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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Mccarthy v. Her Majesty's Advocate [2008] ScotHC HCJAC_56 (02 October 2008)
URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_56.html
Cite as: [2008] HCJAC 56, 2008 SCCR 902, 2008 SLT 1038, 2008 SCL 1325, 2008 GWD 32-480, [2008] ScotHC HCJAC_56
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APPEAL
COURT, HIGH COURT OF JUSTICIARY |
|
|
Lord Wheatley Lord Reed Lord Carloway |
[2008]HCJAC 56
Appeal No: XC320/04
OPINION OF THE COURT delivered by LORD CARLOWAY in the NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by JOHN JOSEPH McCARTHY Appellant against HER MAJESTY'S ADVOCATE Respondent ญญญญญญญญญญญญญญญญญ________________ ญญญญญญญญญญญญญญญญญ |
Act : Shead, M.C. MacKenzie (part), Party (part); Robertson & Ross
(
Alt : DAC Young AD; Crown Agent
1.
Procedure
On
The appellant's complaints centre
upon his representation both at the trial and in the appeal process. At the outset it has to be observed that the
proceedings at first instance and on appeal are remarkable for the quite extraordinary
amount of delay occurring in them as a result of repeated, successful
applications by the appellant's representatives either to adjourn diets or to
avoid fixing substantive diets. Reading
the Minutes recording the procedure is a depressing task and their content is a
sad reflection upon the operation of the rules of procedure.
The appellant was originally
indicted, along with a co-accused, to a trial diet as early as February, 2003;
over five years ago. The trial diet was
postponed on defence motions on three occasions. When the indictment eventually called for
trial in October, the co-accused failed to appear and the diet was deserted by
the Crown. It was re-indicted almost
immediately and a new trial diet was fixed for 12 December 2003. At that time, the appellant was represented
by a skilled and experienced counsel (Findlay QC). On the morning of the diet,
his counsel withdrew from acting. His
agents also withdrew; suggesting that there was a difference in view between
the appellant and his legal team in relation to the manner in which the defence
was to be presented. The diet was adjourned
and new agents were instructed. These
agents in turn engaged another skilled and experienced counsel (
under section 275 of the Criminal Procedure (
By 23 February it appeared that
yet another skilled and experienced counsel (
Once the trial had been completed,
the appellant was afforded three extensions of time within which to lodge
grounds of appeal. The grounds were
eventually lodged in October (over six months after conviction). They were some fourteen in number, all
handwritten by the appellant himself. They
included so called "
Notwithstanding the limited nature of
the grounds of appeal allowed to proceed as a result of the decisions at the
sift stage, the appellant was permitted over a year, not to prepare his appeal,
but in which to consider the prospect of lodging additional grounds of appeal. This came about as a consequence of some five Procedural
Hearings in terms of paragraph 15.5A of the Act of Adjournal (Criminal
Procedure Rules) 1996 (SI No 513). The
first of these was on
The case was withdrawn from a
Procedural Hearing on18 November as "it is intended that consideration be
given to the formulation of additional grounds of appeal". Twenty one days was allowed within which any
additional grounds might be lodged. That
was not done. The case was withdrawn
from the next Procedural Hearing, scheduled for
What were recorded as substitute
"Grounds of Appeal" were lodged, but this prompted the withdrawal of the case
from a Procedural Hearing on 11 April and a remit to another Procedural
Hearing with a view to considering whether a further report from the trial
judge would be needed "if these grounds of appeal are allowed to be
received". In the Form 15.5A-B which
preceded that Hearing, it was said that "disclosure is to be sought from the
Crown".
When the case eventually called on
Reports were ordered from the trial
judge (Lord Emslie) and the judge who had appointed the solicitor (Lord Menzies);
with the former being asked to advise on any necessary transcriptions of
evidence. The supplementary grounds were
not subjected to any sift process. Rather,
what followed were a further fifteen Procedural Hearings. At the risk of inducing despair, it merits
recording what is minuted to have happened at these. The first was scheduled for
The case called at a Procedural
Hearing on
The case then took another turn. It was withdrawn from the next Procedural
Hearing on 21 June because, by then, the appellant had applied for access
to video tapes, which had recorded the police searches of the appellant's house,
during which the drugs had been found (infra).
The case called to determine that
application on 7 August, when counsel submitted that the tape he sought was a
"second" tape of the search, which had not been a production at the trial. He stated that its existence might result in
amendment to the grounds of appeal. The Crown
denied that they had been asked about a "second" tape and the case was
continued to allow further enquiries into this matter. At the next calling on 21 September, it
was reported that the "tapes" had been located and the court authorised their
viewing by the appellant's advisers. The
court had planned to hold another hearing four weeks hence in order to consider
any matters arising from the tapes. However,
first, the next Procedural Hearing did not occur until 23 October. Secondly, at that diet the court was informed
that the tapes had not been viewed because of a "misunderstanding" between the
local procurator fiscal and the appellant's agents. The court directed that they should be viewed
within fourteen days and a further Hearing was appointed for 13 November. On that date the appellant moved for a
further continuation so that he could view the video tapes with his advisers
and consult further. That motion was
refused "having regard to the history of the case" and an order was made to
appoint a hearing on the merits of the appeal quam primum; hence the eventual hearing on 26 and 27 August
2008.
The reason for recording the detail
of these events is in order to identify the number of Procedural Hearings at
which it was repeatedly said that the case was not ready to proceed to a full
hearing for a variety of reasons, some being apparently the same as had been
tabled months before. Most, if not all,
of the reasons given were unrelated to the grounds of appeal for which leave
had been given by the sifting judges. Many involved requests for additional time to
explore potential grounds of appeal which, as will be seen, had already been
refused by the sifting judges. It may be
commented that, if the system of appeals in terms of the current legislation is
to operate with some degree of efficiency, then an appellate Court must focus its
attention on what the grounds of appeal, for which leave has been given,
actually are. It will ordinarily wish to
encourage the appeal to proceed with expedition to a full hearing on these
grounds and, in the absence of an application to amend the grounds, these
grounds alone. Equally, those
representing an appellant have to be trusted to apply themselves to the proper
expedition of the appeal on the grounds for which leave has been granted and to
complete any necessary preparations in advance of Procedural Hearings as
distinct from using the existence of these Hearings to request time upon which
to embark upon expeditions unrelated to the permitted grounds or to carry out
additional work which could have been performed in advance of the appointed
diet. In this case, as will also be
seen, the exercises involving the production of transcripts and of searching
for video tapes proved to be expensive distractions from what was ultimately
relevant to a proper consideration of the permitted grounds of appeal.
2.
The Grounds of Appeal and Devolution
Issues
The sole ground of appeal, which was
contained in the appellant's handwritten grounds and allowed leave, reads as
follows:
"(7)
I gave my lawyer Mr Reid about 30 questions I thought would be of help in my
case. I did not get an answer to any of
them from him. I asked him for an answer
to one of the points I asked him to look at why could he not get the charges
separated (sic). The only thing he would say was they will not
separate the charges."
But the appellant had, as already noted, tendered a number of
other grounds, for which leave to appeal had been refused. In light of the submissions made by the
appellant at the hearing and the reasons given for several of the continuations
of Procedural Hearings, some of these warrant a summary. Ground (1) raised a
question about whether the appellant could have defended himself if he had elected
not to cross-examine the complainers. Ground
(4) related to the evidence of LG and the refusal of the appellant's
solicitor-advocate to cross examine this witness by using the video of the
search which, the appellant maintained, showed her admitting that a small
amount of cocaine found in the appellant's pocket was hers. Ground (5) concerned an alleged failure of the
appellant's legal team to pursue a Commission and Diligence to recover social
work (and/or perhaps medical) records relating to LG which, the appellant claimed,
would have proved that LG had undergone a miscarriage or an abortion before the
alleged incident involving her. This, it
was said, would have discredited medical "evidence" that LG had claimed to be a
virgin at the time of the incident. Ground (6) complained that the appellant's
solicitor-advocate failed to advise the jury about LG being tested for drugs in
hospital soon after the incident and there being no cocaine found in her system
despite her testimony that the appellant had given her that drug. Ground (8) was that the appellant's
solicitor-advocate had failed to remind the jury that there was no scientific
or fingerprint evidence against the appellant connecting him to the drugs. Ground (9) alleged that one complainer (PMcC)
had had an affair with a care worker. Ground
(10) related to the video tapes of the search, specified as labels 50 and
51. Ground (11) presented a reason for
the complainers in the charges, upon which the appellant was found guilty of
underage sex, making up the allegations, namely non payment of money for acting
as drugs couriers for the appellant's girlfriend (AMcC). The final ground (14) reverted to ground (1).
It was
perhaps the nature of the final ground that prompted the second sift judges to
allow a ground of appeal not raised by the appellant, viz.:
"the
competency of the order...under s 288D of the 1995 Act appointing Mr Reid to
defend the appellant on an indictment that included charges not falling under s
288C".
All that need be said about that ground is that it was not
argued and therefore no opinion upon its merits is expressed. This ostensibly left ground (7), as a sole
ground of appeal. This appears to be an
"
"a)
The presiding judge erred in granting the order under s 288D of the 1995 Act.
It is submitted that in the circumstances that then pertained the stage had not
been reached when it was appropriate to make the order. An order of the kind made was an interference
with the appellant's rights under Article 6(3)(c) of the Convention. In the present case that interference was not
justified. The effect of the order was
that the appellant was denied the fair trial to which he was entitled.
Separatim. The order pronounced was unlawful. Reference is made to section 6 of the Human
Rights Act 1988.
Separatim. Seeking the conviction of the appellant when
he was not represented by someone of his own choosing was an act of the Lord
Advocate which was incompatible with the appellant's rights under Articles
6(3)(c) and 6(1) of the Convention. Accordingly
it was ultra vires. Reference is made to
section 57(2) of the Scotland Act 1998.
Separatim. The provisions of
sections 288C and 228D (sic) were
introduced by the Sexual Offences (Procedure and Evidence)(
By virtue of section 29(1) of the
Scotland Act 1998 an Act of the Scottish Parliament is not law in so far as any
provision of the Act is outwith the legislative competence of the Parliament.
A provision is outside that
competence if it is incompatible with any of the Convention rights. The relevant provisions are incompatible with
the rights under Articles 6(3)(c) and Article 6(1) of the Convention.
Separatim. In the circumstances justice was neither done
not (sic) was it seen to be done".
It is reasonably apparent that much of this new ground
involved at least one "devolution issue", yet no Notice of such an issue was
lodged at the time or for some considerable time thereafter.
By letter
dated
"4. Reference is made to the grounds
of appeal and the contentions contained therein.
5 Separatim. For the Lord Advocate to seek to support the convictions
would be for her to act in a way which would be incompatible with the Minuter's
rights under Article 6(1) of the Convention and accordingly ultra vires".
On the day
before the hearing, another Minute (Minute No 2) was tendered to Justiciary
Office purporting to raise another devolution issue. This document is in very strange terms. It refers to an obligation resting on the
respondent to disclose, prior to trial, information which might tend to
exculpate the appellant or undermine the case against him. It then specifies that, in relation to the
appellant, the respondent had an obligation to disclose:
"a. all witness statements (except
in so far as already disclosed)
b. any information which may cast
doubt on the credibility or reliability of the Crown witnesses including
records of any previous convictions or outstanding charges;
c. the results of all forensic
investigations undertaken
d. any documents relating to the
systems operated at the time of the investigations and the trial by the police
and the prosecution for ensuring that records were kept of all material
gathered in the course of the inquiry into the death of the deceased;
e. all records kept in connection
with that inquiry detailing the material ingathered".
Before
dealing with the merits of the appellant's attempts to have these Minutes received
by the court, it is worth pausing to consider the rules which govern that
receipt. First, in terms of rule
40.2.(1), such a devolution issue must be raised within seven days of the
service of the indictment (rather than within seven days of a substantive
appeal hearing) unless, in terms of rule 40.5.(1) cause is shown
otherwise. Secondly, in terms of rule
40.6, the Minute raising the issue must "specify the facts and circumstances
and contentions of law on the basis of which it is alleged that a devolution
issue arises in the proceedings in sufficient detail to enable to court to
determine...whether a devolution issue arises in the proceedings".
In an
appeal, at least unless there is a complaint about the appeal process, a
devolution issue can only arise in the context of the grounds of appeal for
which leave to appeal has been granted. These
grounds, including any additional grounds identified by the court at the
sifting stage, define the scope of the appeal. If the issue raised in the Minute cannot
properly be related to the grounds, no devolution minute can arise "in the
proceedings". The terms of the
appellant's Minute (No 2), which refer to issues of disclosure, are not related
in any way to the grounds of appeal, which do not complain of any lack of
disclosure. The latter is not at all
surprising. It is clear from the trial
papers that witness statements were disclosed, as they were used in an attempt
to discredit the complainers on the sexual offences charged. The witnesses, who testified to the facts in
the charges of which the appellant was convicted, were primarily police
officers or persons under sixteen. It
seems likely that the extent of their criminal records would be limited. Other witnesses were known prostitutes and
this was brought out in evidence. The
defence position was that there was no forensic evidence, hence presumably the
lack of any disclosed. The final two
heads of the Minute relate to inquiries into someone's death. There is no indication that anyone connected
with this case has died. Even allowing
for the occasional slip caused by "cut and paste" toolbars, the presence of
these paragraphs in a document signed and presented to the court is far from satisfactory.
It is thus plain that no devolution
issue arises on the ground of non disclosure and that, in any event, the Minute
is far too late to merit consideration.
Its receipt was accordingly refused.
The
appellant's Minute (No 1) poses greater problems. It is clearly very late and no acceptable
explanation for this was forthcoming. Indeed,
the late lodging of both Minutes caused a delay in the hearing of the substantive
appeal for at least two hours; a situation which is also far from satisfactory.
This Minute purported to relate, albeit
in the most general of terms, to the "grounds of appeal". As already observed, supplementary ground "1 a)" appeared to give notice of a ground of
appeal which raised at least one devolution issue, namely the compatibility of
the terms of section 288D with Article 6. On that basis, the court was inclined, in
principle, to allow a devolution issue to be raised were a Minute, which conformed
at least broadly with the rule requiring it to specify the facts and
circumstances and contentions of law involved, to be lodged. The existing Minute did not do that. The court spent some time attempting, with no
success, to tease out of the appellant's counsel the nature and extent of the
devolution issues which he intended to raise. It adjourned for well over an hour to allow an
amended Minute to be tendered for consideration.
When the Minute so tendered is
scrutinised, it becomes apparent that it too fails to comply with the rule. It lacks specification and clarity of
precisely which ground of appeal it relates to and how it does so. It reads:
"Reference
is made to the grounds of appeal and the contentions contained therein. In
particular reference is made to the matters specified in the supplementary
grounds of appeal.
There
are two principal issues raised. The
first relates to whether the Scottish Parliament acted within its competence. The second is whether in any event the Lord
Advocate acted in a way which was ultra vires.
In
order to decide whether the Lord Advocate's act, at the time of the trial in
seeking convictions, was ultra vires consideration should be given to whether
other steps should have been taken to avoid the apparent necessity of making an
order under 288D of the 1995 Act (as amended).
If the focus requires to be on the right to a fair trial (as opposed to
the rights guaranteed by Article 6(3)(c) then it follows that a consideration
of all relevant safeguards is appropriate. Among those procedural safeguards
consideration could have been given to separating the charges. On the face of it that would have removed any
need to make the order. It appears no
steps were taken at the instance of the Lord Advocate to seek such a
separation".
The Court was concerned to understand to just which grounds
of appeal the proposed devolution issue related. It was readily understandable that the
compatibility point within supplementary ground 1 a) might raise such an issue,
but it was not possible to grasp how ground 1 b) could do so. The Court struggled to grasp the basis upon
which the Lord Advocate might have sought a separation of charges, when she
could, in any event, achieve such an object without any authority of the
court. It was also not easy to follow
why a separation of charges would have avoided the need to appoint a solicitor,
given that the sexual offences charges would still have remained extant. Counsel declined the court's repeated
invitations to make the appellant's position clear. Ultimately, he appeared to be submitting that
any perceived fault, which might be revealed during his submissions in the
appeal, occurring at any stage of the trial proceedings (including the
potential unreasonableness of the jury's verdicts) might give rise to a
devolution issue.
In this unfortunate state of affairs,
in the absence of any greater specification of, and clarity in, the nature and
extent of the issues to be raised and the lateness of the Minute, the court is
constrained to refuse to allow either of these two minutes to be
received. Nevertheless, given the past
procedure in the case, the court proceeded to hear argument covering all live
grounds of appeal.
3. Grounds of Appeal
(a) COMPATIBILITY
OF SUB-SECTIONS 288C and 288D WITH ARTICLE 6 (Supplementary Ground 1 a))
Article 6.1 provides
that everyone is entitled to a "fair...hearing" in the determination of a
criminal charge against him. Article 6.3 states that:
"Everyone
charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or
through legal assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the interests of justice
so require".
Following upon the raising of certain concerns about accused persons
cross-examining their alleged victims in person, the Scottish Parliament
enacted the Sexual Offences (Procedure and Evidence) (
"288C. (1) An accused charged with a sexual offence...is
prohibited from conducting
...
(b) his defence in person at the
trial...
...
288D.
...
(2) Where the court ascertains that -
(a)
the accused has not engaged a solicitor for the purposes of
...
(ii) his defence at the trial...; or
(b)
having engaged a solicitor for those purposes, the accused has dismissed him;
or
(c)
the accused's solicitor has withdrawn,
then,
where the court is not satisfied that the accused intends to engage a solicitor
or, as the case may be, another solicitor for those purposes, it shall, at its
own hand, appoint a solicitor for those purposes.
(3) A solicitor so appointed is not
susceptible to dismissal by the accused or obliged to comply with any
instruction by the accused to dismiss counsel.
(4) Subject to subsection (3) above,
it is the duty of a solicitor so appointed -
(a) to ascertain and act
upon the instructions of the accused...".
The problem in this case arose in
this way. As outlined above, the
appellant had had the benefit of advice from three of the most skilled and
experienced counsel and agents in practice by the time the last of these
withdrew from acting, when the case called on
"LORD MENZIES: ...You still don't as
of now have a solicitor and counsel and it seems to me from what you have said
you are going to have difficulties appointing a solicitor. You have had difficulties finding one that
will act on your behalf, is that correct?
THE ACCUSED MCCARTHY: Yes, your
Honour.
LORD MENZIES: And the Scottish
Parliament has legislated that in a trial of this kind you cannot conduct your
own defence. You have to have a
solicitor and counsel acting on your behalf.
Do you understand that?
THE ACCUSED MCCARTHY: Can I conduct
my defence if I don't cross-examine the witnesses?
LORD MENZIES: No. My...
THE ACCUSED MCCARTHY: Well, I must have been given the
wrong advice because I was told by a solicitor...you can do your own defence if
you don't cross examine the accusers. I
don't know if I am capable of doing it like that. I would really like to be represented by a
solicitor and a QC.
...
LORD MENZIES: ...It seems to me that the time has come
for the Court to appoint a solicitor and it also seems to me that I have no
discretion in the matter now, given the history that I have been given".
However, a solicitor was not appointed at that stage. Rather, the matter was adjourned for some
time before being recalled later in the day.
At that stage, the appellant was represented by counsel. That counsel said:
"...I
appear at this stage on behalf of the panel John Joseph McCarthy...I understand
the case calls this afternoon to allow your Lordship to consider invoking the
powers in terms of Section 288D which allow the Court to appoint a solicitor to
act on behalf of the accused. A
solicitor has been identified who is in a position to assist and I invite my
Lord to invoke that Section....The solicitor is Mr Reid, my Lord, of the
firm of Fleming and Reid".
It is clear that Mr Reid had, by this time, met with the
appellant. Counsel advised the Court
that Mr Reid wished to instruct counsel for the trial and needed some time
to do that. The following exchange then
occurred:
"LORD MENZIES: Mr McCarthy, you have
had a chance to speak to Mr Reid this morning, is that right?
THE ACCUSED MCCARTHY: Yes.
LORD MENZIES: And you will have
heard that what is being proposed is that the Court should appoint Mr Reid
as solicitor to act on your behalf in this matter, I am minded to do that
unless there is something that you have to say which would persuade me
otherwise.
THE ACCUSED MCCARTHY: There is not
much I can really say, your Honour, because I have had a great difficulty in
getting a lawyer to represent us. I'm
really, I don't think it is right a solicitor is being forced on us but saying
that, I probably won't be able to get one and I'm going to have to...On the point
of Mr Reid, I spoke to him today, I will go along with him acting for us,
there is nothing much I can do about it. Maybe he will turn out to be better than any
of the rest of them will, I don't know".
With regard to his representation, the appellant said that he
had not sacked his previous representatives. Rather, they had all "left".
In that state of affairs, the court
appointed Mr Reid in terms of section 288D on the afternoon of 26 February. Mr Reid instructed Mr Keegan to
conduct the defence at the trial as the leading solicitor-advocate of the two
instructed. A further section 275
application was made to enable the appellant to cross examine PMcC and LG to
the effect, amongst other things, that they were engaged in the transportation
of drugs and were "street wise". The
trial commenced on 9 March without further complaint. The appellant was represented throughout by Mr Keegan,
as instructed by Mr Reid.
At the
appeal hearing it was submitted by counsel for the appellant that the provisions
of sections 288C and 288D were incompatible with Article 6. Reference was made, at some length, to the
terms of a Scottish Executive pre legislation consultation document entitled
"Redressing the Balance : Cross
Examination in Rape and Sexual Offence Trials". This document set out a number of options for
reform of the law, some of which were said to be less "invasive" of Article 6
than the option ultimately adopted by Parliament. It was asserted, under reference to the
document, that the reforms had been prompted first by cases from
In terms of
sub-section 101(2) of the Scotland Act 1998 (c 46), in determining whether
a legislative provision is compatible with the Convention, that provision has
to be read as narrowly as is required for it to be within the competence of
Parliament (Flynn v HM Advocate 2004 JC (PC) 1; 2004 SCCR 281,
Lord Hope of Craighead at paras 37-38, Lord Rodger of Earlsferry at para 71; HM Advocate v DS 2007 JC (PC) 1; 2007 SCCR 222, Lord Hope at para 21). In relation
to the content of the rights afforded by Article 6, it was accepted that
the right to legal assistance of a person's own choosing was a qualified one
and did not carry with it a right to the services of a particular lawyer,
irrespective of that lawyer's availability or willingness to act (Vickers v Buchanan 2002 SCCR 637). However,
Article 6.3.(c) involved three distinct rights. The first was the right to defend oneself, the
second the right to legal representation and the third the right to funding of
that representation (Pakelli v Germany (1983) 6 EHRR 1; Series A No
64, para 31). This was so
notwithstanding Croissant v
This line of
argument was not further developed. In a somewhat ironic twist, at this point
in the submissions, counsel sought leave to withdraw from acting, presumably
because he was not prepared (for good reason (infra)) to present the appeal as the appellant wished. The appellant conducted the remainder of his
appeal in person, although, oddly (given what the appellant sought to argue
thereafter), his agents remained acting for him.
The
Advocate Depute submitted that, although the right to a fair trial is an
absolute one, the subsidiary rights in Article 6.3(c) are not. It was not incompatible with his Convention
rights that an accused person is prevented from representing himself (Croissant v
An analysis of the issue of whether sections
288C and 288D are incompatible with a Convention right involves primarily an
examination of the wording of the provisions themselves to see what their
effect is and whether that effect cuts across that right (HM Advocate v DS (supra) Lord Rodger at para. 79). An exploration of the terms of a consultation
document, which preceded the debates in Parliament, is of little, if any,
assistance. The rights which the provisions
are said to contravene are those in Article 6.3.(c) to "defend himself in
person or through legal assistance of his own choosing". The first question is whether a provision
which prohibits an accused from defending himself in person is a contravention
of article 6.3.(c). The answer to
that is in the negative. This was made
clear by the European Court of Human Rights in Croissant v Germany (supra) when examining Article 140
of the German Code of Criminal Procedure which provided that "(1) The assistance
of a defence counsel is necessary where: 1. the trial at first instance is
conducted in the Court of Appeal or the Regional Court; ...". This requirement, effectively to be
represented by a lawyer, which the Court recognised found parallels in the legislation
of other Contracting States, "cannot...be deemed incompatible with the
Convention" (para 27). That would seem
to be an end of this issue. The decision
in Croissant v
The second
issue is whether the statutory provisions contravene the right of an accused
person to have legal assistance of his own choosing. The answer to that is also firmly in the
negative. The provisions do not in any
way impede an accused person from selecting his legal representatives from
those available and willing to act for him. It is only where the accused person has not
done so, and the court is "not satisfied that the accused intends to engage a
solicitor" that it can appoint one. Even
then, the Court's powers are limited to appointing a solicitor; leaving it to
that solicitor to select an appropriate independent counsel or
solicitor-advocate to present the case in court. That is what was done in the appellant's case.
The appeal on the basis of compatibility
must therefore fail.
In any event, several further matters
deserve mention. First, despite the
nature of the argument presented on the right to defend oneself, the transcript
of the proceedings before Lord Menzies makes it clear that the appellant
did not want to defend himself. He
wanted to be represented by a "solicitor and a QC". Secondly, the appellant did initially
(presumably) select a solicitor of his choice, who in turn instructed counsel. The court permitted him to instruct a new
solicitor on at least two occasions after that. It is clear to the court that he parted
company with these representatives because he wanted his case presented in a
way which was not permissible as a matter of law or ethics or both; hence the
withdrawal of all these representatives. It is difficult to see how, in the appellant's
case, it could be said that Article 6.3.(c) could be said to be contravened in
these circumstances. Thirdly, the
appointment of the solicitor by Lord Menzies was at the appellant's own
instance, even if he was not entirely happy about it. Fourthly, the choice of Mr Reid was not
that of the Court. It was that of the
appellant. Finally, given that the
appellant was represented by a skilled and competent solicitor-advocate,
selected not by the Court but by (presumably) Mr Reid, it is difficult to
see how a miscarriage of justice could have occurred simply as a result of Mr Reid's
appointment.
(b) SEPARATION OF CHARGES (original Ground 7)
The
appellant, in person, submitted that the charges ought to have been separated. The sole reason given for this was that it
would have enabled him to defend himself on the drugs charges. The Advocate Depute's response to this was
that the Court would not have separated the sexual offences charges from the
drugs charges given the inter-relationship of the evidence in both groups. It would not have been possible to lead
evidence about what were libels of rape on the indictment without leading
evidence of the supply of drugs to the various complainers. Furthermore, the defence proposed to raise
the issue of drug dealing by some of the complainers themselves. The evidence anticipated and led was that, in
respect of charge (1), the complainer PG said that she had gone to the
appellant's flat with AG in order to get drugs and had been given heroin by the
appellant on the night before and the morning of the alleged rape. On charge (2), the complainer NMcC was again saying
that she had gone to the appellant's flat to obtain drugs, when the rape took
place. The complainer (PMcC) in charges
(3) and (5), was the sister of the appellant's co-accused (AMcC). She maintained that after the sexual episode
in charge (3), her sister had been given drugs by the appellant in exchange for
money given by the appellant to the complainer for participation in that
episode. She had returned to the flat in
relation to charge (5) because her sister was pleading with her to have sexual
relations with the appellant so that she (the sister) could be supplied with
drugs by him. On charge (4) the
circumstances were similar, with the complainer LG going with the co-accused
who was to be given drugs were she able to persuade the complainer to have sex
with the appellant. The appellant was
said to have made up lines of cocaine and to have given the co-accused a bag of
heroin.
There was no
motion for separation of charges. That
being so, in order to succeed on this ground, the appellant would have to
persuade the court that a miscarriage of justice occurred as a result of his
legal representative's failure to move for such a separation. Leaving aside the fact that any such motion
ought to have been made well in advance of the trial diet, it is difficult to
see how such a failure could meet the familiar test for a miscarriage of
justice in defective representation cases (Grant
v HM Advocate 2006 JC 205; SCCR
365, Lord Justice-Clerk (Gill) at para [21]). Application for separation of charges is
primarily a matter of defence tactics or strategy and the failure or absence of
such an application does not prevent an accused person's defence being put
before a jury, thus ensuring a fair trial. But in any event, it is clear that no such
motion could have succeeded even if it had been made, and made timeously. Such a motion would only have been granted if
the appellant could have demonstrated that trying the charges together would
have created the risk of material prejudice to him. It was not argued that any such prejudice
could have occurred, the only reason advanced for separation being that he
could have defended himself in a separate trial for the drugs offences (even
although, as narrated above, he said in advance of the trial that he did not
want to defend himself). There was a
clear inter-relationship in time and place between the drugs and sexual
offences and an intermingling of the evidence of drug taking and supplying with
the sexual offences themselves. In such
circumstances, any motion for a separation would have been doomed to failure.
(c) THE REASONABLENESS OF THE
VERDICTS ON THE SEX OFFENCES (Supplementary Ground 1 b))
As already
noted, there is a startling lack of specification in this ground. It makes a general reference to pages 3 and 4
of the report from the trial judge. This
may be intended to incorporate the following passage from the report into the
ground:
"The evidence led against the
appellant on the alleged sexual offences was contradictory and unimpressive. The relevant complainers all gave graphic
accounts of being raped in the appellant's flat after going there to obtain
drugs for themselves or for an accompanying third party. However, PG, the complainer in Charge 1, was
directly contradicted by her friend AG, who (in a contemporaneous police statement)
described consensual sex taking place on more than one occasion in return for
the appellant's provision of food, drink, drugs and overnight
accommodation. Both PG and AG were
working as prostitutes at that time. The
young complainers in the charges 3-5 inclusive were similarly contradicted by
the second accused, who was present on each occasion and (in an earlier police
interview which was not evidence against the appellant) described consensual
sex in return for money (up to ฃ100) and drugs.
In addition, it transpired that these complainers had in the past given
equally graphic accounts of sex with a 15 year old boy, of being raped by a 30
year old man after meeting him in a club, and of both being tied up and raped
at the same time after going to the appellant's flat together. It came as no real surprise when the jury
rejected all of the rape charges against both accused, but I believe that it
was open to them to go on, as they did, to find the appellant guilty of the
alternative offences under section 5(3) of the 1995 Act. It is fair to say, however, that another jury
might have been left in reasonable doubt as to where the truth lay, and might
thus have acquitted the appellant on the sexual charges altogether. His own account, given forcefully in the
witness box, was that while the two younger complainers had both visited his
house, they had done so with AMcC in pursuance of drug-transporting activities
which they now refused to admit.
According to him, no sexual contact of any kind had taken place with
either of these complainers, and their evidence in that regard was totally
untrue".
If the ground of appeal is intended to incorporate this
passage then it appears self destructive. As the trial judge observes (see also his
Supplementary Report paras 5-7), the jury were entitled to, and did, reject the
complainers' evidence that they had been raped. However, the jury were equally entitled to
accept the evidence of the two complainers in charges
(d) OTHER GROUNDS
Having
parted with his counsel, the appellant made a number of other succinct and at
least readily intelligible submissions. The
first of these related to the testimony of a police officer that, when the drugs
had been found behind the appellant's fireplace, the appellant had said "Fair
cop, mate. There's nothing else there"
or words of a similar nature. According
to the appellant's submission he had not said this and a study of the video
tapes (both of which had been available as labels at the trial) would have
demonstrated this. He complained that
his solicitor-advocate had not played or replayed the tapes sufficiently to
discredit the police officer's testimony. The appellant produced a letter from someone,
whom he said was an expert. This expert
had studied the tapes and, according to the appellant, had confirmed that the
words were not said. However, the letter
produced did not say that. Rather, it
said that the words attributed to the appellant could not be made out upon
listening to the tape.
The
fundamental problem with the appellant's argument is that it is not a ground of
appeal at all, far less one for which leave to appeal has been granted. In that regard it is readily understandable
why counsel was not prepared to advance this ground and others (infra) at the appeal hearing. In any event, the matter was covered by the
appellant in his evidence before the jury.
The appellant's solicitor asked him whether he had made the remark
attributed to him. He replied
(transcript p 766):
"No.
I never made that. He (the police
officer) also said if you played the video long enough you would hear it. All I can say is play the video all day and
you will never hear me saying that because it was never said".
The solicitor-advocate continued: "your lips were moving at
that point in time. There was something
going on between you. Can you say what
you were saying?" The appellant
responded by saying that he was asking the police how the drugs had got behind
his fireplace and whether they had put them there. When it came to his address to the jury, the
solicitor-advocate said that the jury should ignore the attributed remark
because it was not heard on the video tape (transcript p 921). In these circumstances, the solicitor-advocate
did all that was reasonable to deal with this evidence.
The
appellant next raised an issue about his legal representatives having failed to
pursue a specification of documents to recover the social work (or medical)
records of LG. These, he submitted,
would have proved her to have been a fantasist and that she had had a
miscarriage before the offence. He also
complained about the lack of effort put into the recovery of evidence that PMcC
had had sexual relations with a care worker.
In addition, he said that hospital records would have revealed that LG
did not have cocaine in her system after the alleged offence, despite having
said that the appellant had given her this drug. He protested that his legal team had failed to
bring out the fact that a witness, LMcF, had admitted on tape during the
search, that certain small amounts of cocaine found in the appellant's trousers
were hers. The appellant complained that
his legal team at the trial had told him that he could not defend himself
(which was correct) but had later said that he could have done so if he had refrained
from cross examining the complainers. The
answer to all of these complaints is that they were all raised as grounds of
appeal by the appellant (grounds (1), (3) (4), (5) (8) and (14)) but leave to
present these grounds was refused by the sifting judges. In these circumstances, it is not competent to
argue these grounds (1995 Act (supra)
sub-section 107(8)). In any event,
having considered these matters, none of the grounds appear to be of such
substance as to indicate that his legal representatives had failed in such a
manner that his defence was not presented at the trial, thus resulting in a miscarriage
of justice (Grant v HM Advocate (supra)). Rather, his
representatives appear to have acted in a professional manner and achieved a
good deal of success before the jury, especially in relation to their
undermining of the credibility and reliability of the lay witnesses, notably
the complainers.
(e) SENTENCE
The core of
the appellant's complaint on sentence was the making of the return order under
section 16 of the Prisoners and Criminal Proceedings (
The
appellant did not argue that the sentences for the offences were inappropriate
or excessive. Rather, he accepted that,
in light of his previous convictions, the sentences could be described as
lenient. However, the appellant did
mention that during the course of 2007, a social worker had told him that in his
records he was referred to as being a paranoid schizophrenic. He said that this must be a mistake and that
he had never been so diagnosed. He
wondered whether this error had been in the Social Work Report presented to the
sentencing judge. He was assured by the
court that it had not been.
The appeal must
be refused.