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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Osborne
Lord MacLean
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[2006] HCJAC 13
Appeal No: XC283/02
OPINION OF THE COURT
delivered by THE LORD
JUSTICE CLERK
in
APPEAL
by
CLIFFROY JAMES
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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For the appellant: Bell QC,
Hawkes; George Mathers & Co., Aberdeen
For the Crown: Miss Grahame, AD; Crown Agent
7 February 2006
The conviction
[1] On
9 August 2002 the appellant was convicted at the High Court at Stonehaven of inter alia the following charge, as
amended:
"On 29 September 1999, at 625 Clifton Road, Aberdeen
and elsewhere you, while acting along with others were concerned in the
supplying of a controlled drug, namely Cocaine, a Class A drug specified in
Part I of Schedule 2 to the aftermentioned Act, to another or others, in
contravention of Section 4(1) of said Act:
CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."
The background
[2] On
29 September 1999 officers
of Grampian Police Drug Squad executed a search warrant at a flat at the locus
libelled. They found the appellant,
Devon Lloyd Harvey and Graham Duncan Ross in a bedroom. According to two police officers, the
appellant was sitting on the edge of the bed.
When they entered the room, he stood up and a knotted plastic bag fell
from him to the floor. It contained 11
clingfilm packages containing 6.97 grammes of crack cocaine. On the dressing table in the room there were
two packages of crack cocaine and a knife and a set of digital scales, both
with traces of powder. On the floor
there was a roll of clingfilm and on the television set a roll of plastic
bags. No evidence was led at the trial
about the remainder of the search; but the advocate depute has informed us that
in the living room the police found a tick list on which were Ross's
fingerprints and that Harvey was found to be in possession of £125, a
recognised price for a 1/16th oz cocaine deal.
[13] The appellant, Harvey and Ross were charged on indictment under
section 4(3)(b) of the Misuse of Drugs Act 1971. Harvey and Ross incriminated each other, and
both of them incriminated the appellant.
The appellant twice failed to attend when the case called for
trial. A warrant was granted for his
arrest. In the event, at a diet in
October 2001, for reasons that the advocate depute was not in a position to
explain, the Crown accepted pleas of not guilty to the section 4(3)(b) charge
from Harvey and from Ross. During these
proceedings Ross was represented by Caird Vaughan, solicitors, Dundee. According to their file on the case, Mr Ian
Vaughan, the senior partner, was personally involved in the preparation of
Ross's defence.
[4] In
April 2002 the appellant was arrested under the warrant and taken to
Craiginches Prison, Aberdeen. He was thereafter indicted on his own on six
charges, the first of which was the section 4(3)(b) charge relating to the
incident on 29
September 1999. The appellant
became dissatisfied with the first solicitor who represented him. He then consulted Mr Shepherd of Aberdein
Considine, Aberdeen. Mr Shepherd declined to act for him because
he had acted for Harvey in the
same matter. Mr Ian Vaughan thereafter
acted for the appellant.
[5] On
25 June 2002 Mr Vaughan
consulted with the appellant at Craiginches regarding the transfer of the
agency. According to the appellant, Mr
Vaughan explained to him that he had acted for Ross, but that he would seek the
authority of the Law Society to act for the appellant. The appellant understood that Mr Vaughan was
given that authority; but Caird Vaughan's files do not show that any
application was made for it. The point
is not crucial and we need not attempt to resolve it.
[6] On
2 July 2002 Mr Vaughan
consulted with the appellant. The prison
visit sheet merely records "advising re indictment." There is no reference to the question of
conflict of interest.
[7] On
8 July 2002 Mr Vaughan
wrote to the appellant saying that he would take instructions from counsel as
to whether or not it was appropriate that he should remain in the case. On the same day, Mr Vaughan instructed Mr
Graeme Robertson, advocate. His letter
of instruction raised the question of conflict of interest in the following
way.
"You will see that he appears on his own on the
indictment, however, we did appear at one stage for a co-accused who faced the
same charges. These charges however were
not proceeded with and Cliffroy does want us to proceed on our (sic) behalf. I do not see any particular difficulty with
this, however, it may be better that I have a chat with you about it. Also a consultation should be arranged as
quickly as possible."
This letter does not name Ross as
the co-accused to whom Mr Vaughan is referring, or disclose that Ross
incriminated the appellant; nor does it say what information Ross gave to Caird
Vaughan about the appellant in relation to the section 4(3)(b) charge.
[8] Mr
Robertson did not write an opinion or hold a consultation on the question. As we now know, he was satisfied straightaway
that Mr Vaughan could continue to act for the appellant and we infer that he
expressed that view to Mr Vaughan at the time.
[9] On
11 July 2002 Miss Gail
Russell, a solicitor employed by Caird Vaughan, visited the appellant. The purpose of the visit, according to the
prison visit sheet, was "To advise re possible conflict & advise of G
Robertsons point of view." Under the
heading "what done at visit" the sheet records "Going over transcript of client
& transcript of co-accused. Client
discussing incriminating Devlin (sic)
& also advising Graeme Robertson is advocate." The meaning of the reference to the
transcript of the co-accused is not clear.
[10] On 20 July
2002, Miss Russell visited the appellant with counsel. Under the heading "what done at visit" the
prison visit sheet records "Initial Consultation. Taking full instructions."
[11] On 24 July
2002 Miss Russell visited the appellant with counsel. Under the heading "what done at visit" the
prison visit sheet records "Going over statement & Adv advising him re
Incriminating Devron (sic) Jessup
& McGuire. Client agreeing to
Incriminate them." In the "Notes"
section the sheet records "GR to Incriminate the above." The names Jessup and McGuire relate to other
charges. It seems clear that neither Mr
Vaughan nor Miss Russell prepared a precognition of the appellant. There is no such precognition in the file and
none is charged for in the legal aid account.
[12] In a letter to Mr Robertson dated 25 July 2002 Miss Russell said the following
"I am about to do the notice of Incrimination. Please could you confirm whether you also (sic) Devon Lloyd Harvey to be
incriminated?"
Those mentioned in the draft Notice
were Harvey and two persons involved in an unrelated charge. Notwithstanding the prison visit sheet for 24
July and this letter, no special defence was lodged before the trial.
[13] Neither Mr Vaughan nor Miss Russell sought Mr Robertson's
advice as to whether Ross should be incriminated and there is no evidence that
Mr Robertson raised that possibility.
There is nothing in the file to suggest that the possibility was ever
discussed with the appellant.
[14] The appellant's trial began on 8 August 2002.
At the outset, Mr Robertson was allowed to lodge a special defence of
incrimination against Harvey. He cross-examined the police officers who
carried out the search on the basis that the package found on the bedroom floor
had not fallen from the appellant. The appellant
was the only defence witness. He said
that he had come from Wolverhampton to Aberdeen to go
clubbing. Harvey had let
him sleep on a settee at the flat. He
did not know that there were drugs in the flat.
He knew nothing about the drugs that were recovered by the police. No package had fallen from his clothing. Harvey and Ross were in the bedroom when he
entered it. It was then that he first
saw the drugs on the dressing table.
That was only moments before the police arrived.
[15] Mr Robertson addressed the jury on the basis that it was not
proved beyond reasonable doubt that the appellant had anything to do with the
drugs or other items found in the bedroom, and in particular that there was no
scientific or fingerprint evidence to link the appellant to them. He did not mention either Harvey or
Ross. He did not mention the special
defence; but he did not withdraw it.
The grounds of appeal
[16] The appellant lodged an Anderson appeal in
which he accused Mr Robertson and Mr Vaughan of various deficiencies in their
conduct of the defence. He later added
six further grounds, all of them based on the contention that Mr Vaughan, in
breach of his professional duty, acted for the appellant despite a conflict of
interest.
The response of counsel and solicitor
[17] In his comments to the court on the conflict of interest point,
Mr Vaughan failed to deal with the allegation that he said that he would seek
authority from the Law Society to act for the appellant. In a letter dated 24 September 2004 he said that the question
of conflict of interest was taken up with counsel in writing; but he did not
deal with the point that his letter of instruction to counsel did not disclose
the full circumstances. In a letter
dated 22 April 2005, Mr
Robertson said inter alia
"When I was instructed to act for Mr James by Messrs
Caird Vaughan, Solicitors I had no prior knowledge of or involvement in this or
any other case in which Mr James or Graham Ross had been involved. I was informed by the partners of Caird Vaughan
that they had previously acted for Graham Ross.
They felt that this did not compromise them representing Mr James. I was informed that the case against Graham
Ross had been dealt with. I do not
recall being told that Mr Ross had incriminated Mr James in earlier
proceedings. I was further informed that
Mr James had no objection to Caird Vaughan representing him. In those circumstances I did not feel that
there was any real issue in Caird Vaughan representing Mr James. I did not feel inhibited or compromised in
my representing Mr James."
[18] In their comments on the Anderson
ground, Mr Robertson and Mr Vaughan both made the point that the appellant did
not instruct them at any stage to blame Ross.
Submissions for the appellant
[19] Counsel for the appellant submitted that Mr Vaughan had a
conflict of interest. Ross had
incriminated the appellant. Caird
Vaughan owed a continuing professional duty to respect Ross' confidence. As a partner in Caird Vaughan, Mr Vaughan was
not free to disclose to the appellant confidential instructions that had been
given by Ross. He could not properly
advise the appellant as to whether Ross should be incriminated. To do so would be a breach of his
professional duty to Ross. He was
therefore in breach of the Law Society's Code of Conduct for Criminal Work for
Solicitors (sv "conflict of
interest").
[20] On the Anderson ground, counsel submitted that the
appellant was only a chance overnight visitor to the flat. Since he claimed that he did not know that there
was cocaine in the flat, an issue arose as to the guilt of Harvey and
Ross. Mr Vaughan advised the appellant
to incriminate Harvey, but did
not advise him to incriminate Ross. In
consequence, the question of Ross' possession of the cocaine could not be
pursued at the trial. Counsel too failed to follow up this line of
defence. It was crucial to the case. The appellant was therefore deprived of a
fair trial (Winter v HM Adv 2002 SCCR 720; McBrearty
v HM Adv 2004 SCCR 337).
[21] There was also a breach of article 6.3 of the Convention which
guaranteed the minimum right of legal assistance of the appellant's own
choosing and the right to examine witnesses against him. Since Mr Vaughan, despite his and counsel's
view, could not give full and impartial advice to the appellant, the
appellant's rights under article 6 were denied.
Submissions for the Crown
[22] The advocate depute did not take issue with the main
submissions for the appellant on the conflict of interest point; but she
submitted that the appellant was properly defended and that in the
circumstances there was no miscarriage of justice. The appellant gave evidence. His position was clearly placed before the jury. He blamed Harvey and he did
not blame Ross. In cross-examination he
accepted that Harvey could have
been concerned in supplying cocaine.
There was evidence against Harvey, including
the money in his possession and the fact that he was living at the locus. The trial judge specifically directed the
jury on the special defence. There was a
strong case against the appellant. The
package fell to the floor when he stood up.
To have blamed Ross would not have altered that issue. On the appellant's own evidence there was
nothing against Ross other than his mere presence in the bedroom. Although the tick list was recovered in the
living room, it was open to the jury, even without a special defence of
incrimination against Ross, to take note of Ross' presence in the bedroom if they
thought that it was helpful to the defence case.
Conclusions
Conflict of interest
[23] We cannot understand how Mr Vaughan could have been in any
doubt that there was a conflict of interest in this case. His firm had acted for Ross in his defence to
the same charge and, on Ross' instructions, had incriminated the
appellant. He himself had taken part in
the preparation of Ross' defence. The
circumstances were too obvious to require counsel's advice on the point. But when he referred the matter to counsel,
Mr Vaughan should have disclosed that the co-accused to whom he was referring
was Ross and should have specified the work that he and his firm had done on
Ross' behalf. His letter of 8 July 2002 left all of that
unsaid. It could have been read to mean
that the charge against Ross had been dropped at an early stage.
[24] Despite being unaware of this additional information, counsel
nevertheless knew that Mr Vaughan's firm had represented a co-accused on the
same charge and he should at once have recognised the possibility of a conflict
of interest. We cannot understand how Mr
Robertson, without further knowledge of the history, could advise Mr Vaughan
that it would be proper for him to act.
[25] In our view, Mr Robertsons's letter dated 22 April 2004 (supra) gives an inadequate justification
of his decision. Since he knew that Ross
had been indicted on the same charge, there was a clear prima facie conflict of interest on the part of Caird Vaughan. That, we think, was reason enough to advise
Mr Vaughan that he could not act. But if
that was not obvious to him, it should certainly have occurred to him that,
before advising on the point, he should find out what steps Caird Vaughan, and
Mr Vaughan in particular, had taken in Ross' case, and what he had told them
about the facts of the case. Mr Robertson
has failed to give us satisfactory reasons for the view that he took.
[26] In our opinion, when the appellant's defence was conducted in
such circumstances, he did not receive a fair trial.
The Anderson ground
[27] Apart from the propriety of Mr Vaughan's acting, there is a
separate question as to the competence with which the defence was
conducted. If there was an obvious and
relevant line of defence, it was Mr Robertson's and Mr Vaughan's duty to advise
the appellant to take it. The
appellant's case was that he was a chance overnight guest at the flat who knew
nothing of the presence of cocaine there.
Harvey and Ross were already in the bedroom when he entered it. The cocaine and the drugs paraphernalia were
on open view in the room. If the appellant
had nothing to do with the cocaine, the likely inference was that Harvey and
Ross, or one of them, was connected with it.
Counsel and agent would therefore have been justified in lodging a
special defence to that effect. Even if involvement
with the cocaine could not be proved against either Harvey or Ross, that
defence could succeed if it raised a reasonable doubt in the minds of the
jury. Prima facie, the case against Ross was as strong as the case
against Harvey. In our opinion, it was stronger against Ross
because of his fingerprints on the tick list.
[28] In these circumstances, we cannot understand why neither Mr
Vaughan nor Mr Robertson even raised with the appellant the question of
incriminating Ross. In their comments on
this ground, Mr Robertson and Mr
Vaughan have tendered the feeble excuse that the appellant did not instruct
them to incriminate Ross. That is
neither here nor there. It was their
duty to advise the appellant that, on his own account of the facts, this
obvious line of defence was open to him.
[29] Since Caird Vaughan had acted for Ross and since Ross had
incriminated the appellant, the failure of Mr Robertson and Mr Vaughan to
pursue this matter is, in our view, a cause for concern (cf R v Morris, (2005] EWCA Crim 1246). It would certainly convey to the informed
observer the clear impression that the appellant had not received a fair
trial.
[30] We conclude therefore that the appellant was not properly
represented by Mr Robertson or by Mr Vaughan. Their deficiencies related to matters that
would been obvious to any counsel or solicitor of average competence (A J E v HM Adv, 2002 JC 215; Winter v HM Adv, supra; McBrearty v HM Adv,
supra). Since the failure in representation went to a
significant point in the appellant's defence, the appellant did not receive a
fair trial. There has been a miscarriage
of justice.
[31] Counsel for the appellant has touched on other questions
relating to the appellant's representation; for example, why Mr Vaughan and Mr
Robertson embarked on this serious trial without a formal precognition from
their client; why, when a decision to incriminate Harvey was taken on 24 July,
the special defence was not lodged until the first morning of the trial; and
whether the explanation given to the trial judge for the absence of the
addresses on the defence list of witnesses was entirely candid. On the view that we have taken, these are
side issues that need not be explored in the context of this appeal.
Decision
[32] We shall allow the appeal.
