Scottish High Court of Justiciary Decisons

Dickie, Her Majesty's Advocate v [2002] ScotHC 3 (14 February 2002)

HIGH COURT OF JUSTICIARY
	OPINION OF LORD HARDIE in the cause HER MAJESTY'S ADVOCATE   against GRAEME GEORGE DICKIE       ________________

 

 

Crown: J M Johnston, AD, Sayer

1. Martin, Q.C., (2) Brailsford, Q.C.; James A McCann & Co, Clydebank

14 February 2002

1. The procedural history of this case is that it was indicted for trial at the sitting of Forfar High Court commencing on 14 January 2002. On 24 January Mr.Gray, Advocate, appeared for the accused when the case was called and, on the motion of the Crown, was transferred to the sitting of the High Court at Inverness which was then in progress. On 1 February Mr.Gray again appeared for the accused when the case called in Inverness and was transferred back to Forfar where the sitting of 14 January was still in progress. On 1 February a trial had commenced in Forfar in another case but it was anticipated that it would conclude early the following week. On 5 February it was apparent that the jury in the then current trial would retire early the following morning, enabling another trial to commence at 2pm on 6 February. Prospective jurors were obliged to telephone the sheriff clerk's office at noon that day for instructions contained in a recorded message concerning their attendance at court.
2. The Crown made arrangements to secure the attendance at short notice of witnesses in the three remaining cases, including this case, because the Crown recognised that there are occasional problems with the attendance of witnesses or other reasons preventing the commencement of a trial. In addition the first of the three remaining cases had a long history of difficulties. To minimise inconvenience to prospective jurors and to maximise the use of available court time as well as increasing the prospect of commencing a trial, the Crown decided to bring in all three cases to enable one of them to commence at 2pm on 6 February.
3. On 6 February the trial which had commenced on 1 February concluded as expected before noon, with the jury retiring at 10.30am.When the jury retired, the case with a history of difficulties was called and it was clear that case could not proceed to trial on that date. The second case could not proceed because the Crown had served a notice under section 67 of the Criminal Procedure (Scotland) Act 1995 and the induciae had not expired. The Crown was prepared to proceed to trial in the present case; the accused was in custody, witnesses and jurors were on call and no difficulties were envisaged by the Crown which would delay the commencement of the trial at 2pm. However, the clerk of court advised me that the case could not proceed because no counsel had appeared for the accused, although an instructing solicitor was present within the court building. I was further advised that it was unlikely that representation could be secured for the accused before 2pm. In order to avoid unnecessary attendance of jurors I instructed the clerk to arrange to countermand jurors for that afternoon but to require their attendance the following morning when it was anticipated that the trial in the present case would start at 10am. The Crown made similar arrangements for witnesses.
4. When the case called at 10 am on 7 February about 50 prospective jurors, an unspecified number of witnesses and the accused were in attendance. Mr.Hughes, Advocate, appeared for the accused along with Virgil M. Crawford, Solicitor, Stirling and sought an adjournment of the trial to the following day as he had only received a set of papers when he arrived at court that morning and required time to prepare.

Mr. Hughes assured me that he would not be ready for trial before the following morning and I considered that I had no alternative to acceding to his motion after further procedure in the case that morning. The prospective jurors were sent away at 10.10am. I adjourned the case briefly to enable Mr. Hughes to obtain and provide the court with a full explanation of the reasons for the sequence of events. The failure to arrange timeous representation for the accused had resulted in a loss of one and a half days of court time, considerable inconvenience to more than 50 members of the public and, presumably, a waste of a substantial amount of public funds.

[5] When the court reconvened, Mr. Hughes gave the following narrative:

"The case was indicted for trial for the sitting of the High Court at Forfar commencing on 14 January. Miss Livingstone, Advocate, was instructed prior to 7 January and consulted on that date and on two subsequent dates. Miss Livingstone was involved in two other cases, which were transferred to Glasgow High Court, and instructions were passed to Mr. Gray, Advocate. Mr. Gray appeared when the case called on 24 January at Forfar. Mr.Gray also consulted with the accused on that date. On 1 February the case called in Inverness and was transferred back to Forfar. Mr. Gray appeared for the accused on that date. Early in the afternoon of 5 February the procurator fiscal contacted the instructing solicitor to advise him that he should ensure that counsel and solicitor attend for trial the following day. The solicitor contacted Mr. Gray's clerk and was advised that Mr. Gray would not be available as he had instructions for another trial, which had not yet started. The solicitor contacted the procurator fiscal, who confirmed that all three cases were being brought in on 6 February. The solicitor arranged for another solicitor to attend court 'to deal with procedural matters'.

On 6 February at 11.30am that other solicitor contacted the instructing solicitor to advise him of the difficulty which had resulted in the postponement of the diet of trial. The papers were still in the possession of Mr. Gray. Mr. Gray was contacted sometime in the afternoon and the solicitor was advised that the papers were at Mr. Gray's home and could not be obtained before 7pm. The solicitor made inquiries about the availability of other counsel and solicitors with extended rights of audience. A duplicate set of papers was prepared. Mr. Hughes was advised by his clerk to attend court on 7 February. No papers were available to him until that date and he had not had an opportunity to read the papers or consult with his client. Accordingly the trial could not proceed on that date, despite the attendance of prospective jurors and Crown witnesses."

5. I was aware of the professional obligations of counsel towards the court. In particular, an advocate has an obligation to arrange his affairs so as to avoid a foreseeable clash of commitments. Where a clash of commitments is foreseeable, an advocate must take steps to ensure that his clerk and the instructing solicitor are aware of the situation; where a clash is inevitable counsel must return without delay all instructions with which he cannot comply. In that regard I would refer to the Guide to the Professional Conduct of Advocates paragraphs 9.4.1, 4.6.6 and 4.6.5 respectively. From the narrative given by Mr. Hughes, it appeared that counsel may not only have been in breach of these obligations but more significantly may have prevented the instructing solicitor from instructing alternative counsel. If that were the situation, it appeared to me that the actions of counsel might amount to contempt of court. Although the Dean of Faculty has jurisdiction as regards matters of discipline of advocates who are in breach of their professional obligations specified in the Guide, in my opinion, the court has jurisdiction to determine issues of contempt of court and to impose appropriate penalties. I am reinforced in that opinion because Mr. Martin Q.C., the Vice Dean of Faculty who appeared on behalf of Mr. Gray at a subsequent hearing, did not suggest that the matter should be referred to the Dean of Faculty or that the court had no jurisdiction. Had any such submission been made, I would have rejected it. There is no doubt that solicitors may be guilty of contempt of court for late attendance, assuming the necessary wilful defiance of or intentional disrespect to the court is present, even although they are also subject to the jurisdiction of the Law Society of Scotland in respect of professional misconduct. Reference is made to Ferguson v Normand 1994 SCCR 812. I can see no justification for any distinction between counsel and solicitors in this regard.
6. I also considered the position of the solicitor. It appeared to me that he might also be in contempt of court. If he were it was clear, as I have observed above, that the court had jurisdiction to make the necessary finding and impose an appropriate penalty. I did not consider it appropriate to deal immediately with the issue of contempt by the solicitor, as he should be given an opportunity to take advice. In addition I considered it desirable that solicitor and counsel should appear together in case there was a difference of opinion between them about the history of events. I ascertained from the Crown that Mr. Gray was engaged in a trial at Glasgow High Court which was due to conclude the following day. Accordingly I fixed a hearing for Monday 11 February at 3.30pm and ordained Mr. Gray and Mr. Crawford to appear with representation, if so advised, to make submissions as to whether their respective conduct amounted to a contempt of court.
7. Following informal representations by counsel on behalf of each of them and of consent of all parties, I accelerated the hearing to Friday 8 February at 3.30pm. On that date Mr. Martin Q.C. appeared along with and on behalf of Mr. Gray and Mr. Brailsford Q.C. appeared along with and on behalf of Mr. Crawford.

The position of Mr.Gray.

8. Mr. Martin explained that Mr. Gray was in Forfar High Court on 24 January in connection with another case when he was requested to appear on behalf of the accused in this case. He understood that there would be a motion to transfer the case to Inverness. The case was transferred to Inverness and Mr. Gray was instructed to appear in the substantive proceedings. He consulted with the accused on 29 January. When he read the papers, Mr. Gray concluded that the case would not proceed to trial in Inverness because certain Crown witnesses were unlikely to travel. On 1 February Mr. Gray appeared when the case called in Inverness and was transferred back to Forfar. On that date he also learned that the Advocate Depute in Inverness was also being transferred on 6 February to conclude the sitting at Forfar. At that stage there was no indication of the date of commencement of this trial. Mr. Gray had prior instructions to appear in a trial at Glasgow High Court which was due to commence on 4 February and last no more than two days. He retained instructions in the present case because he anticipated the Glasgow trial would be completed before 6 February and he knew for the reason already given that the present case could not commence before then. For various reasons unconnected with Mr. Gray the trial in Glasgow did not commence until 6 February. As expected it was concluded within two days. On 5 February Mr. Gray advised his clerk that he would be unavailable for the present trial because of the delay in the commencement of the Glasgow trial and prior instructions for the week commencing 11 February. Accordingly she was requested to contact Mr. Crawford to tell him of the difficulty and to arrange to pass on the papers. Mr. Gray's clerk spoke with Mr. Crawford by telephone at about 3pm that day and advised him of Mr. Gray's non-availability. She also mentioned the location of the trial for the week commencing 11 February and has a note of that telephone conversation. Despite that communication his clerk contacted Mr. Gray on 6 February to ascertain whether there was any possibility that Mr. Gray could act for the accused in the present case. He confirmed that he was not available if the case were to proceed at the present sitting but, if the accused particularly wanted his services, he might be available to accept instructions if the case were adjourned to a later sitting of the High Court. Mr. Gray accepted that he had retained the papers, although he had made it clear that he was not available for the trial in the present sitting at Forfar and he had made arrangements to have the papers delivered to his clerk. He regretted that he did not deliver the papers personally to Parliament House but he had been preparing for another case. Mr. Brailsford did not dispute this narrative when he addressed me later on behalf of Mr. Crawford.
9. Mr. Martin submitted that Mr. Gray was not in contempt of court because he had never accepted instructions to attend Forfar High Court for this trial on 6 or 7 February. He had advised the solicitor on 5 February that he was not available for this case in this sitting and the solicitor had again been advised of this fact on 6 February. He regretted that he had not returned the papers to the solicitor but that had not prevented the solicitor from instructing alternative counsel. Although a contrary impression may have been created by the narrative given by Mr. Hughes, the instructing solicitor had a duplicate set of papers and copied them for the purpose of instructing Mr. Hughes. Mr. Brailsford frankly accepted on behalf of Mr. Crawford that Mr.Gray's delay in returning the papers did not prevent the instruction of alternative counsel. In these circumstances Mr. Martin submitted that there was no failure by Mr.Gray to attend court, far less a wilful failure to attend in accordance with instructions. Nor was there any other wilful defiance of or intentional disrespect to the court by Mr. Gray.
10. On the basis of the narrative given by Mr. Martin and accepted by Mr. Brailsford, I concluded that there was considerable merit in Mr. Martin's submission that Mr. Gray was not in contempt of court. He had arranged for the instructing solicitor to be advised on 5 February that he was no longer available to conduct the trial. He did not accept any subsequent instructions to appear in this case. Accordingly I advised Mr. Martin and Mr. Gray that I was satisfied that there had been no contempt of court by Mr. Gray. I would observe that Mr. Gray could have avoided the necessity of attending court to explain his actions, if he had returned the papers on 5 February.
11. Although I have determined the issue of contempt, I wish to comment on certain issues raised by Mr. Martin in the course of his submissions. The first issue relates to the statement that, after reading the papers in January, Mr. Gray was satisfied that the case could not proceed to trial in Inverness because certain Crown witnesses would not travel there. I consider that it is extremely imprudent for counsel to plan commitments on such a basis. The Crown may secure the attendance of witnesses by various means, including the obtaining and enforcement of warrants, if necessary.
12. My second observation relates to the reference by Mr. Gray to the possibility of an adjournment of the case, if the accused particularly wanted Mr. Gray to represent him. Adjournments of cases to later sittings cause problems for witnesses, whose memory may be affected by the passage of time. They may also result in an accused person being detained in custody for a longer period than would otherwise be necessary. Indeed in the present case the accused was in custody but was acquitted after trial and released. If an adjournment had been sought and granted to enable the accused to have the services of Mr. Gray, he would have been detained for a longer period. Such a result can hardly be said to be in the interests of the accused. Moreover adjournments cause disruption to current and future sittings of the High Court, resulting in unnecessary delays to the determination of cases, additional inconvenience to the public, who are involved as jurors or witnesses, and a waste of public expenditure and resources. For these reasons I am of the opinion that, except in the most unusual of cases, adjournments should not be granted simply because an accused wants the services of a particular counsel. In any event it is unlikely that the counsel concerned will be able to guarantee his or her attendance at the adjourned diet. If advocates comply with the Guide to the Professional Conduct of Advocates and return instructions at the earliest opportunity, there is more prospect of disposing of cases in the sittings to which they are allocated, thereby reducing delays in trials.
13. In the course of his submissions Mr. Martin stated that where counsel was instructed for a case within a sitting of the High Court there was no obligation on him or her to be in attendance on a daily basis. I have no difficulty in agreeing with that statement as such. However, I disagree if there is any implication that counsel is entitled to make no inquiries of the solicitor or the Crown concerning the progress of the sitting pending further instructions to appear on a particular day. Counsel and solicitors have mutual obligations to ensure representation for an accused. Each of them must maintain contact with the other and with the Crown to seek to avoid difficulties and to ensure that there is no undue delay in trials.
14. The final matter relates to what was described by Mr. Martin as the "48 hour rule". He explained that this is a convention whereby the Crown gives counsel 48 hours notice before calling a case for trial in sittings involving a number of cases. If that is truly the manner in which the convention is being operated by the Crown and defence counsel and solicitors, it is hardly surprising that court resources are frequently under-utilised. Such an arrangement would risk the court being unable to sit for several days throughout the course of a sitting and would result in sittings being prolonged with consequent implications for the public at large as well as public expenditure. My understanding of the meaning of the "48 hour rule", when I was Dean of Faculty, was that cases would not be called for trial before the date allocated in the List of Cases for the sitting, unless 48 hours notice was given to counsel of the new date. Frequently counsel waived his entitlement to notice and agreed to proceed to trial because he was available and prepared for trial. I wish to observe that if Mr. Martin is correct in the formulation and operation of the convention, I consider that it should be reviewed as a matter of urgency.

The position of Mr. Crawford.

15. Mr. Brailsford did not dispute the narrative given by Mr. Martin. In particular he accepted that the retention of papers by Mr. Gray did not preclude the preparation of a duplicate set of papers or the instruction of alternative counsel. Mr. Brailsford advised me that on 5 February there were two telephone calls between Mr Crawford and the procurator fiscal responsible for the management of the sitting. The first call was received at about 3pm when Mr. Crawford was told of the intention "to bring this case in as a possible back up case". Mr. Crawford immediately contacted Mr. Gray's clerk and ascertained that Mr. Gray was not available for the trial commencing on 6 February. He advised the procurator fiscal accordingly. Mr. Crawford was then advised that all three cases would call on 6 February "to see where we are going with them". Mr. Crawford assumed that the case would call "for the purpose of discussing procedure" but did not seek nor was he given any explanation of the phrase used by the procurator fiscal. However I would observe that the reference to the case being a possible "back up case" ought to have alerted him to the possibility that it might proceed to trial. On any view of the situation, Mr. Crawford was aware shortly after 3pm on 5 February that representation would be required for the accused the following day. Mr. Angus, a consultant in Mr. Crawford's firm, was requested to attend court on 6 February. Mr. Crawford made no effort to obtain alternative representation because he was aware that counsel would be present within the building in connection with another case. His intention was that Mr. Angus would ask that counsel to appear on behalf of the accused. On 6 February Mr. Angus told Mr. Crawford of the intention to proceed to trial the following day. Efforts were made to obtain alternative representation for the accused. Thirteen solicitors with extended rights of audience were contacted but were not available. Mr. Crawford was unable to find counsel whom he considered to have suitable experience. He contacted the Advocate Depute and advised her of his difficulties. At 4pm he was advised of the availability of Mr. Hughes. He requested an advocate's clerk to secure the attendance of Mr. Hughes at court the following morning. Prior to securing the services of Mr. Hughes, Mr. Crawford tried to arrange a time for a consultation with the accused at Perth prison but was advised that no times were available. Mr. Hughes was given no papers until his arrival at court on 7 February. No efforts were made by Mr. Crawford to send papers by courier or other means to Mr. Hughes to enable him to commence preparations for trial during the evening of 6 February. There were only 19 Crown witnesses and 12 Crown productions and, in my opinion, if papers had been delivered on 6 February counsel could have been prepared for trial by 2pm at the latest on 7 February, allowing for a consultation in the morning at court.
16. On the basis of the narrative of events on or after 5 February, it appeared to me that Mr. Crawford made serious errors. I wished to consider whether his conduct could be categorised as contempt of court. If he were in contempt of court, the consequences for Mr. Crawford might be extremely serious having regard to the disruption caused by him. Accordingly I adjourned the hearing to 14 February at 3.30pm. Before dealing with Mr. Crawford's conduct I wish to express concern at the allegation that prison authorities would not allow legal representatives access to an accused on the eve of his trial. It may be that Mr. Crawford failed to impress upon the authorities the urgency of the matter. I would not be surprised if that were the case in view of the approach adopted generally by Mr. Crawford in this case. However I would hope that, in future, arrangements will be made by the prison authorities for such consultations at short notice in cases of urgency.
17. I have concluded that serious errors were indeed made by Mr. Crawford. Although strenuous efforts were made to secure alternative representation on 6 February, no effort was made on 5 February to seek alternative counsel or solicitors with extended rights of audience as soon as he had been advised that Mr. Gray was not available. Had Mr. Crawford treated the case with the required urgency he would have sought to obtain alternative representation. If necessary he could have enlisted the assistance of the Dean of Faculty to secure the services of counsel. Thereafter he should have delivered the duplicate set of papers that evening, if he had succeeded in obtaining alternative counsel. If such a course of action had been followed, counsel could have prepared for trial during the evening of 5 February, consulted with the accused at court and the trial could have commenced at 2pm on 6 February as planned. This would have avoided the serious disruption, which was occasioned to members of the public and the court. Attempts to excuse his failures in this regard by explaining that he assumed that the intention was "to discuss procedure" and he did not appreciate that the case may proceed to trial on 6 February do not bear scrutiny. I appreciate that on occasions cases are brought in on "an accused and counsel basis" to ascertain whether there is any prospect of a guilty plea. Such an arrangement assists all parties in the management of cases but I am unaware of any "procedural discussions" which are truly appropriate at a trial diet. If Mr. Crawford considered that discussions about a possible guilty plea were envisaged or if he wished to seek an adjournment of the case, he was under an obligation to instruct counsel formally. I disagree with the submission of Mr. Brailsford that it was appropriate to ask Mr. Angus to go to court without counsel having been instructed and on the assumption that counsel engaged in other business would appear on behalf of the accused. I accept, of course, that there may be circumstances where it is appropriate to instruct counsel at court but these are limited to purely formal matters, such as attending when the Crown wishes to transfer a case to another sitting. However even in that situation instructing solicitors are taking a risk that counsel will not be available because of other commitments. The attitude displayed by Mr. Crawford on 6 February was not only reckless but would have fettered the discretion of the court if counsel had appeared and sought an adjournment of the case. His errors were compounded later on 6 February when, having secured the services of Mr. Hughes, Mr. Crawford failed to make any effort to deliver papers to counsel that evening. Had he done so the trial could have commenced at some stage on 7 February, thereby reducing the inconvenience caused to others.
18. Mr. Brailsford submitted that the actions of Mr. Crawford were not wilful and merely amounted to an error of judgement. Furthermore I should ignore the serious consequences of his actions when determining the question of contempt of court. I have no difficulty in acceding to the second submission. The consequences of his actions should be reflected in any penalty in the event of a finding of contempt and are not relevant to the determination of the issue of contempt of court.
19. I disagree with the categorisation of Mr. Crawford's conduct as merely an error of judgement. Undoubtedly Mr. Crawford made a number of significant and serious errors of judgement but I am of the opinion that, in assessing his conduct, it is appropriate to consider his conduct in its entirety. If that is done I have reached the conclusion that it may properly be described as grossly reckless resulting in a disregard for the court and the administration of justice. I have also concluded that his attitude on 6 February in relation to the attendance of Mr. Angus at court without counsel or a solicitor with extended rights of audience and in relation to his failure to deliver papers to counsel can only be described as cavalier, assuming that he is aware of his professional obligations as a solicitor. In McMillan v Carmichael 1993 SCCR 943, to which reference was not made in submissions, the court rejected the submission of the Lord Advocate that gross recklessness could amount to contempt of court. An intention to challenge or affront the authority of the court or to defy its orders is a necessary prerequisite for a finding of contempt of court. On the basis of that authority, which I am bound to follow, it is clear that even the gross recklessness in this case cannot in law amount to contempt of court. However the court in McMillan v Carmichael also concluded that a finding of contempt of court might be inferred. The test in such circumstances is whether there was a wilful challenge or a wilful failure in defiance of the authority of the court. I have already concluded that the actions of Mr. Crawford were cavalier, assuming he was aware of his professional obligations to the court. I consider that in assessing whether there has been any defiance of the authority of the court by a solicitor one must assume that he is aware of his professional responsibilities. Thus the remaining issue for me is whether his actions amounted to a wilful failure or challenge. I have experienced considerable difficulty with this aspect of the case. I consider that the necessary inference could be drawn to enable me to make a finding of contempt of court but the circumstances could equally disclose sheer incompetence. As I have been unable to exclude the latter inference, I shall give Mr. Crawford the benefit of the doubt and make no finding of contempt of court.