For the Appellant: Lamb QC; McClure Collins

For the Crown: KD Stewart AD; Crown Agent

31 May 2006

Introduction

[1] On 16 May 2003 the appellant was convicted at Glasgow High Court of a charge of drug smuggling. He was sentenced to 18 years imprisonment. A co-accused, James Mair, was convicted on the same charge and was given the same sentence. Two co-accused, David Frew and Sean McAdam, were convicted of the charge under certain deletions. All four have appealed.

[2] The appellant has appealed against conviction on the grounds of insufficiency of evidence, misdirection of the jury and defective representation (the Anderson ground). He was given leave to appeal on all of these grounds. We now have to decide whether the appellant should be granted leave to amend the Anderson ground. For this purpose we are concerned with the evidence only so far as it gives the background to the proposed amendment.

[3] The Crown case was that the appellant and his co-accused were concerned in the importation of cocaine, with a retail value of over £24.7m, concealed in a cargo of raw rubber that was shipped from Panama to Scotland.

[4] The Crown evidence was to the effect that Mair ran a transport business, J & L Transport (J & L), from premises at Stepps. J & L did not deal in international imports. It dealt almost solely with deliveries within Scotland.

[5] Among other enterprises, the appellant ran a transport business. He had an office in the attic of his home in Bothwell; but he operated the transport business mostly from J & L's premises and he had a close working relationship with Mair. When Mair was on holiday, at the critical stage when the rubber arrived in the United Kingdom, the appellant played an important part in running J & L's office; for example, by making up the wages, instructing the drivers and writing out cheques already signed by Mair.

[6] Among the witnesses who spoke to the appellant's active role in the running of J & L were David Carroll, who drove lorries for both J & L and the appellant. He said that Mair and the appellant worked for each other. Benjamin Eadie was the fleet controller of BTM Storage and its associated business Weaver Pallet Express, whose premises were next to J & L and who rented space to J & L. He said that the appellant was an associate of Mair and was in J & L's office every day. He formed the impression that the appellant owned the business and that Mair was a front man.

[7] In March 2002 faxes were exchanged between Norman Anderson, purportedly Head of Purchasing at Gates Rubber Company, Dumfries (Gates), and J & L regarding the delivery by J & L of certain containers. The faxes from Norman Anderson had headers purporting to show that they were sent by Gates. These faxes were forged. They were not sent from Gates' premises or with Gates' knowledge. No one called Norman Anderson worked for Gates; but the late husband of the appellant's godmother was called Norman Anderson. The appellant had attended his funeral less than two months earlier. On 12 August and 4 September 2002 further faxes from Norman Anderson at Gates were sent to Mair at J & L.

[8] On 4 September 2002 the rubber arrived at Felixstowe. On 5 September officers of Customs and Excise found the cocaine in one of the containers. They repackaged the bales of rubber in which it was concealed. The rubber was then trans-shipped to Grangemouth. On 7 September Mair went on holiday to Spain, leaving the J & L business in the hands of his secretary, Nicola Smith, and the appellant. It was not in dispute that before he left, Mair told the appellant of the impending arrival of the rubber.

[9] On Friday 13 September, before the rubber reached Grangemouth, the police had the appellant under surveillance. They followed a van in which he was a passenger out of a car park in Hillington. According to DS John Wylie, the appellant looked in the passenger-side wing mirror. The driver of the van drove right round a roundabout and then onto a second roundabout. He then suddenly changed from the offside to the nearside lane and took an exit onto the A8, running parallel to the M8 eastwards. 150 metres further along the A8, the driver executed a U-turn through a gap in the central reservation. The police officers decided that these were anti-surveillance manoeuvres. They therefore called off the surveillance.

[10] On the same day, the appellant contacted the shipping company and postponed the delivery of the rubber by a week. On 23 September, Mair having by then returned, the shipment was paid for and delivery was authorised. Both the appellant and Mair were present when the rubber was delivered at Stepps.

[11] Some days later, after the appellant and Mair had been involved in loading the rubber onto a truck for transfer to storage at Kilwinning, the police arrested the appellant, Mair and others and searched their homes. Fax machines were recovered from the offices of the appellant and J & L. A forensic technician, Hannah Clark, examined the appellant's machine. She printed out an activity report from it. Her evidence implicated the appellant as the sender of the forged Gates faxes.

[12] In his defence, the appellant incriminated Mair. He did not dispute that the faxes were sent from his machine, but he said that Mair had on occasions used the machine.

[13] The Anderson ground in its present form is based on the allegation that trial counsel could and should have led evidence from certain specified witnesses to demonstrate that Mair knew the name Norman Anderson; that the appellant had a limited role in the J & L business; that the appellant had separate business commitments and was of good character; that it was Mair who told the appellant of the consignment of rubber; that Nicola Smith knew of it before Mair went on holiday, and that David Carroll was the driver of the van on the occasion of the police surveillance. It is also alleged in this ground that certain evidence could have been led from two defence witnesses, Martin Conlon-King, an employee of the manufacturers, and Connie Spencer, both of whom were experts on fax machines, to support the appellant's claim that the faxes were not connected with him; but neither was called.

[14] On 1 March 2006 a proposed amended note of appeal was lodged in substitution for the existing note of appeal. The proposed amendment adds certain further complaints against trial counsel, namely that they failed (1) to challenge the evidence of Benjamin Eadie to the effect that the appellant seemed to own the J & L business and in general to challenge it so far as it suggested that the appellant had a significant role in the business; (2) to challenge DS Wylie's evidence that he could see the appellant checking in the wing mirror of the van, this being the only positive evidence that the appellant was actively involved in the alleged anti-surveillance manoeuvres; and (3) to investigate DS Wylie's evidence on that point properly and to obtain an expert opinion on it, in order to challenge DS Wylie's credibility and reliability.

[15] It is also alleged that when Hannah Clark gave evidence about the significance of the headers on the faxes and the data saved in the machines, it became apparent that the defence copies of the faxes did not include the headers. It is said that defence counsel were apparently unaware of the existence of the headers, which were of crucial importance, and that this situation was criticised by the trial judge. The expert report prepared for the defenders by Mr Conlon-King could not therefore have taken account of those matters. This leads to the further complaint that Mr Conlon-King was not asked to examine the fax machines to see if they could produce the crucial faxes complete with headers. He was merely asked to give an opinion as to whether other similar machines were capable of doing so.

[16] The grounds of appeal then allege that an examination of the fax machines "is capable of" ascertaining whether the Transit Terminal Identity function has been manipulated and "may also be capable of" ascertaining when this has been done. This is said to have been crucial for the defence since the appellant alleged that Mair had once visited his house to use his fax machine. Nicola Smith claimed on precognition to have been aware of this, but she was not cross-examined on the point. There was also a failure to investigate whether there had been surveillance of the appellant and Mair at the time when the crucial faxes were said to have been sent, when "it may have been capable of demonstrating" that the appellant was not at home, or that Mair had visited his home. The appellant was therefore deprived of the opportunity to lead evidence to suggest that any incriminating fax sent from his machine could well have been sent by Mair and to demonstrate that the machine may have been manipulated when Mair was at the appellant's home.

[17] It is then alleged that the method which Hannah Clark adopted in her examination of the fax machines "could have been subject to criticism by other experts"; that "questions arise" as to the fact that her examination of one of the machines showed that its seal had been broken. The possible significance of this was not explored. The timing of the steps that she took in her examination and the lapses in time in respect of them "are understood to be subject to criticism" as being an incorrect protocol for such examinations. Evidence could have been led to demonstrate that her methods of examination were faulty, which would have called into question both her status as an expert and the conclusions that she reached. Thus the most important tranche of evidence against the appellant was never subjected to proper scrutiny and criticism. Mr Conlon-King and Miss Spencer were available to give evidence for the defence.

[18] Lastly, it is alleged that no steps were taken to have the principal forged faxes examined by an expert document examiner to ascertain whether they were truly unitary documents printed out by a fax machine in a single attempt or whether they may have been composite documents composed over a period of time or in another way that may have been inconsistent with the Crown's position. It is said that "the significance of this in relation to the evidence of the incriminee Mair's home telephone line contacting his office fax line was never investigated."

[19] Senior counsel for the appellant submitted that the proposed amendments put the Anderson ground in greater detail. In view of the importance of the fax evidence, the court should allow the additional complaints against trial counsel on that subject to be included in the appeal with a view to the appellant's applying for an order authorising a new defence expert named Sheldon to examine the fax machines.

[20] The advocate depute made no submission.

[21] Section 107 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) provides for the granting of leave to appeal if the note of appeal and supporting documents "disclose arguable grounds of appeal." In Anderson v HM Adv (1996 JC 29) and subsequent decisions this court has made clear that to succeed in an appeal based on allegations of defective representation, the appellant must establish that the conduct of the defence resulted in a miscarriage of justice (Anderson v HM Adv, supra, at p 44E-G). That can be said to have occurred only if the appellant's defence was not presented to the court, and he was therefore deprived of his right to a fair trial, because counsel either disregarded his instructions or conducted the defence in a way in which no competent counsel could reasonably have conducted it (McIntyre v HM Adv, 1998 SCCR 379; AJE v HM Adv, 2002 JC 215; Winter v HM Adv, 2002 SCCR 720; Ditta v HM Adv, 2002 SCCR 891; Jeffrey v HM Adv, 2002 SCCR 822; Campbell v HM Adv, 2004 SCCR 220; McBrearty v HM Adv, 2004 JC 122; Kelly v HM Adv, 2006 SCCR 9).

[22] An Anderson ground cannot rest upon a criticism of strategic and tactical decisions reasonably and responsibly made by trial counsel. These are matters within the scope of counsel's legitimate judgment (Anderson, supra, at p 44B; Campbell v HM Adv, supra, at paras [114]-[119]; McBrearty v HM Adv, supra, at paras [34]-[35], [55], [57], [60]). An Anderson appeal should not be granted leave if all that is alleged is that the defence would have had better prospects of success if the defending counsel had pursued a certain line of evidence or argument, or pursued a different strategy (Ditta v HM Adv, supra).

[23] Many of the ever-increasing number of Anderson appeals are based on allegations of breach of instructions that rest only on the say-so of the appellant himself; or on criticisms of decisions that are prima facie within the legitimate scope counsel's discretion; or on speculative allegations which the appellant's advisers hope that they may be able to substantiate at a later date. In my view, this court should not countenance the granting of leave to appeal in such cases.

[24] Those presenting such appeals should bear in mind the seriousness of what they allege. Criminal defence work, if carried out conscientiously, is demanding and stressful. All too often, convicted persons blame their counsel rather than themselves for their misfortune. An Anderson ground of appeal, if relevantly pled, constitutes a formal accusation against trial counsel that he failed to present a competent and responsible defence. An Anderson appeal puts trial counsel to the trouble of having to respond to the accusation, often when the ground of appeal gives less than fair notice of what the accusation is, or where counsel has limited recall of the case and limited access to the papers. These difficulties are especially acute where, as in this case, the Anderson allegations are tabled long after the trial. All such cases cause worry to counsel until the appeal is finally resolved.

[25] For all of these reasons, in my opinion, an Anderson ground ought not to be put forward unless (1) it sets out a prima facie case that on the information available to trial counsel the defence was not properly put before the court, and that in consequence there was a miscarriage of justice; (2) it specifies that allegation on all material points, and (3) there is objective support for it. That, in my view, is a matter of professional responsibility. If the ground of appeal fails to satisfy the established test, the court must decline to allow it to proceed to enquiry on disputed questions of fact, and must dismiss it (Anderson v HM Adv, supra, at p 44H-I).

[26] The proposed amendment raises two main questions, namely the criticisms of the strategy and tactics of trial counsel in relation to the evidence of certain specified witnesses, and the criticisms of the entire approach of the defence to the evidence relating to the fax machines.

[27] It is obvious from the terms of the amendment that it is not being alleged that trial counsel disregarded the appellant's express instructions, nor that the approach of trial counsel to the lines of expert evidence and of cross-examination to which the amendment refers flew in the face of reason or was an approach that no competent and responsible counsel could reasonably have taken. In this respect, in my view, the amendment merely sets out an alternative approach that could have been taken. But it does not suggest that the alternative approach would have had any better prospects of success. On the contrary, in my view, it appears that the lines of evidence and cross-examination now suggested relate to matters that became of no great consequence in the light of the appellant's own evidence. In my opinion, the decisive consideration is that the proposed amendment does not allege that the failures referred to resulted in a miscarriage of justice. It therefore fails to meet the test required for a relevant Anderson appeal.

[28] Likewise, I consider that the criticisms made of trial counsel in relation to the fax machine evidence fail to meet the established test. On the contrary, the appellant's advisers do not seek to satisfy that test at this stage. Their purpose is to have the opportunity, once the amendment is allowed, to carry out further investigations with the sanction of the court to find out whether or not there is a basis for an Anderson appeal in relation to the evidence about the fax machines. As senior counsel for the appellant candidly put it, if it were to turn out that the proposed expert report on the machines should be unhelpful to the appellants, that aspect of the appeal would be dropped. This therefore is exactly the sort of speculative ground which this court should discourage.

[29] I propose to your Lordships that we should refuse to allow the proposed amended grounds to be received.

[30] I agree that for the reasons given by your Lordship in the chair, we should refuse to allow the proposed amended grounds of appeal to be received.

[31] I agree that for the reasons given by your Lordship in the chair, we should refuse to allow the proposed amended grounds of appeal to be received.