Scottish High Court of Justiciary Decisons

"on 19 May 2001 at Lady Walk between Newbattle Road and Easthouses Road, both Dalkeith, Midlothian you did assault [LLD, hereinafter referred to as "the complainer"] ... repeatedly place your hand under her clothing, seize hold of her, repeatedly kiss her face, restrain her, forcibly remove her clothing, rub your private member between her legs, lie on top of her, force her legs apart and did repeatedly rape her all to her injury".

In his defence he pleaded consent. After trial he was on 6 February 2002 convicted by the unanimous verdict of the jury under deletion from the libel of the words "repeatedly" (before "place"), "forcibly remove her clothing", "force her legs apart", "repeatedly" (before "rape") and "all to her injury". The appellant was sentenced to seven years imprisonment.

(1) That the complainer had given birth to her child a mere three and a half weeks previously.

(2) That the father of her child was the appellant's nephew, and his relationship with the complainer was at the material time a continuing one.

(3) That there was no evidence of any pre-existing sexual relationship between the complainer and the appellant.

(4) That the complainer was 19 years of age, while the appellant was 40.

(5) That the intercourse that took place occurred after the complainer had been ejected from the public house for vomiting.

(6) That the intercourse took place out of doors in a muddy uncomfortable location on top of nettles.

(7) That the appellant's explanation for intercourse taking place where it did made reference to his being drunk and his hormones "going"; that explanation showed no consideration for the complainer and what her view of the matter might be.

(8) That nothing was laid on the ground to protect the complainer from the mud and nettles.

(9) That the appellant had a condom with him but did not use it.

(10) That the appellant acknowledged that afterwards the complainer started to cry and walked away.

(11) That one passage in the appellant's police interview, although surrounded by other passages in which he maintained that she consented and did not say "no" until after he finished, was capable of bearing the meaning that she indicated unwillingness while intercourse was taking place. That passage, at page 7 of the transcript of the interview, was in the following terms:

"Q. At any time eh, when you were having sexual intercourse did she say no to you, or anything like that, that indicate, would indicate to you she didn't want to have sexual intercourse?

A. Yeah, she did. She started, well wi' the hands."

It was for the jury to make what they thought fit of these circumstances and draw such inferences as they regarded as capable of being drawn from their totality.

"The only corroboration of the complainer's account was evidence of her distress in her parents' house shortly after the event. Both her parents gave evidence of this, as did PC Fiona Harrison, who was one of the first police officers to come to the house. They described the complainer in a state of extreme distress. The complainer had come in and collapsed in the hall of the house. She repeatedly screamed at her mother, 'Dinnae touch me'. She lay in an almost foetal position in the corner of the hall. She appeared terrified, she would not let her mother near her and she was shuddering uncontrollably. She said that the appellant had done something horrible to her and had really hurt her. PC Harrison said that she was in the most distressed state that she had ever seen in her four years of police service. She described her as wailing, crying and in shock. She had heard the wailing and crying as soon as she got out of her car. When she saw her, the complainer appeared to be in shock and was almost not wanting to be touched. Her trousers were covered in mud."

"The basic principles are not in doubt. On the one hand there is the right of the accused to a fair trial. That right includes the right to have his defence presented to the court. Whether he is represented by counsel, by a solicitor advocate or by a solicitor, his right is to representation in such a way that his defence will be presented to the court. This is in order that he may receive a fair trial on the charge which has been brought against him. On the other hand counsel or the solicitor who represents him is not subject to direction by the client as to how that defence is to be presented. He must act according to his instructions as to what the defence is. He cannot disregard those instructions and conduct the case as he himself thinks best. But the way in which he conducts the defence within the instructions which he has been given is a matter for him. And as a general rule the accused is bound by the way in which the defence is conducted on his behalf.

There is ... a tension between the principles which give a wide discretion to counsel to conduct the defence as he thinks fit and the duty of a court of criminal appeal to correct a miscarriage of justice on the ground that the accused did not have a fair trial. On the one hand the accused cannot be deprived of his right to a fair trial. If he is deprived of that right, there will be a miscarriage of justice in the proceedings ... which must be corrected by the appeal court. On the other hand the principles which affect the position of counsel are fundamental to the administration of justice in this country. Counsel's independence must be preserved if he is to fulfil his duty to the court and to act in the public interest on his professional responsibility. Any erosion of this principle would be bound to lead to uncertainty, and with it to the risk of delay and confusion in the conduct of criminal trials, which rely to a substantial extent for their fairness and efficiency on the right of counsel to exercise their own judgment as to the way in which the defence is conducted.

Accordingly it cannot be asserted as an absolute rule that the conduct of the defence by the accused's counsel or solicitor will not be a ground of appeal. But the circumstances in which it will provide a ground of appeal must be defined narrowly. The conduct must be such as to result in a miscarriage of justice, otherwise section 228(2) of the 1975 Act will not apply. It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred where the conduct was such that the accused's defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence which he wished to be put or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him."

"[The] limit on an accused's room for manoeuvre at the appeal stage is not arbitrary but is, rather, a concomitant of the wide discretion enjoyed by an accused and his advisers as to how his defence should be deployed at his trial. An accused person who is served with an indictment receives a list of the witnesses against him. He and his advisers have the opportunity to investigate the case, to precognosce potential witnesses for the Crown and for the defence and then to decide in general how his case can best be presented and in particular what witnesses are to be led. Inevitably these decisions may be complex and may involve an assessment of the potential benefits and potential disadvantages of one course or another. The pros and cons may have to be constantly reassessed in the light of the evidence as the trial proceeds, But, for better or for worse, these decisions shape the trial and the evidence which the jury hear and on which they decide the case. The verdict is intended, whenever possible, to be final. That is in the interests both of the public and of the accused. It follows that an accused person and his advisers cannot decide, for strategic or tactical reasons, not to lead a particular witness and then, when the accused is convicted, ask this court to order a new trial so that he can adopt a different strategy or different tactics in the hope of achieving an acquittal at the new trial."

Similar considerations were stressed in Anderson and Jeffrey. When looking at counsel's explanation for the approach adopted at trial, it was appropriate to bear in mind the complexity of the considerations that had to be weighed in the course of the trial, the need for constant reassessment of where the balance of advantage lay, and the effect of the lapse of time on the ability of a busy practitioner to recall the detail of those fleeting considerations, and the court should therefore be slow to hold that counsel had gone beyond the proper scope of his discretion in deciding how to present the defence. The appellant's right was to a fair trial, not to a trial which could be said with the benefit of hindsight to have been perfect. E had been regarded as relaxing to some extent the strict criteria laid down in Anderson, but Grant should be regarded as reasserting those strict criteria.

"... in my view it would be difficult, if not impossible, for evidence to be admitted at the stage of an appeal if a tactical decision was taken not to introduce it at the trial. Likewise, if the explanation were merely that the appellant was not aware of the existence of the witness; or, where he was aware of the existence of the witness, he was not aware that he was able or willing to give evidence of any significance, this would hardly provide 'a reasonable explanation'. But it might be different if the appellant also could show that at the time of the trial he had no good reason for thinking that the witness existed, or, as the case might be, that he would give the evidence in question. Thus much might depend on the steps which the appellant could reasonably be expected to have taken in the light of what was known at the time. The underlying intention of the ...legislation is that the court should take a broad and flexible approach in taking account of the circumstances of the particular case."

On the question of the significance of the additional evidence, he referred to the propositions summarised in Megrahi at paragraph 219.

"Turning now to the couple in question they only came to my notice on two occasions during the course of the evening. The first time they drew themselves to my attention was when they were both up at the bar together to get a drink and were standing at the bar necking with one another. I thought this was a bit embarrassing not only for myself but for other customers and it did cross my mind to say something to them although they stopped before I got to that stage."

The second time they came to his attention was when the complainer was sick.

"I was unaware of the existence of the witnesses John Campbell and Gordon Young. In the course of preparing for the trial a number of potential defence witnesses were written to. [There follows a list of eight names.] The Appellant did indicate that he considered that there was CCTV footage but as the Appellant's new Agents will confirm the CCTV footage does not exist."

Mr Gilfedder went on to explain that in preparation for the appeal a precognition agent carried out inquiries about whether there was CCTV footage of the night in question. In doing so, he spoke to Gordon Young, who said that he remembered the night, and offered the evidence reflected in his affidavit. There was, Mr Gilfedder submitted, no reason at the time of the trial for the appellant to believe that Gordon Young existed and was in a position to give evidence on the point of familiarity between the complainer and the appellant in the club. The police made inquiries at the time. A Memorandum from the reporting officer to the Procurator Fiscal dated 13 May 2003 recorded that apart from an unidentified doorman, who gave a statement that was judged to be of no evidential value, no other person from the club came forward to make a statement. If the police inquiries did not uncover Gordon Young as a potential witness, it was not reasonable to expect the defence to have done so. There was therefore a reasonable explanation for Gordon Young's evidence not having been led at the trial.