity of the sentence, the interests of justice required that the appellant should have been granted legal aid for his representation at the hearing of the appeal. Mr. McBride submitted that, mutatis mutandis, the same applied to the trial in the present case. In the circumstances justice was neither done nor seen to be done.

In reply the Advocate depute pointed out that prior to the start of the trial the defence had been given the benefit of a number of postponements of the diet in order to complete their investigations. The appellant had been professionally represented on the first day of the trial, during which Crown witnesses had been cross-examined on the basis of the special defence of alibi. On the second day of the trial the appellant had elected to make a radical change in the nature of his defence and adopt a position which was inconsistent with a defence of alibi. In the discussion before the adjournment it was unfortunate that the trial judge said to the appellant he would have to continue by himself if he did not accept Mr. Kelly's advice. However, he had given him the opportunity of consulting with Mr. Kelly during that adjournment. As regards what happened after the adjournment, it was important to bear in mind that the appellant had brought about the situation in which, after every opportunity had been given for preparation and after the first day of the trial, he elected to adopt a radically different defence. If he had made a motion for a further adjournment to enable him to obtain fresh representation, the Crown would have opposed that motion. The trial judge would have had to weigh the personal interests of the appellant on the one hand against the public interest. A jury had already been empanelled and evidence had been given. The change in the appellant's position was an important matter in regard to the appellant's credibility. In due course he was examined about it. In the event the trial judge was not faced with a request from the appellant for an adjournment for this purpose but was told by him that he was happy to proceed. The Advocate depute accepted that if the appellant had not mentioned the matter of his own representation, the trial judge would have had the responsibility of raising the subject with him. An independent impartial observer would have been satisfied that the appellant had had the benefit of the preparation of his defence and that the evidence had been tested.

At the outset it is important to note this is not a case in which the court is being asked to decide whether the appellant did not receive a fair trial as a result of the trial judge refusing a motion by him for an adjournment to enable him to obtain further representation. If that motion had been refused by the trial judge it would be recognised that an accused person has no absolute right to representation. This court would have respected the decision as being a question for the discretion of the trial judge, provided that he had not acted on a wrong principle or in such a way as to cause a manifest injustice.

The question which I have to consider is whether the appellant was denied the opportunity to ask for further representation, and thereby justice was not seen to be done. For this purpose it is not, in my view, realistic to concentrate attention on the part of the discussion which took place after the adjournment. It is necessary to consider the discussion as a whole and against the background of the circumstances in which it took place. During the first part of the discussion the trial judge made it clear to the appellant on three occasions that, unless he took the advice of Mr. Kelly, namely not to put forward the defence of self-defence, he would require to represent himself. Thus far, in my view, it would have appeared to the impartial observer that he had decided that the appellant should have no further representation without giving him the opportunity to say whether he wanted to have such representation and, if so, what were the grounds for such a request and any adjournment which that would entail. I am unable to find anything in the subsequent discussion which shows that the trial judge ever corrected that impression. As I have already noted, when the appellant was asked what was his position following the withdrawal of Mr. Kelly and his instructing agents, he said:

"Well, I was advised by Mr. Kelly I should ask you if possible that I should ask for other counsel to come in but that there would be several problem with different counsel. At the worst, I should be speaking for myself".

I am unable to regard this passage as demonstrating that the appellant was electing to ignore the advice which he had apparently been given by Mr. Kelly that he should ask for another counsel to represent him. Instead it appears that the appellant was relaying the advice given to him by Mr. Kelly and making a half-hearted suggestion as to his further representation. However, the trial judge did not reopen that subject and made no reference to it. Instead, the discussion was immediately taken up with the question of the appellant having help in representing himself, and obtaining an adjournment to enable him to prepare for that purpose. The transcript conveys the unhappy impression that the question of the appellant obtaining further representation was treated by the judge as foreclosed and was regarded by the appellant as a cause that was all but lost. In this connection I note that on the fourth day of the trial during his examination of one of the Crown witnesses, whom he had called, the appellant objected to the trial judge confining the scope of his questioning. He said that he found this unjust "since I already stated that I should be entitled to proper representation"

It was suggested by the Advocate depute, as I have already noted, that the exchange between the trial judge and the appellant at the end of the discussion superseded this. In answer to the question posed by the trial judge as to who would advise the appellant the appellant said, as I have already noted: "Mr. Kelly has advised me to ask for some time to go and prepare the case but I should say, I am quite happy to go ahead with it as soon as possible". I cannot read that passage in isolation. It was not a statement made by an accused who has been given the opportunity to say whether or not he wishes to obtain further representation and to have an adjournment for that purpose, but one who has been told that in the event of his dispensing with Mr. Kelly, he would have to represent himself. Moreover, I have to bear in mind that too much should not be expected of a layman, and that statements such as these should not be given the same strictness of interpretation which would be applied in the case of a legal representative.

In the whole circumstances I have come to the conclusion that when these passages are looked at as a whole there was a failure on the part of the trial judge to ensure that justice was seen to be done, in particular through his appearing to foreclose the question of whether the appellant should have further legal representation. While that is my conclusion I must say that I have considerable sympathy with the position in which the trial judge found himself. The trial started after a number of previous adjournments which had been obtained at the instance of the defence. The trial judge faced with a radical change of direction on the part of the appellant after the first day of the trial when a number of Crown witnesses had been cross-examined on a special defence which was now to be departed from, and an inconsistent defence of self-defence was now to be pursued. In these circumstances it would not be surprising if a trial judge did not find this development frustrating. However, having regard to the way in which matters developed before him I am satisfied that the correct conclusion is that justice was not seen to be done.

In these circumstances I consider that the appellant's conviction of the charges should be quashed.

Lord Justice Clerk

Lord Eassie

Lord Morison

Appeal No: C13/96

HIGH COURT OF JUSTICIARY

OPINION OF LORD EASSIE

NOTE OF APPEAL

WESTON JOHN ROSS VENTERS

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

______

Appellant: McBride, Shead; McCusker, McElroy & Co.

Respondent: Bell, Q.C., A.D.; Crown Agent

28 April 1999

I agree with the opinion delivered by the Lord Justice Clerk.

The appellant's decision to change his line of defence from that of alibi and incrimination to that of self-defence indicated of course a lack of candour and honesty in his dealings with his legal advisers and thus rendered inevitable the withdrawal of counsel and solicitors. Coming as it did after the trial had already been underway for some time, and against a background of prior changes in representation, this change of instruction plainly created difficulties for the future course of the proceedings and I also have much sympathy for the trial judge in the position in which he was placed by the appellant's change of front.

However, it is clear from the transcript of what took place in the court prior to the granting of the short adjournment that the position immediately adopted by the trial judge was that if the appellant's counsel withdrew from acting - which was really inevitable - the appellant would be required to conduct his own defence without being given any opportunity to seek fresh legal representation. Your Lordship in the chair has quoted the relevant passages immediately preceding the short adjournment in which the trial judge, addressing the appellant personally, was at pains to make clear to him that if counsel withdrew he would require to conduct the case on his own and it is unnecessary for me to repeat them. Accordingly, at this point in the proceedings an observer of those proceedings could reasonably conclude that without any opportunity having been given to the appellant to say whether he wished to have an opportunity to seek other legal representation or advice, or to put forward any reasons for which he should be given time to seek such representation or advice, the trial judge had already decided that the appellant would not have such an opportunity and would be required to conduct his own case. While there may be circumstances in which, counsel having withdrawn from acting, a judge would be fully entitled to refuse a motion for an adjournment of the proceedings in order that the accused seek fresh representation, the presence of a legal representative to conduct the defence of an accused person is, in my view, generally an important element in the administration of justice and the appearance of justice being properly done.

In this appeal the Advocate depute said that it was unfortunate that the trial judge had told the appellant that he would have to continue by himself if he did not accept Mr. Kelly's advice and I agree that it is regrettable that the trial judge gave the appearance of having excluded from the outset any possibility of entertaining a request for an opportunity to obtain other legal representation.

The message so clearly conveyed by the trial judge to the appellant prior to the short adjournment that he would have to conduct his case on his own must, in my opinion, colour what was said when the court resumed. The appellant, on being asked his position, said in the passage already quoted by your Lordship in the chair:

To my mind it is apparent that conducting his own case was not what the appellant wished. His desire was for legal assistance in the shape of other counsel. The suggestion is put forward with a diffidence explicable in light of what had been so plainly said by the trial judge immediately prior to the adjournment. Whether the appellant was truly seeking to make a motion that he be granted such an adjournment was not explored by the trial judge, consistently no doubt with his having already decided that the appellant have no opportunity to seek fresh representation. The appellant went on a little later to say that

"Mr. Kelly has advised me to ask for some more time to go and prepare the case but I should say I am quite happy to go ahead with it as soon as possible".

In the context of what had gone before I am unable to read that passage as an expression of a desire or willingness to dispense with legal representation. The appellant was plainly not skilled in court procedures and it had previously been impressed upon him by the trial judge that in the circumstances which had in fact occurred, of counsel withdrawing, he would require to conduct his own case. Nothing was said by the trial judge after the adjournment which might indicate that the trial judge would be prepared to at least hear an application for an adjournment in order to seek legal representation.

Accordingly, looking to what occurred before and after the adjournment as a whole, I have come to the view that justice was not seen to be done. I would therefore allow the appeal.

Lord Justice Clerk

Lord Eassie

Lord Morison

Appeal No: C13/96

HIGH COURT OF JUSTICIARY

OPINION OF LORD MORISON

NOTE OF APPEAL

WESTON JOHN ROSS VENTERS

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

______

Appellant: McBride, Shead; McCusker, McElroy & Co.

Respondent: Bell, Q.C., A.D.; Crown Agent

28 April 1999

On 15 December the appellant was convicted after trial in Edinburgh High Court of two charges respectively of attempted murder and assault. He defended himself after counsel and solicitors acting for him withdrew during the course of the trial. The circumstances in which the charges were brought as spoken to in evidence at the trial were that the complainer Patrick Shevlin was in his flat in Caledonian Road, Edinburgh when he heard the appellant shouting at him from the street. He went down to investigate and was immediately attacked by the appellant, and as was later ascertained, was stabbed by him three times in the chest and once in the left arm. Shevlin's wife had observed part of the attack from a window of the flat, and she, her two daughters and friend went to the scene and pursued the appellant to an adjoining street where the appellant spat on her face, as libelled in the second charge. No question has been raised as to the sufficiency of the evidence led in support of either of these charges.

The appellant lodged grounds of appeal against conviction on his own behalf dealing principally with the final judge's alleged failure to allow him to cross-examine witnesses, and also appealed against the sentence of 10 years imprisonment which had been imposed on him. He did not suggest that he had been prejudiced by lack of representation. So far as relating to conviction these grounds were later abandoned, but supplementary grounds were received after the appellant had received legal advice. These supplementary grounds included the following:

"For the majority of his trial the appellant was unrepresented. When counsel instructed withdrew from acting the appellant was not given the opportunity to seek further legal representation. The learned trial judge erred in allowing the trial to proceed while the appellant was unrepresented. The appellant was unable to present his defence properly without the benefit of such representation. Having regard to the gravity of charge 1, the sentence ultimately passed by the court and the legal issues raised during the trial the interests of justice required that the appellant should have been so represented. In all the circumstances justice was neither done nor seen to be done".

As was recognised by counsel for the appellant, there may be circumstances in which, because of the conduct of an accused, a presiding judge is well justified in allowing a trial to proceed although the accused is unrepresented, even although there may be good reason to suppose that he will be unable to present his defence effectively or fully understand legal issues which are likely to arise. If an accused is unrepresented, the court will invariably assist him in these respects to the extent that such assistance appears to be necessary during the course of the trial. In the present case no criticism of the presiding judge's conduct of the trial was made on behalf of the appellant in this or any other respect, and it is clear from the notes of evidence that the judge gave to the appellant every latitude and assistance which was appropriate in the circumstances. The difficulties which the appellant experienced during the course of the trial, which were founded on by counsel, can as easily be ascribed to his reliance on a defence which he had newly devised and which was contradictory of that on which he had gone to trial, as to any lack of ability to present the defence without representation.

The essence of the ground of appeal therefore appears to me to be not that a miscarriage of justice occurred merely because the trial judge allowed the trial to proceed while the appellant was unrepresented, but because, as it is expressed in the ground, "he was not given the opportunity to seek further representation" after counsel had withdrawn. The submissions made to this court on behalf of the appellant appeared to me to be substantially in accordance with this view of the case. Counsel submitted that it was clear that the appellant wished continued legal representation but that he was denied the opportunity of asking for it by means of the necessary adjournment. In my view this is the first issue which has to be determined by this court. If the trial judge did fail to respond to the appellant's wish for continued representation the further question would arise whether this failure was justified at the time and in the circumstances in which it occurred. However, on the view which I take of the case the latter question does not arise.

Counsel for the appellant and the Advocate depute were agreed that this ground of appeal should be determined primarily by reference to the transcript contained in the Notes of Evidence and not, for example, by reference to reasons given ex post facto by the trial judge for dealing with the case as he did and which do not appear from the transcript. This agreement recognises the principle that justice must be seen to be done, but that principle does not exclude consideration of any agreed circumstances which are relevant to the judge's consideration of the matter but of which an onlooker at the trial would not be aware. In the present case there is a history of what occurred before the trial which does have a bearing on a consideration of what occurred after it commenced. The appellant was represented by counsel when the case first called in November 1995, in which month two notices of special defence of alibi and of incrimination were lodged on his behalf. Thereafter difficulties arose which resulted in adjournments and changes in representation, but these seem not to have been caused by any conduct on the part of the appellant, and in my view they do not affect the issue. What is of importance is that the appellant had received legal representation since the case was first called, and that when the trial started on Friday 8 December he was fully represented by counsel and solicitors. There was no suggestion at that time that counsel had had insufficient time to prepare the case or to take the appellant's instructions. The defences of alibi and incrimination which had been put forward by his previous representatives were maintained. The evidence of both of the complainers, their two children, and the friend was completed on the first day of the trial, and these witnesses were cross-examined on the basis that they were mistaken in their identification of the appellant as having been at the locus.

During the course of the weekend following this evidence the appellant decided that he wished to change the defence which he had maintained since he had been first represented. It is difficult to infer that he did so for any other reason than that he recognised the strength of the evidence which had been led against him, and indeed he could give no sensible explanation of the change in his position when he was later cross-examined about it. The appellant decided that, contrary to both of the special defences which he had put forward and maintained while he was legally represented, he wished to put forward a defence of self-defence, to the effect that he had stabbed Shevlin to protect himself from an attack by Shevlin. The inevitable result of this change of front was, as the appellant must have appreciated, that he would cease to be represented by the counsel and solicitors who were acting for him. The termination of their employment was therefore entirely caused by the fact that the appellant during the course of his trial wished to abandon a defence which was false and to put forward another defence which was totally inconsistent with the instructions he had previously given to his advisers.

In these circumstances the trial judge might well have taken the view when the situation was revealed to him that although the appellant had, in accordance with general principle and with the requirements of Article 6(3) of the European Convention on Human Rights been given every opportunity of being represented and had availed himself of that opportunity, he had by his own conduct forfeited the right to further representation when his counsel and solicitors withdrew. There is no absolute requirement either in the general law or in the Convention that if an accused person as a result of his unjustified conduct terminates the employment of his counsel and solicitors (as the appellant did in the present case) he must necessarily be afforded a further opportunity of instructing other persons to represent him: whether another opportunity should be given in such a case is a matter to be determined by the presiding judge as a matter of discretion exercised on the basis of the particular circumstances of the case and having regard to considerations of fairness and the public interest. To recognise the existence of an absolute right of the appellant to demand representation in the circumstances of the present case would be equivalent to recognising that accused persons are entitled to abuse procedures devised for their protection.

It is clear that the presiding judge was initially inclined to the view that if the appellant persisted in the attitude which he had expressed, he should not be afforded any opportunity of obtaining representation beyond that which had already been afforded to him. After pointing out to the appellant that what he was now proposing was contradictory of the basis on which he had gone to trial, the trial judge asked him whether he was going to represent himself or whether he wished time to take his counsel's advice on how to proceed (p. 132A of the Notes). The appellant responded that he would like advice, and wished to speak again to his counsel. The trial judge granted that request for an adjournment, but in the context of discussion on the question of such an adjournment he observed

"If you don't take (counsel's) advice that means he will have to withdraw as he has explained and then you will have to carry on on your own".

In spite of the fact that this adjournment was granted in order that the appellant should obtain advice as to how to proceed, if the case had proceeded thereafter without anything further being said, the trial judge's conduct of the proceedings might have been subject to criticism on the ground that he had determined the question of continued representation without giving the appellant any opportunity of saying whether he wanted it, and if he did, of saying why he should be given an adjournment to allow him to obtain it. But in view of what happened after the adjournment that criticism cannot be made. When the case resumed the trial judge asked the appellant what was his position. If the appellant's position had been that he wished an adjournment to obtain new representation, this gave him the opportunity of saying so. He did not say so. He informed the trial judge as follows:

"I was advised (by counsel) I should ask you if possible that I should ask for another counsel to come in but that there would be several problems with different counsel. At the worst I should be speaking for myself. I would be given help". (p. 134C-D)

If this statement of the advice given to the appellant is correct (and there is no reason to doubt it) it is clear that the option of seeking an adjournment to obtain continued representation was not regarded by the appellant's advisers as already determined. On the contrary, the appellant had very properly been advised to ask for it and of difficulties which would arise were he able to obtain it. It was up to the appellant to say whether or not in spite of these difficulties he wished to accept the advice "to ask for another counsel". He did not accept that advice. Not only did he refrain from asking for an adjournment in order to instruct new counsel, he spontaneously observed, during the course of discussion on the general question whether he required time to prepare his case.

"I am happy to go ahead with it as soon as possible". The trial judge then asked "You are quite happy to go ahead?", to which the appellant replied "Yes".

In my opinion it is not possible to understand the passages to which I have referred as indicating anything other than that the appellant was given the opportunity of asking the trial judge for an adjournment to instruct continued representation if he wished to do so, but that he declined to do so, probably because of the advice which he had also been given as to the problems which would arise were he able to obtain "different counsel". In these circumstances the question whether the trial judge would have exceeded his discretion if he had refused a request for adjournment for the purpose of allowing the appellant to instruct different counsel does not arise, although I am inclined to the view that, in light of the whole circumstances of the case, such a refusal would have been within the judge's discretion. Although the trial judge should not have initially observed that the withdrawal of representation meant that the appellant would "have to carry on on his own", in the light of what transpired after the adjournment it is clear that this observation was of no significance in relation to the ultimate determination that the case should proceed without further adjournment. For these reasons I would reject this ground of appeal. If it were sustained it would in my opinion provide encouragement to accused persons to take the same course as did the appellant if they realised that the evidence at a trial was going against them.

The remaining grounds of appeal can be shortly dealt with. It is submitted that the trial judge erred in failing to warn the appellant that he was not obliged to give evidence. It was not suggested in argument that the appellant was not aware of that fact, and, as the trial judge points out, it would be surprising if with all his experience of the criminal courts the appellant was not aware of it. Further, it is not suggested that such a warning might have made any difference to the decision of the appellant to give evidence, and in view of the nature of his new defence it would have been difficult for him not to have done so. There is no substance in this ground of appeal.

The appellant also submits that the trial judge should have given directions on the question of provocation. Although that question does frequently arise where self-defence has been pled, it did not and could not have arisen as an issue on the basis of the evidence led in the present case. If the plea had been put forward, which it was not, the trial judge would have been bound to direct the jury to ignore it. There was no evidence that the appellant stabbed the complainer after losing self-control as a result of the alleged attack by the complainer. There was no evidence as to the nature of the alleged attack such as would permit any consideration of the question whether the stabbing was a proportionate and understandable response to the complainer's actions. There was no basis for the jury holding, as is suggested as a possibility in this ground of appeal, that the special defence had not been made out because there had been cruel excess. For these reasons I would also reject this submission.

For these reasons I would refuse the appeal against conviction.