Scottish High Court of Justiciary Decisons

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Cite as: [2007] HCJAC 47, 2008 SLT 319, [2007] ScotHC HCJAC_47, 2007 GWD 32-549, 2007 SCCR 389

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Nimmo Smith

Lord MacLean

[2007] HCJAC47

Appeal No: XC642/04

OPINION OF THE COURT

delivered by LORD OSBORNE

NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE

SCOTT PICKETT

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Shead,; McClure Collins,

Alt: Prentice, A.D.; Crown Agent

23 August 2007

A history of the proceedings

[1] The appellant was indicted in the High Court at Glasgow on three charges. These were in the following terms:

"(1) on 16 August 2003 at 65 Kilmorie Drive, Rutherglen, you did assault Edith Kelly.... and pull a chain from her neck and slap her on the face;

(2) on 16 August 2003 at 65 Kilmorie Drive, Rutherglen, you did conduct yourself in a disorderly manner, shout, swear, engage in a fight with Simon George Weir, .... and commit a breach of the peace; and

(3) on 16 August 2003 at Kilmorie Drive at its junction with St Blane's Drive, Rutherglen, you did assault Simon George Weir .... and did drive motor vehicle registered number P12 KET at him, cause said motor vehicle to strike him causing him to fall to the ground, and repeatedly drive said motor vehicle over his body all to his severe injury and permanent disfigurement and you did attempt to murder him and you did previously evince malice and ill-will towards him."

[2 ] The date of 12 July 2004 was fixed as a trial diet. On that date, the appellant was represented by Mr Anthony Quinn, "Mr Quinn", solicitor advocate, instructed by Messrs Beltrami Berlow, solicitors, Glasgow. When the case called in Court, Mr Quinn intimated to the Court that the appellant wished to plead guilty to charges (1) and (2), as libelled, and guilty to charge (3) under deletion of the words "and you did attempt to murder him and you did previously evince malice and ill-will towards him". The Advocate depute then stated that a plea of guilty in those terms was acceptable to the Crown. The plea was thereafter recorded in the Minute Book and signed by the appellant, the presiding temporary judge and the Advocate depute. The Advocate depute then moved for sentence and laid before the Court a copy schedule of previous convictions relating to the appellant. He gave to the Court a narrative of the offences to which the appellant had pled guilty. The Court then adjourned the diet until 2 August 2004 for the purpose of obtaining a Social Enquiry Report. Mr Quinn reserved his plea in mitigation of sentence until that adjourned diet. The appellant was remanded in custody, bail having been refused.

[3 ] On 2 August 2004 the Social Enquiry Report previously ordered was available. It is production 7 in these proceedings. Mr Quinn then addressed the Court in mitigation of sentence; he also laid before the Court several character references relating to the appellant. These are now available to us. The Court sentenced the appellant to six years imprisonment in cumulo on charges (1), (2) and (3), which sentence was ordered to commence on 12 July 2004. Certain other orders were made relating to the appellant's driving licence. The Court advised the appellant that, on account of the guilty plea that he had tendered, his references, age and clean driving record, the period of imprisonment had been reduced from eight years.

[4 ] By a Note of Appeal, dated 16 August 2004, the appellant appealed against his sentence on the following grounds:

"1. The sentence of six years imprisonment is excessive for the following reasons: (a) The appellant appeared with one minor previous conviction and the sentencing Judge indicated that she would ignore the previous conviction and treat him as a first offender. (b) The appellant pled guilty at the trial diet after negotiation with the Crown. (c) There were significant deletions in the libel in charge 3 'attempted murder' was deleted and 'did previously evince malice and ill-will towards him'. (d) There was no allegation of danger to life in the amended Indictment and the complainer's injuries were not serious and he made a successful recovery from them. (e) The appellant was employed and was in a responsible position as a Junior Manager with South Lanarkshire Council. (f) The background to the offence involved an unexpected meeting between the complainer and the accused against a complicated background. The complainers (sic) had behaved in a provocative manner and just before the offence was committed, had approached the appellant who was in the process of driving off from the locus, shouting challenges to fight. (g) After the commission of the offence, the appellant had returned to the locus to ascertain whether the complainer had been injured and thereafter handed himself over to the police and provided a statement. (h) The Social Enquiry Report was in favourable terms. There were numerous references favourable to the appellant before the Court.

2. Due regard was not given to section 196 of the Criminal Procedure (Scotland) Act 1995."

[5 ] The appellant's appeal against sentence came before this Court on 19 November 2004, when it was continued to a date to be afterwards fixed to allow counsel for the appellant to consider whether there was a proper basis for lodging an appeal against conviction. On 9 May 2005 grounds of appeal against conviction were lodged on behalf of the appellant. These are in the following terms:

"On 12 July 2004 the appellant appeared in the High Court of Justiciary sitting at Glasgow and pleaded guilty to three charges. The appeal is directed only to the last charge. The main allegation against the appellant had been one of attempted murder but the plea tendered was to a reduced libel. On that occasion the advocate depute narrated the circumstances of the offence and the diet was adjourned for the preparation of reports. On 2 August the appellant was sentenced to six years' imprisonment.

The appellant maintains that he was under a material misapprehension as to the nature of the charge to which he was pleading guilty. He had previously instructed his agents that he was not guilty of the offence charged. However, a few days before he was due to appear for trial he was told by his agent that the Crown was prepared to 'drop' the attempted murder charge and he was advised strongly to plead guilty to a lesser charge. However he was not advised of the nature or terms of the charge to which he would be pleading guilty nor was he advised of the narrative that would be presented by the advocate depute. All he was told was that he may not like what he was going to hear in Court but he was not to say anything since he would have the opportunity to have his position presented in three weeks time. On the day the pleas of guilty were tendered he was remanded in custody. He did not have the opportunity to consult with his advisers again until the day on which he was due to be sentenced.

On 2 August he consulted briefly with his advisers but there was no discussion of the contents of the social enquiry report in so far as it related to the appellant's account of the offences.

The appellant did not and does not accept that he was guilty of assaulting the complainer Simon Weir. That being so the plea tendered was based on a material misunderstanding as to the nature of the offence. Accordingly, the plea having been tendered under material error, his conviction on that charge should be quashed.

Separatim. His legal advisers failed to give the appellant adequate advice so as to ensure that he understood the nature of the charge to which he was pleading guilty. He thought that he was pleading guilty to an offence relating to the driving of his vehicle whereby the complainer was injured. That being so his instructions were not properly followed and the plea to that charge should not have been tendered. In any event no attempt was made to take the appellant's instructions on the terms of the social enquiry report. Had that been done properly it would have become obvious that the plea should not have been tendered on the earlier occasion. In the circumstances he was denied the fair hearing to which he was entitled.

Accordingly there has been a miscarriage of justice."

[6 ] On 6 May 2005 at a procedural hearing, this Court allowed the foregoing grounds of appeal against conviction to be received late and remitted them to the sift procedure. Leave to appeal against conviction was granted on 16 May 2005.

[7 ] On 14 February 2006 this Court, having heard counsel and being satisfied that the circumstances surrounding the conviction of the appellant required further inquiry, continued the appeal to a date to be afterwards fixed. Warrant was granted for the citation of certain witnesses. Thereafter, on 23 and 24 May 2006, evidence was led from the appellant himself, his father, Edward Pickett, Jason Joseph Beltrami, "Mr Beltrami", a solicitor, and Matthew Philip Berlow, "Mr Berlow", also a solicitor. Since that diet had proved insufficient to enable all the evidence to be led, it was adjourned to a further diet on 9 and 10 May 2007. On that occasion the evidence of Mr Quinn was led and submissions made to the Court.

The circumstances of the offences

[8 ] In her report to this Court, the temporary judge before whom the present case came has given an account of the circumstances of the offences involved, based upon the narrative put before her by the Crown. Those circumstances were as follows. The complainer in charge (1), Edith Kelly, had had a relationship with the appellant for some time. It appeared that they had been together for approximately seven years. There was a daughter of the relationship. Their relationship had been stormy and they had separated on several occasions. Miss Kelly and Simon Weir, "Mr Weir", the complainer in charge (3), were former work colleagues. They had met in December 2002 when Miss Kelly was separated from the appellant. Subsequently Miss Kelly and the appellant had resumed their relationship, but Miss Kelly had told the appellant that during the period of that separation she had had an affair with Mr Weir. According to Miss Kelly, the appellant's behaviour after that had become more abusive and more jealous. In June 2003 the appellant and Miss Kelly separated for the last time. On 16 August 2003, Miss Kelly and Mr Weir met for lunch in Glasgow. Miss Kelly's child, who was aged 21/2 years at the time, was with her father, the appellant. The arrangement was that he would return the child to Miss Kelly at about 6pm. Miss Kelly then changed the arrangement and telephoned the appellant requesting him to bring the child to her sister-in-law's house in Rutherglen. This was agreed. Miss Kelly arrived at her sister-in-law's house in Kilmorie Drive at about 6pm. To avoid a possible confrontation, she suggested to Mr Weir that he should remain in a taxi until he received a text message from her advising him that the appellant had dropped the child off and had left the house. At approximately 6.05pm, the appellant arrived with his daughter. He was driving a "Honda Jeep". He delivered the child to the house but an argument developed between him and Miss Kelly in connection with the intention of the latter to remove to a flat of her own. After the argument the appellant left the scene. Miss Kelly sent a text message to Mr Weir to come to the house. He arrived a few minutes later. Shortly thereafter, the appellant returned to the house and spoke to Miss Kelly, demanding to know who was in the house. An argument thereafter developed between the appellant and Mr Weir after the latter had made his presence in the house obvious. Miss Kelly became involved in the argument. During its course the appellant pulled a chain from her neck and slapped her on the face. Thereafter the appellant and Mr Weir started fighting with each other; punches were exchanged. Eventually the fighting stopped and the appellant walked away. Miss Kelly followed him and another argument took place in the street with the parties shouting at each other. Mr Weir went out of the house to see what was going on. At that point it appeared that the appellant drove off in his vehicle. He drove a short distance into St Blane's Drive, when Mr Weir walked out into the middle of the road and shouted after him: "Come on then". The appellant stopped his vehicle, paused for a few seconds and then reversed down St Blane's Drive to the point at which Mr Weir was standing. The appellant's vehicle hit Mr Weir, who fell to the ground. The appellant then reversed the vehicle over Mr Weir. He came to a halt while Mr Weir was still under the vehicle. One of the wheels of the appellant's vehicle had gone over Mr Weir's stomach. Miss Kelly was heard to shout and scream: "Don't drive away, Simon's under the car". The appellant paused for a few seconds and then drove forward over Mr Weir's stomach and legs and drove away at speed along Kilmorie Drive. Mr Weir got to his feet and was helped to the pavement. He was covered in blood and shocked. An ambulance was called and he was taken to hospital. He underwent two operations when he was found to have a deep wound to his groin and a fracture of part of the pelvic area. A bone was chipped. There was a concave depression on the inside of the pelvic area. It was thought that the injury would leave permanent scarring, although Mr Weir had made a good recovery. When the appellant was detained and questioned following these events, he admitted his involvement, but claimed that the incident to which charge (3) related was an accident. Production 6 is a transcript of the tape-recorded interview of the appellant by the police, following his detention. It should also be recorded that the appellant and his father, Edward Pickett, have sworn affidavits relative to the present appeal, which are productions 9 and 10.

The evidence
[9 ] The appellant himself was led in evidence. He explained that he was a joiner to trade, but had become a junior manager in South Lanarkshire Council. He had lost that employment on account of his imprisonment. After explaining his involvement in the criminal proceedings already narrated, he explained that, after the incident on 16 August 2003, he had gone to Rutherglen Police Office to report the matter and his involvement in it. He had been detained and was subsequently interviewed under tape-recorded conditions. At the conclusion of that interview, the appellant was arrested, cautioned and charged with the attempted murder of Mr Weir. At that stage he made no reply. Prior to his subsequent appearance in court on petition, the appellant saw a solicitor, Mr Berlow, who had been asked by the appellant's parents to assist. He had not met him before, but provided him with a brief account of what had occurred. When the appellant appeared on petition in court, he was represented by Mr Beltrami, solicitor, who was then the partner of Mr Berlow. At that stage bail was sought and granted. A week or two after that, the appellant had an interview with Mr Beltrami. That occurred on or about 26 August 2003. A further meeting took place on 4 September 2003, which was attended by both the appellant and his father. The appellant said that he was assured that the preparation of his defence was proceeding as planned. Thereafter, further meetings took place, at which the details of the case were considered. In particular, a meeting occurred on 15 June 2004 at which the terms of the indictment were considered. The appellant then raised a number of issues concerning possible witnesses for the defence, when he was reassured that everything necessary was being done.

[10 ] The appellant recounted his first meeting with Mr Quinn, solicitor advocate, in Mr Beltrami's office on 16 June 2004. He was to represent the appellant in court. This meeting was brief. The appellant explained that he had not given a detailed statement concerning the circumstances of the incidents to his solicitors. A further meeting took place between the appellant and Mr Quinn on 23 June 2004, which was again short; the appellant had been assured that preparation of his case was being undertaken as required. The appellant expressed certain criticisms of what was being done at that stage. In particular, he had been dissatisfied that no photographs of the vehicle involved in the incident had been taken, which he had considered important. The vehicle had belonged to the appellant's father. The appellant thought that the damage done to the vehicle might have been relevant. There had been discussion relating to the terms of the transcript of the tape-recorded interview with the police. The appellant had made clear that he had not deliberately driven the vehicle over Mr Weir. That position had been explained briefly to Mr Quinn.

[11 ] On 7 July 2004, the appellant again had had a consultation with Mr Quinn, when matters of detail were gone over; possible negotiations with the Advocate depute responsible for the prosecution were discussed. The appellant said that he had not contemplated a plea of guilty, although he admitted that he had pulled the chain from Miss Kelly's neck, although he denied slapping her. He stated that he had not thrown punches at Mr Weir. However, at this meeting with Mr Quinn the circumstances relating to charge (3) had been uppermost in his mind. The appellant accepted that, at this meeting, Mr Quinn had indicated that there would be a discussion between himself and the procurator fiscal. Mr Quinn had advised the appellant that it was in his best interests that such a discussion should take place. If the appellant were to have been found guilty on charge (3) as it stood, he understood that he would have been facing a sentence of six to eight years imprisonment. However, so far as the appellant was concerned, at that stage, he intended to go to trial.

[12 ] A further meeting between the appellant and Mr Quinn took place on 8 July 2004, at which matters of detail and possible discussions with the Advocate depute were considered. No such discussion had yet occurred. The appellant had been promised that Mr Quinn would revert to him later that day, or the next day, concerning that matter. The position was that the appellant had been due to appear for trial on Monday, 12 July 2004. The appellant had not heard from his solicitors again on 8 July 2004, but did do so on 9 July 2004. On that latter date, he had received a telephone call from Mr Berlow. He had advised the appellant concerning the negotiations which had been held with the procurator fiscal. He had told the appellant that there had been a "great result". The charge of attempted murder was to be dropped, if a plea of guilty to "the other charges" was forthcoming. No more had been said other than that Mr Berlow would see the appellant on the following Monday morning at the court. Later on 9 July 2004 the appellant had seen his parents at 16 Strathclyde Drive, Rutherglen, where he was then living. He had said to them that: "They'd dropped the attempted murder charge and that I was advised to plead guilty". That had been said as a result of the appellant's conversation on the telephone with Mr Berlow. The appellant went onto describe his conversation with his father. The appellant had said: "I am going to plead guilty". His father had replied: "What to?" The appellant said: "They've dropped the attempted murder charge. It's a great result". He said that his father's reaction to this conversation had been one of great surprise, since he had understood that that the appellant would be going to trial. The appellant had explained to him what had happened on 16 August 2003.

[13 ] At this point in his evidence, the appellant was asked what he had considered that he would have been pleading guilty to. He replied: "To pulling the chain off Edith Kelly's neck and fighting with Simon Weir." He was asked specifically about charge (3) in the indictment to which he replied: "My solicitor said the procurator fiscal had agreed to drop it".

[14 ] The appellant had attended at the High Court in Glasgow on 12 July 2004, where he met Mr Berlow and Mr Quinn. The interview had lasted only five or ten minutes. It was explained to him that he would require to "sign a book"; he would not like what he was going to hear. However, it had been explained to him that his story would be brought out in three weeks time. He had understood that, following the proceedings on that date, bail would be continued.

[15 ] When, in due course, the appellant's case was called he was indeed asked to "sign a book"; he had not read what he was signing. He said that he had just signed it. He did not recollect what had been said in court before that stage of the proceedings. He had thought that he had been pleading guilty to the lesser charges (1) and (2); he had thought that his signature was referable to that. He explained that he had been very nervous and frightened at the time. He stated that he had not understood that he was pleading guilty to any part of charge (3). After the plea of guilty had been recorded, the Advocate depute explained the circumstances in some detail to the judge. The appellant had listened to what was said. It was to the effect that the appellant had deliberately driven his vehicle over Mr Weir. However, he had not objected to what was happening at that time because of what he had been told by Mr Berlow and Mr Quinn before the proceedings began about not liking what he would hear.

[16 ] At the close of the proceedings, the appellant had been shocked by being remanded in custody. He had seen Mr Quinn and Mr Berlow following his remand. He had not raised his concerns with them regarding the plea which had been tendered, although he had heard the temporary judge say that he was being remanded in custody because it was a "very serious charge". In answer to a question by the court, the appellant said that had not been sure to what the temporary judge had been referring. He had not made a connection between what the Advocate depute had said and what the temporary judge had said. The appellant had been reassured by having been told that his side of the story "would come out in three weeks time." The appellant claimed that he had not realised that he had plead guilty to a "very serious charge".

[17 ] The appellant went onto explain that he had not seen Mr Quinn again until 2 August 2004 at the court. During the period of the appellant's remand in custody, he had been interviewed by a social worker, who had prepared a Social Enquiry Report. That report is production 7. The appellant agreed that the section of that report which dealt with the offending behaviour involved a consideration of the appellant's having driven over Mr Weir. When questioned by the Court regarding that, the appellant said that he had been confused regarding the situation, but thought that everything would be all right in three weeks time. He had just answered the social worker's questions. He had still not realised that he had pled guilty to an assault on Mr Weir to severe injury and permanent disfigurement.

[18 ] The appellant described what had happened on 2 August 2004 at the court appearance. He had met Mr Beltrami and Mr Quinn prior to the hearing. He had furnished them with references which he had obtained. He was assured that his story would be put before the temporary judge. There had been no discussion concerning the circumstances of the offence as described in the Social Enquiry Report. He had earlier been warned by them not to speak to the social worker while on remand without their being present. The appellant did not understand the reason for that.

[19 ] In the court itself, the appellant said that Mr Quinn had not said some of what he had wanted him to say, in particular, that he had not deliberately driven over Mr Weir. The temporary judge had asked Mr Quinn why the Social Enquiry Report appeared to be in conflict with the appellant's plea. Mr Quinn replied that the Social Enquiry Report had been compiled while the appellant was "possibly under pressure". After the sentence was pronounced, Mr Beltrami and Mr Quinn expressed the opinion that it was harsh and that an appeal against it would be lodged. However, by the time that the appeal documentation had come to be prepared, the appellant's family were seeking other legal representation. Accordingly, the appellant had not complained to Mr Beltrami and Mr Quinn about what had happened. In court the temporary judge had specifically asked Mr Quinn whether the appellant had been aware of the nature of his plea of guilty, to which the reply was that he had.

[20 ] In evidence, the appellant was next taken through the note prepared by Mr Quinn in response to an invitation by the court, production 4. He could not agree with what was said there. He claimed that, before he had signed the court record of the plea of guilty, his solicitors had not gone over the indictment with him, although he agreed that he had received a copy of it. Throughout the discussions with his legal advisors he had made it clear that he had not deliberately run over Mr Weir. The appellant said that he had not understood that he was pleading guilty to any part of charge (3). He could not remember any discussion along those lines. He would never have agreed to pleading guilty to any part of charge (3). What had happened at the incident was that the appellant had reversed the vehicle towards Mr Weir, who had been coming towards it. He had jumped on top of the spare wheel of the vehicle, mounted at the back, but had fallen off, whereupon the vehicle went over him. There had been a collision. The appellant agreed that he could have stopped the vehicle. There was no possibility that he had discussed the possibility of a plea of guilty to any part of charge (3) with his legal advisors. It had not been explained to him that that was what was to be done. The appellant was then examined as to the terms of his affidavit, production 9. He stood by its terms. He observed that he did not think that his case had been properly prepared by Mr Beltrami and Mr Quinn. Certain witnesses who should have been interviewed had not been. He agreed that he had been told that the charges which he was facing after the negotiation of the plea of guilty were still serious, as described in paragraph 17 of the affidavit.

[21 ] In cross examination, the appellant admitted that he had understood that he had been facing serious charges, including a charge of attempted murder. He had understood that he was charged with assault, the nature of which crime he understood. The appellant had had several discussions with his legal advisors. He could not remember now all that had been said.

[22 ] In regard to the meeting on 8 July 2004, the appellant agreed that he had been advised that negotiations with the procurator fiscal were in his best interests. He had put his faith in his legal advisors, but had continued to believe that he was going to trial. What was said in paragraphs 13 and 14 of production 9 was correct, as were the contents of paragraph 15. The appellant had read those parts of the affidavit before he had signed it. The appellant had given instructions for a plea of guilty for the first time only during the course of the telephone call on 9 July 2004 from Mr Berlow. Nevertheless, even then he had been unclear as to the nature of the pleas to be offered. Despite that, he had not sought clarification. As regards the first court hearing, on 12 July 2004, the appellant reaffirmed that he had not read the contents of the book which he had signed, although he was not in the habit of signing things which he had not read. He claimed that he had not realised that he was pleading guilty to charge (3) under deletions. That had never been explained to him. The appellant was unable to explain why he had not asked for details of the pleas tendered. It had been wrong of Mr Quinn to say to the temporary judge that the appellant had understood what he had pled guilty to. However the appellant admitted that he had not protested about what was happening at that stage. When the sentence of six years imprisonment had been imposed, the appellant knew that it must have been in respect of something more serious than charges (1) and (2). He had not been expecting a prison sentence at all. When the temporary judge had imposed her sentence, the appellant had understood that she had been talking about the incident with the vehicle and had been taking into account the circumstances of that.

[23 ] The appellant's father, Edward Pickett, next gave evidence. He confirmed the sequence of events that had followed the appellant's arrest following the incident of 16 August 2003. He had attended at the High Court building on 12 July 2004 and 2 August 2004, but had not actually been in the courtroom on the former occasion. He explained that the appellant had, at an early stage, informed him that he had been involved in an accident. Following the incident, the appellant had reported to a police office. The appellant had informed the witness that he had been charged with attempted murder. The firm of Messrs Beltrami Berlow had been engaged on 17 August 2003 to represent the appellant. The witness had attended a meeting with Mr Beltrami some two or three weeks after the appellant's first appearance in court on 18 August 2003, along with the appellant. They had been assured that no stone would be left unturned in the preparation of the appellant's case. The vehicle involved in the incident had belonged to the witness. The witness had been concerned that the damage to the vehicle should be photographed. The witness himself had taken photographs. He had been interested in the damage to the roof of the vehicle. He had been informed that a heavy instrument had been used on the roof. The vehicle possessed a step at the rear. It appeared that someone had jumped onto it. After the initial stages, the witness had continued to take an interest in his son's position and in the progress of the case.

[24 ] The witness confirmed that the trial diet was 12 July 2004. On the Friday before that, 9 July 2004, the witness had been working. He had spoken to the appellant regarding the case after work, since he wished to know what was to happen on 12 July 2004. On 9 July 2004 the appellant had come home in the evening. He had not been his usual self. The witness had asked him if he was worried, to which he replied that he was. The witness himself was then aware of the terms of the charges which the appellant faced. The appellant had said to him: "I am advised to plead guilty". The witness said: "How can you?" The appellant then said: "I've been advised to plead to a lesser charge", however he had been unable to say exactly what the lesser charge was. The witness considered that this situation was what he called "a turnaround". At the court building, on 12 July 2004, following the appellant's remand in custody, Mr Berlow had said to the witness: "I've got egg on my face". This was a reference to Mr Berlow's previous expectation that the appellant would be granted bail. After the appellant had been sentenced, the witness had contemplated finding a fresh solicitor for him, because he considered that the first one had not done a proper job. The witness had not understood why the solicitors first involved had made the appellant change his plea.

[25 ] In cross examination the witness confirmed that on 9 July 2004 he had come to understand that there was to be a change of heart. The appellant was to plead to a lesser charge or lesser charges. He had asked the appellant what he was pleading to, but the latter was unable to tell him. However, he had made it clear that it related to Mr Weir and the vehicle, in some form. The appellant had understood that he had knocked down Mr Weir. That was what he was told he was pleading guilty about. The witness had understood that the allegation of attempted murder was to be deleted. He was in no doubt, from what the appellant had said, that it was that incident to which the plea was to relate. The appellant had said to him that his lawyers had advised this course. The witness said that he had understood that the appellant was to plead guilty to knocking down Mr Weir; not driving over him.

[26 ] The next witness led on behalf of the appellant was Mr Beltrami, a solicitor in private practice, who had previously been in partnership with Mr Berlow. The partnership had ended in October 2005. Prior to that, the witness had represented the appellant in connection with the present matter. The witness was taken through the details of production 11, a copy of the account incurred to the witness' firm in this connection. Mr Quinn had been instructed to represent the appellant at the High Court hearings. The witness had little recollection of what had occurred prior to the court hearings. The witness was taken through the documentation contained in productions 12 and 13, which related to the preparation of the case. The witness had not been involved in discussions concerning the plea of guilty, since he had been on holiday at that particular time. Furthermore he did not have a recollection of what had been discussed on 2 August 2004.

[27 ] In cross examination, the witness explained his practices and procedures in relation to the preparation of criminal cases for trial. He had explained the relevant procedure to the appellant; he stated that there was no apparent lack of or difficulty concerning understanding such matters on the part of the appellant. He did not recollect any requests for clarification. He explained that, having received a courtesy copy of the High Court indictment, his practice would have been to read it to the client. The witness was in no doubt that the appellant had understood the nature of the charges brought against him. Each charge would have been discussed individually with the appellant, with a view to obtaining his instructions. This witness had attended the consultations held on 16 and 23 June 2004. When the witness had gone on holiday prior to 12 July 2004 he had understood that there was to be a trial. He was unable to say whether there had been any discussions concerning the possibility of a plea of guilty. When the witness had returned from holiday, he learned that a plea of guilty had been tendered in particular terms. The plea represented a change of position so far as the appellant was concerned, but at no time had the appellant complained concerning the recording of the plea of guilty. Had that occurred, the witness would have remembered.

[28 ] The next witness led on behalf of the appellant was Mr Berlow, who had been in partnership at the material time with Mr Beltrami. He recollected the appellant's case. He confirmed what had taken place in the case, by reference to the account of his firm, production 11. In particular he confirmed that consultations had occurred on 7 and 8 July 2004, attended by Mr Quinn, solicitor advocate. During that particular week there had been negotiations with the Crown in connection with the prosecution, with which Mr Quinn had dealt. The situation had been somewhat fraught because the appellant was worried about the case, as he should have been. The legal aspects of the case had been explained to him. The witness had not been involved in discussions with the procurator fiscal or the Advocate depute. What had in fact occurred was that Mr Quinn had had discussions with the Advocate depute and had negotiated a plea to an offence far less serious than that charged in charge (3). The witness had not spoken to the appellant between the time of the meeting on 8 July 2004 and the attendance at the High Court on 12 July 2004. He was unable to confirm what might have been said during the course of any telephone conversation between Mr Quinn and the appellant on 9 July 2004.

[29 ] As regards the appellant's instruction in relation to negotiations, the witness confirmed that the appellant would have had explained to him the various options and the sentences which might be imposed in different situations. In particular it would have been made clear to the appellant that the sentence imposed following a plea of guilty to a serious assault would be less than one imposed following a plea of guilty to attempted murder. Mr Berlow said that a plea of guilty would never have been tendered to the court without the client's clear instructions. Furthermore, the terms of any plea to be tendered would have been arranged before the appearance at the court. The recollection of the witness was that during the somewhat fraught consultations on 7 and 8 July 2004 instructions had been obtained from the appellant regarding a plea of guilty. In consequence the witnesses cited for the trial were countermanded on 9 July 2004.

[30 ] Asked about an entry in his firm's account, production 11, dated 10 July 2004, which related to the making of preparations for a trial, the witness said that pleas of guilty did not always materialise; it was necessary to be prepared. He accepted that he might have been the conduit through which the outcome of the negotiations had been communicated to the appellant. He might have described the dropping of the element of attempted murder in charge (3) as a "great result". The witness was clear that he had explained to the appellant at length that the reversing of the motor vehicle into Mr Weir amounted to an assault. Likewise Mr Quinn had explained that aspect of the case in great detail.

[31 ] Looking generally upon the appellant as a client, the witness said that he had had difficulty in accepting certain things. In consequence of that, the witness and Mr Quinn had explained the different crimes potentially involved in the indictment and their characteristics. The appellant had been very anxious and nervous. Clients differed greatly. Explanations on different levels might require to be given, depending upon the client. The appellant himself was an educated man; the witness had had no reason to suppose that he was not understanding what was explained to him. If the appellant had stated to the witness that what had occurred was an accident, the event could not properly have been treated as an assault. The witness was quite unable to accept that the appellant could have thought that charge (3), as a whole, was to be dropped by the Crown. One aspect of the case about which the appellant had been concerned was the length of the sentence which he might receive. The witness had not considered that he would receive a sentence of six years imprisonment; he had been surprised at that sentence. Once again, the witness affirmed that the appellant had given instructions to tender a plea of guilty to charge (3), as modified. He was one hundred per cent sure that the appellant had understood what had been said to him. The witness had not obtained written consent from the appellant to tender the plea, since he had no reason to think that there was any failure of understanding.

[32 ] As regards the appearance in the High Court on 12 July 2004, the witness did not recollect the Crown's narrative of the offence to which charge (3) related. He had been surprised when bail had been withdrawn. He did not recall meeting the appellant in the cells following his remand in custody. He agreed that he would have been embarrassed in the circumstances, since he had expected that bail would have been continued. The witness was unable to comment on the entry in his firm's account, production 11, dated 16 July 2004; on that date he had been in Barra on a locus inspection.

[33 ] Under cross examination, the witness stated that any telephone call on 16 July 2004 could have had nothing to do with the plea of guilty. The witness explained that, initially, the appellant's position had been that the incident involving the motor vehicle had been an accident. However, on 7 July 2004, discussions about that took place. Mr Quinn had obtained further information about the evidence available to the Crown, which appeared to be damaging to the appellant. That information had come from an earlier meeting with the Advocate depute. That material had been explained to the appellant. In particular, he had been made aware of the existence of a witness who stated that they had shouted to the appellant: "Do not move the car because there is someone underneath it". The appellant had then driven off and run over Mr Weir for a second time. That state of affairs had been explained to the appellant with the advice that it was desirable to avoid a trial.

[34 ] The witness was questioned about the possibility that the appellant had been advised to plead guilty to charges (1) and (2), but not guilty to charge (3). He replied that advice of that nature would never have been given in the circumstances. The discussions with the appellant on 7 and 8 July 2004 had been about the possibility of discussing with the Crown some modification of charge (3). The appellant could not have been in doubt about that. What was contemplated was the reduction of the charge of attempted murder to a lesser charge.

[35 ] The witness recollected being in attendance at the meeting with the appellant on 8 July 2004 when charge (3) had been discussed. Mr Quinn had said that the charge might be reduced to one of assault to severe injury. It was left to him to resolve the matter with the Advocate depute. In due course, the Advocate depute had agreed to drop the allegation of attempted murder from charge (3). Mr Quinn certainly had had authority to agree to such a proposal with the Advocate depute.

[36 ] On Monday 12 July 2004 the witness thought that everything had fallen into place. He had warned the appellant that a custodial sentence was a possibility. At court on that date, the witness had met with the appellant. They had had to wait for two hours before the case was called in court. There appeared to be no doubt in his mind as to what was the nature of his plea; it had been explained to him previously.

[37 ] In re-examination, the witness stated that the risks of going to trial had been explained to the appellant. One outcome of that could have been that he would have been convicted of attempted murder; if the charge could be reduced, that was a benefit which could make a difference of years in the sentence of imprisonment to be imposed.

[38 ] The final witness for the appellant was Mr Quinn, a solicitor advocate, with rights of audience in the High Court of Justiciary since 1994. He had been instructed to represent the appellant by Messrs Beltrami Berlow. He had furnished a note in writing in response to the appellant's grounds of appeal against conviction, which was production 4. In that note there were recorded the various meetings and consultations that the witness had had with the appellant. In addition, the witness had met with the Advocate depute assigned to the case on two occasions in the Crown Office. What was recorded in this note was based upon the witness' recollection and diary entries. The witness was taken through the entries in Messrs Beltrami Berlow's account, production 11. On 8 July 2004, there was a reference to a possible negotiations with the Advocate depute, but that matter had been discussed also on 7 July 2004. The witness had had meetings with the Advocate depute on 6 and 9 July 2004. By the latter date, the witness had had instructions to negotiate a plea. At the earlier meeting with the Advocate depute, the witness had been given information regarding the Crown's case on charge (3). In particular, the Crown had a medical witness able to speak to the injuries inflicted on Mr Weir; in addition, there was an independent eye-witness to the matters which formed the basis of charge (3). Prior to 7 July 2004, preparations were being made for a trial, but, on that occasion, discussions took place regarding a possible plea. A factor in the consideration of Mr Quinn had been that the independent eye-witness's evidence was very compelling against the appellant. There was explained to the appellant the fact that a conviction for attempted murder was a possibility, if the matter went to trial. On 8 July 2004, the witness had recapitulated the options open to the appellant and had repeated the advice given to him on the previous day, to the effect that there was a "strong possibility" of a conviction of attempted murder. It had also been explained to the appellant that, on charge (3), there was a serious chance of a custodial sentence being imposed. The outcome of the discussion on 8 July 2004 had been that the appellant had instructed Mr Quinn to approach the Crown with a view to negotiating a plea in regard to charge (3). He had been prepared to plead guilty to anything short of attempted murder. In the opinion of the witness, the appellant had had no difficulty in understanding what was being said to him. The instructions given on 8 July 2004 amounted to a radical change in his position.

[39 ] At the witness's meeting with the Advocate depute on 9 July 2004, it had been indicated by the latter that the Crown was prepared to delete attempted murder and the averment regarding the evincing of malice and ill-will from charge (3), if a plea were to be forthcoming. The witness explained that thereafter, he had spoken to Mr Berlow, asking him to advise the appellant as regards what had been achieved.

[40 ] On 12 July 2004, the witness had come to the High Court on the understanding that the case was going to be resolved. When he met the appellant at the court building on that day, he had confirmed his instructions. He had explained to the appellant that his plea in mitigation would be reserved for the sentencing diet on 2 August 2004. He had told the appellant that he hoped that the latter would again be admitted to bail, but that that could not be guaranteed. When the case came into court the Crown narrative had been given, following which the temporary judge ordered a Social Enquiry Report. The witness had seen the appellant in the court cells following his appearance, when he was distressed at having been remanded in custody. The appellant had signed the court book recording a plea of guilty without difficulty; he had been warned that it would be necessary for him to do so.

[41 ] On 2 August 2004, the witness had spoken to the appellant, but did not have a recollection about the subject matter of the conversation. He considered that he would have seen the terms of the Social Enquiry Report before the case was called. He recollected that the appellant had provided him with written references to be put before the court. The witness was taken through the terms of the Social Enquiry Report, in particular the section dealing with offending behaviour. He confirmed that his final instructions from the appellant were that he been responsible for an assault upon Mr Weir. He had instructed that he had twice driven over Mr Weir.

[42 ] The witness confirmed that an interchange with the temporary judge, such as that described on page five of her Report, production 8, had taken place. What the witness was narrated as having said there was correct. The significance of what was narrated in the Social Enquiry Report had not struck the witness on 2 August 2004; sometimes his experience suggested that accused persons gave mitigatory statements to social workers. In summary, the witness stated that there was no possibility whatsoever that the appellant had misunderstood what was discussed, particularly at the meeting of 7 July 2004.

[43 ] In cross examination, the witness outlined his extensive experience of advocacy in criminal matters. He had worked in that area of practice since 1980. Asked about the independent eye-witness previously referred to, the witness said that they had heard Edith Kelly shout: "Don't drive off, Simon's under the car". It was the fact that the appellant had indeed then driven off that persuaded Miss Kelly that he had done so deliberately. The witness was in no doubt that he had received instructions from the appellant to negotiate with the Crown concerning the withdrawal of the allegation of attempted murder. There had been no question of the appellant pleading guilty merely to a road traffic offence. Furthermore, there was no question of charge (3) being dropped as a whole. The witness stated that, had he not had instructions to negotiate a plea from the appellant, he would not have approached the Advocate depute. It was not his practice to obtain instructions for a plea of guilty in writing. In consequence of the agreement reached with the Advocate depute as to the terms of the plea, witnesses for the trial had been countermanded.

[44 ] At the conclusion of the evidence for the appellant, the Advocate depute indicated that the Crown did not intend to lead evidence.

Submissions of the Appellant

[45 ] Counsel for the appellant commenced by drawing our attention to Healy v HMA 1990 S.C.C.R.110, a case concerned with an attempt to withdraw a plea of guilty. He stated that that matter did not arise in the present case, but that certain observations made in the case were of assistance here. At page 118, the Lord Justice Clerk indicated that it would not be in the interest of justice if individuals, after they had been sentenced, were permitted lightly or easily to withdraw a plea of guilty which had been tendered merely by asserting that, on their part, there had never been any real willingness to make the plea. The test was whether the pleas had been tendered under some real error or misconception, or in situations which were clearly prejudicial to the appellant. Counsel submitted that there were prejudicial features in being in the present case. In particular, the appellant's legal advisors did not have complete knowledge of the Crown's case. There was a conflict between the need to do justice and the need for finality in criminal proceedings. The former was the dominant consideration. Turning to the evidence, counsel acknowledged that there was a conflict between the appellant's evidence and that of other witnesses, particularly Mr Quinn. It was not suggested that any person had been dishonest in the giving of their evidence; the matter was one of perceptions and different perceptions existed. Counsel acknowledged, in response to a question by the court, that the appellant had not intervened when his pleas of guilty had been tendered. It was suggested that he might have been frightened or confused at that time. Putting the matter simply, if the appellant had told the truth in his evidence to this court, he should succeed in his appeal; if he had not, the appeal should fail. The unsatisfactory nature of the situation was highlighted by the fact that the sentencing judge had become concerned about the pleas recorded, as appeared from her report.

[46 ] The background to the matter was that the defence case for the appellant had not been properly prepared for trial. At least as late as 7 July 2004, the appellant had thought that he was going to plead not guilty and go to trial. However, it was suggested that soon afterwards he gave instructions to plead guilty to "anything short of attempted murder". A conflict had emerged between the description of the offending behaviour in the Social Enquiry Report, obtained after the pleas of guilty had been recorded, and those pleas. In the face of that, professional action had been necessary. There should have been a consultation on the matter and it should have been resolved. However, it was not dealt with satisfactorily. It was accepted that Mr Quinn had been very clear in his own mind as to what his instructions were. However, for one reason or another, the appellant thought that his viewpoint was to be expressed on 2 August 2004. A factor of significance was that, in the reference from the Minister of Rutherglen West Parish Church, dated 28 July 2004, it was said that the appellant had pleaded guilty to a charge of serious assault, but maintained that "it was not done intentionally". That gave rise to serious concern about the appellant's state of mind and understanding of the circumstances.

[47 ] Counsel recognised that the road that he had to follow was a hard one, with obstacles in the way. However, the appellant wished his position to be put before the court. In bringing this appeal, the appellant had always understood that, in the event of its success, there could be a second prosecution. If there were doubts in the mind of the court regarding the justice of the situation, those doubts should outweigh the need for finality in criminal proceedings. It was contended that there had been serious misunderstanding regarding the incident giving rise to charge (3) between the appellant, on the one hand, and Mr Quinn, on the other. The appellant had expected his position to have been put before the temporary judge on 2 August 2004. There had been no question in the present case of an agreed Crown narrative. As previously submitted, there was no question of dishonesty on the part of any witness. There had been a series of unfortunate misunderstandings. The approach adopted in Healy v HMA should be applied; the appeal should be allowed in order to do justice. The conviction of the appellant should be quashed. There was no obvious obstacle to a retrial. If there were technical objections to a remedy being granted, the present appeal could be treated as an application to the nobile officium.

Submissions of the Crown
[48] The Advocate depute submitted that there was a need for finality in criminal proceedings. Pleas of guilty should not be questioned, save in the most exceptional circumstances. There did not appear to be any difference of view between the parties as to the law in that respect. At the heart of the case was a conflict of fact. It was said that the appellant throughout had thought that he was pleading guilty to two minor charges, charges (1) and (2), but not to any charge concerned with driving over Mr Weir. The evidence of Mr Quinn and Mr Berlow suggested that that was not the position. The position of Mr Quinn and Mr Berlow was that there were to be negotiations with the Crown concerning the terms of charge (3). A plea of guilty to that charge would be made upon the basis that the allegation of attempted murder was withdrawn. The evidence of the appellant's father was of some significance. His evidence indicated that the appellant had understood that he would be pleading guilty to a charge relating to the knocking down of Mr Weir, with the deletion of the allegation of attempted murder. That was in stark contrast with what the appellant had said in his evidence. The evidence of Edward Pickett was in conformity with the position of Mr Quinn and Mr Berlow. The Court was being asked to believe that those two experienced solicitors had laboured under a serious misapprehension regarding the appellant's understanding and instructions. That was against a background in which it was not said that the appellant had any learning or language difficulties. The opposite was the case. The appellant had held employment in a managerial position. He knew very well at the time of the interview by the police that he was facing a charge of attempted murder. That charge had appeared in the petition at the outset of the case and had appeared as charge (3) in the indictment served upon him. Instructions must necessarily have been taken from him on that charge. It would stretch credibility to breaking point to argue that the appellant was in a "daze" at all consultations and in court on two occasions.

[49 ] Mr Quinn had not been challenged as regards his evidence concerning the advice that he had been given relating to the categories of assault. Plainly there had been discussion of assault to the danger of life. Furthermore, his suggestion that he had received instructions to negotiate with the Crown was not challenged. Indeed, in paragraph 14 of the affidavit sworn by the appellant, production 9, he affirmed that he had agreed to negotiations taking place. That material supported the evidence of Mr Berlow and Mr Quinn regarding the nature of the discussions which occurred. If the appellant had not been prepared to agree to a modified plea to charge (3) there would have been no purpose in the negotiations. Mr Quinn was an experienced solicitor in criminal matters. It would have been inconceivable that he would have opened discussions with the Crown and agreed a plea, if he was not clear as to the nature of his instructions.

[50 ] Certain criticisms had been ventilated in examination by counsel for the appellant and faintly in submissions regarding the preparation of the appellant's case. That did not feature as a ground of appeal. In any event, such criticisms were not borne out by the evidence. What remained to be done was that two witnesses had to be precognosced. Mr Quinn met with the Advocate depute and had been told about the evidence that they could give. Thus, Mr Quinn had all the material necessary for the proper conduct of the case. This appeal was not concerned with bad advice or a failure to obtain evidence; it was based upon the view that instructions had not been given for a plea of guilty to a modified charge (3). The suggestion was that Mr Quinn had acted in defiance of the appellant's instructions. A major difficulty for the appellant was that, the plea of guilty having been tendered and accepted, there followed confirmatory events that required the appellant's participation. In particular, he required to sign the court record of the plea, which he did without protest. Mr Quinn had given evidence to the effect that, on 12 July 2004, he had confirmed with the appellant his position regarding the plea. The appellant himself was present in court during the proceedings. He must have heard Mr Quinn tell the temporary judge that he was pleading guilty to charges (1), (2) and (3), under deletion of the allegation of attempted murder and of having previously evinced malice and ill-will. If he had thought that he was pleading guilty only to charges (1) and (2), he might reasonably have been expected to make that clear at the time. There followed the Crown narrative which embraced the circumstances of charge (3). Following the court hearing on 12 July 2004, the appellant said nothing to his legal advisers concerning the problem which he now said existed.

[51 ] Something had been said about the terms of the Social Enquiry Report, but a fair reading of it showed that it was not materially inconsistent with the appellant's plea. Reference was made to page 2 of that document. The section of the report headed "Review and Conclusion" was significant. It narrated that the appellant had acknowledged the seriousness of his actions. That was inconsistent with the notion of a mere accident.

[52 ] The Advocate depute went on to draw our attention to certain authorities. He said that Reedie v HM Advocate 2005 SCCR 407 set out the proper approach to be taken to a case such as this. At paragraph 11 the Lord Justice Clerk stated that, in view of the conclusive nature of a plea of guilty, it could be withdrawn only in exceptional circumstances, examples of which were given. The Court ought to be very slow to accept claims that a plea of guilty was tendered under material error. In this connection the Advocate depute relied upon Healy v HM Advocate at pages 118-119. An example of such exceptional circumstances was to be found in Boyle v HM Advocate 1976 S.L.T. 126 at pages 127 and 129. The Advocate depute also relied on Regina v Green 15 September 1995, (C.A.) In the present case, there had been no fewer than four consultations in a case which was of a relatively simple character.

[53] As regards procedure, the present proceedings were an appeal under section 106 of the Criminal Procedure (Scotland) Act 1995. That was a correct vehicle in which to raise the issue, as appeared from Evans, Petitioner 1991 S.C.C.R. 160 at pages 163-164. In all the foregoing circumstances, the appeal should be refused.

The decision
The nature of the present proceedings
[54 ] There can be no doubt that the present proceedings are an appeal brought under the provisions of section 106 of the 1995 Act. When they commenced, the appeal was confined to one against sentence, as appears from the Note of Appeal, dated 16 August 2004. In consequence of the interlocutor of this Court, dated 6 May 2005, the scope of the appeal was allowed to be extended to embrace an appeal against conviction, when the grounds of appeal against conviction were allowed to be received late. At one stage during the submissions of counsel for the appellant, it was suggested that these proceedings might be treated as an application to the nobile officium of the Court, if it were considered that the appellant's plea of guilty to charge (3) could not be "withdrawn", in the context of an appeal under section 106 of the 1995 Act. In our view, for the reasons explained by Lord Justice General Hope in Evans, Petitioner at pages 163 and 164 of the report in that case, there can be no question of these proceedings being treated as a competent application to the nobile officium.

[55 ] Certain consequences follow from a proper appreciation of the nature of the present proceedings. First, the powers of this Court in the context of this appeal are as defined in section 118 of the 1995 Act. Those powers do not embrace a power in the Court to authorise the withdrawal of the appellant's plea of guilty to charge (3) in the indictment. Secondly, the only question for this Court in the present appeal is whether there has been a miscarriage of justice in the circumstances of this case, which is a consequence of the provisions of section 106(3) of the 1995 Act. In the event of the Court concluding that a miscarriage of justice has occurred, the Court's only option would be to quash the appellant's conviction on charge (3) of the indictment; there could be no question of an order being pronounced which would have the effect of restoring these proceedings to the state in which they stood prior to the appellant's tendering of pleas of guilty. In other words, in these proceedings, the clock cannot be turned back.

[56 ] Since, in the course of the hearing before us, in examination, cross-examination and argument, certain criticisms were made of the adequacy of the preparations made by the appellant's then legal advisors for the trial contemplated before the pleas of guilty were tendered and accepted, we think it right to say that we regard such criticisms as irrelevant to the issues properly arising in the case. There is no ground of appeal reflecting such criticisms. Furthermore, in the context of the present case, there could be no reliance upon the principles set out in Anderson v HM Advocate 1996 JC 29. That case was concerned with the question of whether a representative's skill or diligence, or lack of it in preparation or conduct of a defence in a trial could constitute a miscarriage of justice. In our opinion, the principles expressed in that case can have no application in the context of a prosecution resolved by a plea of guilty, such as this.

[57] The concept of a miscarriage of justice has not been and probably cannot be comprehensively defined. However, we consider that guidance may be derived from authority as to the criterion which this Court ought to apply in a context where it is suggested that a plea of guilty has wrongly been made and accepted and a sentence passed upon the resulting conviction. In the highly exceptional circumstances of Boyle v HM Advocate, such a situation existed. It became evident that the applicant for leave to appeal in that case had pled guilty to a charge of which he was innocent. It was conceded by the Crown that the applicant could not have been concerned in the robbery to which he had pled guilty and that there had been a miscarriage of justice in respect of the conviction. In delivering the Opinion of the Court at page 129, Lord Cameron said:

"It is obvious, however, that very grave difficulties must lie in the path of an applicant who seeks to complain of a miscarriage of justice in a case in which he himself has not only tendered a plea of guilty to the charge libelled against him on which the conviction sought to be appealed against is recorded, but has done so when acting with legal advice and in full knowledge of the nature and detail of the charge to which deliberately and falsely he has tendered that plea and further, has through the mouth of his counsel, presented a precise and detailed plea in mitigation of sentence. While that is necessarily so, it does not follow that there cannot be a case in which appeal against conviction following a recorded plea of guilty may not be competently submitted to this court."

[58 ] While in Rimmer, Petitioner, 2002 S.C.C.R. 1, at page 8, certain reservations were expressed by Lord Cameron of Lochbroom concerning the procedural aspects of the decision in Healy v HM Advocate, we do not think that those criticisms extend to what was said in the latter case about the circumstances in which the Court may grant a remedy where it is averred that a plea of guilty has wrongly been tendered. At page 118, Lord Justice Clerk Ross indicated that before the Court would grant a remedy in relation to such a plea of guilty

"the court would require to be satisfied that there were exceptional circumstances justifying such a course. As the advocate-depute put it, it would have to be shown that the pleas had been tendered under some real error or misconception or in circumstances which were clearly prejudicial to the appellant. We are satisfied that that is the approach which must be made because it is a recognised principle of the law that there must be some finality in litigation and it would not be in the interests of justice if individuals after they had been sentenced were permitted lightly or easily to withdraw pleas of guilty which had been tendered merely by asserting that on their part there had never been any real willingness to make the plea."

[57 ] These views were echoed in Reedie v HM Advocate. Lord Justice Clerk Gill, at paragraph 11 (of the Opinion of the Court), said this:

"A plea of guilty constitutes a full admission of the libel in all its particulars (Healy v HM Advocate). It is not a conditional admission that is subject to reconsideration in the light of a subsequent decision of the court (Dirom v Howdle 1995 S.C.C.R. 368), nor, in our view, in the light of a subsequent verdict in the trial of another party on the same charge. In view of the conclusive nature of such a plea, it can be withdrawn only in exceptional circumstances (Dirom v Howdle): for example, where it is tendered by mistake (MacGregor v MacNeill 1975 J.C. 54) or without the authority of the accused (Crossan v HM Advocate 1996 S.C.C.R 279). There is little scope, if any, for the withdrawal of a plea that has been tendered on legal advice and with the admitted authority of the accused (Rimmer, Petitioner)."

It is upon the basis of the foregoing statements of the appropriate criterion in a context such as this that we now proceed.

Our assessment of the evidence
[60 ] Plainly, the principal basis of the appellant's case that his plea of guilty to charge (3) was tendered under real error or misconception must be his own evidence. As regards his testimony concerning the incident involving the motor vehicle which he was driving and the complainer, Simon Weir, we did not find his evidence particularly impressive. In relation to his several meetings with his legal advisers, he was, at times, vague. It appeared to us that he was also at pains to minimise the duration of these meetings, although that was the subject of precise records in the account of Messrs Beltrami Berlow, production 11. Furthermore, he appeared to say different things at different times concerning his pleas of guilty, particularly in regard to charge (3). He said that he had told his father that he was pleading guilty since the Crown had dropped the attempted murder charge, that is to say that he was pleading guilty to charge (3), under deletion of the reference to attempted murder. However, at other stages in his evidence he stated that he did not understand that he was pleading guilty to any part of charge (3). This latter position seemed difficult to reconcile with the position which he adopted with the author of the Social Enquiry Report, production 7, to whom he acknowledged "the seriousness of his actions". That could hardly be a reference to the subject matter of charges (1) and (2) in the indictment. In addition, we have great difficulty with the appellant's explanation of why he did not protest to his legal advisors on the occasion of the court hearing on 12 July 2004, when the terms of the pleas were signed by him and were the subject of oral discussion in court. We find it almost inconceivable that a man, such as the appellant, who was plainly of some ability, had held a managerial position with his former employers and whose mental health was not in question, could sit silently in court while, according to him, Mr Quinn, his solicitor advocate, grossly misrepresented his position. During the course of his evidence, the appellant repeatedly claimed that matters relating to the scope of his plea to charge (3) had not been explained to him by his legal advisors. As we shall explain later, having regard to the evidence of those advisors, we find that position impossible to accept.

[61 ] The appellant's father, Edward Pickett, gave evidence generally about his son's position. However, he also gave evidence of importance concerning a conversation which he had had with the appellant on Friday 9 July 2004 after Mr Berlow had telephoned the appellant to say that the Crown was prepared to drop the attempted murder element in the indictment. He explained that the appellant had said to him that he had been advised to plead guilty to a lesser charge. This witness asked the appellant what he was pleading guilty to. He then said that the appellant had replied that it related to Mr Weir and the car in some form. He said that the appellant understood that he had knocked Mr Weir down. It was that that he was pleading guilty to. Edward Pickett understood from what the appellant said to him that the allegation of attempted murder was coming out but that he was pleading guilty in connection with that particular incident. However, Edward Pickett later said that while the appellant was to plead guilty to knocking down Mr Weir, he was not pleading guilty to driving over him; that was his belief.

[62 ] We have no reason to doubt the evidence of Edward Pickett regarding this particular conversation. Its importance is this, that it completely undermines the suggestion made by the appellant himself that he was not pleading guilty to any part of charge (3).

[63 ] As regards the evidence of Mr Beltrami, he was not involved in the crucial discussions about the case, since he was on holiday around the time of the court appearance on 12 July 2004. Furthermore, his memory relating to such dealings as he had had with the case was limited.

[64 ] The evidence of Mr Berlow was, however, different. He had been closely involved with the discussions leading up to the tendering of the plea of guilty to charge (3) on 12 July 2004. He gave evidence of full explanations having been given to the appellant concerning the legal implications of the charges in the indictment. He was quite adamant that a plea of guilty would never be tendered without an accused's clear instructions. He explained how the various scenarios might emerge in this case, depending on whether the appellant went to trial, or pled guilty on some agreed basis. Plainly the risk of conviction of attempted murder was an important factor in the discussions. He described the consultations on 7 and 8 July 2004 as "fraught", but instructions were obtained regarding a plea to a lesser form of charge (3). He said that he could not accept that the appellant could have thought that charge (3) as a whole was to be dropped. On the contrary, Mr Berlow testified that the appellant had given instructions to tender a plea of guilty to charge (3), as modified. He agreed that initially, the appellant's position had been that what had happened to Mr Weir had been an accident. However, in the discussion on 7 July 2004 he stated that Mr Quinn had obtained further information about damaging evidence that might have been led against the appellant, if he were to go to trial. That evidence had been explained to the appellant. It related to the shouting to the appellant not to move the car because someone was underneath it. It was on the basis of this and the other evidence that advice had been given to plead guilty as indicated.

[65 ] Perhaps Mr Quinn was the source of the most cogent evidence regarding the discussions which led up to the tendering of the modified plea of guilty to charge (3). We found him to be an impressive witness. He had many years of experience as a solicitor advocate and previously as a solicitor in criminal matters. He indicated how he had explained to the appellant his various options in the face of the evidential difficulties which existed for him. On 7 July 2004 he had asked the appellant to consider the various options overnight so that the matter could be discussed again on 8 July 2004. On 8 July 2004 Mr Quinn had recapitulated the options available to the appellant and had advised him that, at a trial, there was a strong possibility that there could be a conviction of attempted murder. It was against that background that the appellant had been advised to explore the possibility of negotiating a plea to a lesser charge. He specifically testified that he had explained to the appellant the nature of assault and assault to severe injury. The outcome of the discussion was that the appellant had instructed Mr Quinn to approach the Crown. Mr Quinn stated that the appellant's position was that he would plead guilty to anything short of attempted murder. He also said that, in his opinion, the appellant had had no difficulty in understanding what he had said to him. On the occasion of the appearance in court on 12 July 2004, Mr Quinn testified that he had confirmed his instructions with the appellant. We have no difficulty in accepting the evidence given by Mr Quinn on these matters.

[66 ] Having regard to the evidence of Edward Pickett, Mr Berlow and Mr Quinn, we find it quite impossible to hold that it has been proved on the basis of the appellant's evidence that his plea of guilty to charge (3), as modified, was tendered "under some real error or misconception or in circumstances which were clearly prejudicial to the appellant", to quote the words used in Healy v HMA at page 118. We are satisfied from the evidence of the appellant's solicitor, Mr Berlow, and his solicitor advocate, Mr Quinn, that he was given full advice relating to the implications of the indictment which he faced, particularly of charge (3), and concerning the various options open to him. It appears to us on the basis of that evidence that the appellant was advised concerning the risk of conviction of attempted murder, if he went to trial. In the face of that risk, he was advised that it would be in his best interests that, if possible, he should plead guilty to a limited form of charge (3), with the reference to attempted murder and having previously evinced malice and ill-will being deleted. That was a course which, in the event, the Crown were prepared to accept. Whatever private thoughts the appellant may have had about his situation, we are satisfied that he was under no misapprehension concerning the nature of the plea to be tendered on his behalf. We consider that the appellant's conduct in court on 12 July 2004, to which we have already referred, is consistent with our conclusion in this regard.

[67 ] In all of these circumstances and having regard to the criterion which must be applied in a case of this kind, which we have enunciated, we are quite unable to hold that a miscarriage of justice has occurred. In these circumstances the appeal against conviction is refused. The appeal against sentence will require to be heard on a date to be fixed.