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Cite as: 2009 SLT 371, [2009] HCJAC 19, [2009] ScotHC HCJAC_19, 2009 GWD 9-147, 2009 SCL 578, 2009 SCCR 350

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Nimmo Smith

[2007] HCJAC 19

Appeal No. XC23/03

OPINION OF THE LORD JUSTICE CLERK

In the Appeal by

ALEXANDER WOODSIDE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant: Shead, Richardson; Culley & McAlpine, Perth

For the Crown: Stewart QC, AD; Crown Agent

18 February 2009

I Introduction

[1] In July-August 1998 the appellant was tried at Glasgow High Court on the following charge.

"On 17 January 1998 at Croftend Avenue, Croftfoot, Glasgow, near Lugar Place, you ALAN WILLIAM WOODSIDE, ALEXANDER WOODSIDE, DAVID CHARLES JUST and PATRICK STEVEN DOMINIC BOYLE did assault John Hampson ... and chase him, throw a bottle at him which struck him on the head whereby he was knocked to the ground, strike him repeatedly on the head and body with knives or similar objects and did murder him."

On the third day of the trial, the Crown accepted David Just's plea of not guilty and Patrick Boyle's plea of guilty to simple assault by striking the deceased with a bottle. On 5 August 1998 the appellant and Alan Woodside were convicted as libelled.

[2] Alan Woodside was the appellant's elder brother. Patrick Boyle was married to the appellant's sister Maureen.

[3] This appeal has had a long and convoluted history. After we heard counsel on the grounds of appeal that we are now considering, we ordered those who conducted the defence to produce certain documents relating it. We later heard evidence from the three solicitors concerned.

II The murder

The background

[4] In the late evening of Friday 16 January 1996 the appellant and Boyle went to a carry-out shop near Boyle's house. They encountered some youths who were members of a local gang. There was an exchange of incivilities and a fight broke out. The appellant had a broken bottle pushed into his face. He and Boyle escaped to Boyle's house.

[5] There was evidence from two of the youths that at the scene the appellant threatened revenge. Late that night, the appellant telephoned his mother and told her that he would "murder the bastard who slashed him."

[6] On the following evening the appellant, Alan Woodside, Just, Boyle, the appellant's cousin Stephen Richford, Michael Forbes and Jason Russell assembled in Boyle's house and armed themselves. When they heard that the gang were in the vicinity, they set off to confront them. Alan Woodside had a bayonet, the appellant had a camping axe, Just had a Rambo knife and Boyle had a bottle.

The incident

[7] The incident began when Boyle threw the bottle. It struck the deceased on the head and dazed him, and he fell over. There was evidence that Alan Woodside's bayonet was visible at that stage. The group rushed forward to attack. The deceased's friends ran away, leaving him isolated. The appellant's group surrounded him. Alan Woodside then stabbed him through the heart. The appellant was close to the deceased when he was stabbed. Meanwhile, Boyle chased after the deceased's friends.

The aftermath

[8] The appellant was seen to be carrying the axe shortly after the incident. On the following day, several of those involved met at the home of the appellant's parents to discuss the incident. According to the appellant's mother, the appellant made an incriminating admission as to his part in it. I shall refer to that as "the Sunday confession." On Monday 19 January, with the help of their father, Alan Woodside, senior, the appellant and Alan Woodside fled to Coventry. They were in hiding there until 25th January 1998 when they surrendered to the police. The appellant then instructed Livingstone Brown.

[9] The appellant was detained at first in Longriggend Remand Institution (Longriggend). On the occasion of a visit by his parents and his girlfriend Kelly Ann Savage, according to his mother, he made a further incriminating admission. I shall refer to that as "the Longriggend confession."

III The preparation of the appellant's defence

The instruction of the defence team

[10] At the outset Mr Gerard Brown CBE, a senior partner of Livingstone Brown, acted as the appellant's solicitor. He visited him at Longriggend and carried out certain preliminary work on his behalf. On 17 April 1998 he took his precognition. At about that time Mr Brown, who had rights of audience in the High Court, decided that he would defend the appellant at the trial. It was then decided that Mr David McGlashan, his qualified assistant, would act as the appellant's solicitor and would instruct Mr Brown. Mr McGlashan also instructed Mr Michael McSherry, a solicitor with rights of audience who was not connected with Livingstone Brown, to assist Mr Brown. Mr McSherry is senior to Mr Brown in terms of admission as a solicitor. Both were admitted as solicitor advocates in the same year. I shall refrain from describing Mr McSherry as Mr Brown's junior for reasons that I shall explain.

[11] Since this was a murder charge, the appellant was entitled to be defended with the benefit of legal aid by senior and junior counsel. I am satisfied on the evidence, oral and documentary, that the decision that he would be defended by Mr Brown and Mr McSherry on the instructions of Mr McGlashan, rather than by counsel, was presented to him as fait accompli.

Livingstone Brown's dealings with Mrs Maureen Woodside

[12] During 1996 and 1997 Livingstone Brown acted for the appellant's mother, Maureen Woodside, in relation to allegations by her that her husband, the appellant's father, had been violent towards her. They represented her in related civil proceedings. In October 1997 they represented her when she was prosecuted in Glasgow sheriff court for fraud. That prosecution was abandoned.

[13] By 25 January 1998 Livingstone Brown no longer had any active files relating to Mrs Woodside. On 11 March 1998, however, Mrs Woodside had a meeting with Miss Amanda Hamilton, a member of their staff who had no connection with the appellant's case. She alleged that there had been further incidents involving her husband. She wished to raise an action for divorce and for a residence order. Miss Hamilton took a statement from her and had her complete the legal aid forms. Mr Brown knew nothing of this.

[14] By 13 March 1998 it had become apparent within Livingstone Brown that Mrs Woodside was the appellant's mother and that she would be a witness for the Crown at his trial. On that date Miss Hamilton arranged for her to be represented by another firm and telephoned her to advise her of the reasons for this.

The preparations for the trial

[15] The defence team understood that there were three important witnesses against the appellant; namely Michael Forbes, who would say that the appellant was in possession of the axe shortly before the incident; Stephen Richford, who would say that the appellant was in possession of it shortly after the incident; and Maureen Woodside, who would speak to the Longriggend confession. They prepared for the trial in the expectation that Alan Woodside would plead guilty to murder and that Maureen Woodside would not give evidence. Both expectations were confounded at the trial. At this stage Mr Brown had committed himself to the misguided view that, without Mrs Woodside's evidence, there would be insufficient evidence against the appellant.

[16] The trial was fixed for 21 July 1998. That date clashed with Mr Brown's holiday arrangements. On 15 July 1998 the defence team had a meeting with the appellant at Barlinnie Prison. The appellant agreed that, if the case could not be postponed, Mr McSherry could conduct the defence while Mr Brown was on holiday. On 16 July 1998 the Crown refused to agree to a request from Mr Brown that the trial should be postponed. Mr Brown then telephoned Mr James Keegan, a solicitor advocate, to enquire if he would be available "to sit in" for Mr Brown at the trial from 21 July until he returned from holiday. According to the relevant file, Mr Keegan agreed to do so. In the event, the trial was put off until later in July; but that left Mr Brown with a further diary problem, as I shall describe.

[17] On 21 July the case was called at Glasgow High Court for the attendance of the accused and counsel only. On that occasion, Mr McGlashan and Mr McSherry attended for the appellant along with Mr Robert Livingstone, solicitor advocate of Livingstone Brown, who had had no previous connection with the case.

[18] On 23 July 1998, the firm of Gordon and Smyth, solicitors, Glasgow, contacted Livingstone Brown to say that the appellant had told one of their staff that he wished to be defended by a Queen's Counsel and that he had not been advised that he was entitled to this representation. Mr McGlashan did not take this matter up with the appellant. Gordon and Smyth's intervention came to our notice only after Mr McGlashan handed over Livingstone Brown's legal aid account at a late stage in the hearing. On the same day, Mr McSherry met the appellant alone, apparently because Mr Brown was on holiday and Mr McGlashan was unavailable.

IV The trial

[19] Alan Woodside did not dispute that he struck the fatal blow. He sought a verdict of culpable homicide on the ground of diminished responsibility. The appellant's defence was that while he had set off with the others for the fatal confrontation, he had been unarmed and had taken no part in the incident.

Eye witness evidence for the Crown

Reaction to Mrs Woodside's evidence

[30] In the days following Mrs Woodside's evidence, Mr McGlashan and an investigator precognosced as many of the Sunday group as could be traced. On 29 July 1998, the defence took a supplementary precognition from the appellant. This created some doubt as to whether he had met his mother at her house on the Sunday. After Mrs Woodside gave evidence, her husband gave the defence several documents bearing on her character and credibility, including a writ for divorce by him in which he alleged that she was guilty of fraud and prostitution. Mr Brown lodged these documents but did not apply to have Mrs Woodside recalled to be examined about them.

[31] Steven Richford had not been specifically asked about his whereabouts on Sunday 18 January. After Mrs Woodside gave evidence, Mr Brown did not move to have him recalled on the point.

Mr Brown's absence from the trial

[32] On 30 July 1998 Mr Brown absented himself from the trial in order to attend a meeting in London as part of a Law Society delegation that was lobbying on some question of legal aid fees. Mr Livingstone attended the trial, although he was not in the well of the court. He took no part in the proceedings.

[33] The witnesses that day were two psychiatrists, who spoke to the question of diminished responsibility on the part of Alan Woodside; Alicen Reid, who spoke to Alan Woodside's mental state, and Dr Jeanette McFarlane, who spoke to the post mortem report.

Dr Jeanette McFarlane's evidence

[34] Dr McFarlane described the stab wound that went straight through the deceased's heart and was the cause of death. She described two injuries to the head. The first was on the back of the head and was consistent with the deceased's having suffered a blow from something that was neither very sharp nor very blunt. Dr McFarlane's view was that it was caused by a different weapon from that which produced the fatal stab. She thought that it was a weapon that had some sort of edge, but was not as sharp as a knife. An axe was certainly a possibility.

[35] Mr McSherry put to Dr McFarlane a misinterpretation of her previous evidence about the first head wound and appeared to misunderstand the evidence of a previous witness, a point on which he was taken to task by the trial judge. Dr McFarlane rejected the possibility that the wound to the head was caused by an intact bottle and gave detailed reasons. She favoured the theory that the stab wound and the head wound were caused by two different weapons, but without seeing the bayonet in question, which had not been recovered, she could not be sure.

The evidence for the defence

The appellant

[36] The appellant denied that he had spoken to his mother in the early hours of Saturday 17 January. He admitted that he was one of those who set off from Boyle's house to fight the gang who had attacked him. He denied that he had been armed; that he had been involved in the incident, that he had ever confessed to his mother that he was involved or that he had been in her house on the Sunday. He spoke in detail about his mother's dishonesty, drinking and drug-taking. He identified several defence productions that vouched her use of false names.

[37] In cross-examination, the advocate depute raised with him Mr Brown's failure to cross-examine Forbes. The appellant said that Forbes' evidence was true in part, but was untrue so far as it referred to his having had an axe. He denied Stephen Richford's evidence that he had an axe after the incident. He spoke at length of his mother's unreliability and unpredictability and her dishonest accusations against his father, his brother and himself.

Professor Busuttil

[38] Professor Busuttil, then the Regius Professor of Forensic Medicine at the University of Edinburgh, carried out a post mortem examination for the defence. He said that the injury to the back of the deceased's head could have been sustained in two major ways, one of which was by his being hit with a blunt object. A glass bottle could have this effect. He thought that it unlikely that the injury was caused by a slashing or cutting type of blow with a bayonet. He was asked if a camping axe could cause the injury. He replied

"It depends very much on the type of axe. If it is a heavy axe and it is a sharp axe and if it is used with a certain amount of force, not necessarily a major force, then the skin would be split and the bones underneath would be damaged, fractured as well. There were not fractures of the bone in this particular instance. An axe which is blunt or has a configuration, is rounded, not very, very sharp, particularly if it is a glancing type of blow, can produce a laceration, an injury of this type."

David Just

[39] Just, who had by then been acquitted, said that he did not see anyone else with a weapon before the incident and did not see anyone being struck. He threw away his own knife just before the deceased was struck and took no part in the incident. In his evidence in chief Just was not asked about the Sunday confession. He denied having had any conversation with Mrs Woodside on Saturday 17th or Sunday 18th. He said he was at the house on the Sunday and saw only Alan Woodside, senior. In cross-examination, the advocate depute did not challenge Just regarding his recollection of events on the Sunday.

The speeches

The advocate depute

[40] When the advocate depute addressed the jury he commented on Mr Brown's failure to cross-examine Forbes and on the fact that not all of the detailed allegations made by the appellant were put to him in cross-examination. In light of Mr McSherry's cross-examination of Mrs Woodside, he raised the question why Alan Woodside, senior, was not led to speak to her alleged frauds. I agree with the advocate depute who appeared at this appeal that the trial advocate depute may not have had a sound grasp of the law of concert. He seems to have thought that the jury could not convict the appellant unless there was evidence that he himself struck a blow. That error was continued in his speech in which he submitted that the appellant actually struck the deceased. He did not refer to the medical evidence about the deceased's head injuries.

Mr Brown

[41] Mr Brown addressed the jury in rather imprecise terms on the concepts of mens rea, reasonable doubt, credibility and reliability. He said, wrongly, that if they did not accept the evidence of Maureen Woodside, there was insufficient evidence in law to convict the appellant. He told them that he hoped to deal with the eye-witness evidence, the alleged confessions and the medical evidence separately in such a way that they would "be satisfied beyond reasonable doubt of the innocence of the [appellant]." These were his submissions on the issue of concert.

"I was interested when I carefully listened to the speech to you by the learned Advocate Depute that his position as far as the Crown is concerned is that Alexander Woodside was part of a group that had a common criminal purpose - and I presume with a murderous intent - and that he assaulted John Hampson. If you are not satisfied ... if you're of the view that there is no evidence to support from eyewitnesses Alexander Woodside assaulting John Hampson in my view and in my submission to you there is only one verdict and that is a verdict of acquittal (pp 825-826) ... So, was his position - that is Alexander's position - one which in your view put him as part of a group with murderous intent, and if it did, you have to determine what the murderous intent was, and you have to determine what his knowledge was of that, and his knowledge of any weapons that were going to be used" (p 828).

At an earlier stage Mr Brown had told that jury that he would face up "fairly and squarely" to any criticism levelled against him for his failure to cross-examine Forbes. When he returned to the subject, this is what he said.

"A judgment is made as to whether to cross-examine a witness or not to cross-examine a witness, but I make no excuse for not cross-examining that witness and because I do not challenge a particular piece of evidence it is not necessarily the case that it is accepted. In the same way if the defence or the Crown do not lead a witness that is a decision that is made" (pp 838-839).

V The grounds of appeal

[42] This stage of the appeal has been confined to two grounds, namely (1) that Mr Brown ought not to have represented the appellant in circumstances where he had a conflict of interest; and (2) that the defence at the trial was conducted incompetently by reason of (a) the failure to cross-examine Forbes; to cross-examine Mrs Woodside effectively; to call Alexander Woodside, Senior to speak to her dishonesty; to call the other witnesses present to deny that the appellant made the alleged Sunday confession; or to call Kelly Ann Savage to deny that he made the alleged Longriggend confession; and (b) Mr Brown's absence from part of the trial.

VI Conclusions

Conflict of interest

[43] This ground of appeal raised an outright conflict of interest point when it was tabled. At that stage there seemed to be a possibility that Mrs Woodside had been a client of Livingstone Brown when they accepted instructions from the appellant and that they had acted for both clients thereafter. The evidence at the appeal did not bear that out. Counsel for the appellant submitted that nevertheless Livingstone Brown ought not to have acted for the appellant because the firm had information adverse to Mrs Woodside's credibility that it had gained while acting for her and that the confidentiality of the information, or even the mere fact that they had acted for her, inhibited the defence from pressing home the attack on her credibility.

[44] The evidence shows that the appellant himself knew of all the matters that were material to Mrs Woodside's credibility. Therefore the issue of confidentiality does not arise, in my view. Moreover, all of the points that were worth making against Mrs Woodside were in the event put to her by Mr McSherry and put forward vigorously in the evidence of the appellant himself. In my view, there is no evidence to show that Livingston Brown's past connection with Mrs Woodside had any detrimental effect on the defence. In my opinion, this ground of appeal fails.

The Anderson ground

The scope of an Anderson appeal

[45] The advocacy of Mr Brown and Mr McSherry seems to have lacked a certain finesse. Mr Brown's speech to the jury was unstructured and ill-focused. No doubt many capable counsel and solicitor advocates would have approached the defence in a different way. But an Anderson appeal is not a performance appraisal in which the court decides whether this question or that should or should not have been put; or whether this line of evidence or that should or should not have been pursued. The appellant must demonstrate that there was a complete failure to present his defence either because his counsel or solicitor advocate disregarded his instructions or because he conducted the defence as no competent practitioner could reasonably have conducted it (McBrearty v HM Adv 2004 SCCR 337, at [34]-[36], [60]; Grant v HM Adv 2006 SCCR 365, at paras [21]-[23]; DS v HM Adv [2008] HCJAC 59). That is a narrow question of precise and limited scope.

[46] In this case we have been asked to consider decisions taken in the stress of a difficult trial and to assess them, at leisure and at length, with the benefit of hindsight. The decisions complained of relate to the evidence of witnesses who were for the most part criminals or associates of criminals. These decisions had to be made in response to a prosecution case that was little short of overwhelming.

[47] The defence was simple and straightforward. The appellant denied that he was armed, or that he took part in the attack, or that he made either of the confessions alleged by his mother. The question for us is whether that defence was put before the jury in all its essentials, it being accepted on the appellant's behalf that he himself gave evidence on all the material points.

Failure to cross-examine Forbes

[48] There is no obligation on the defence to cross-examine every witness whose evidence is incriminating. A failure to cross-examine such a witness may lead to damaging comment by the Crown and the judge; but it may be prudent not to cross-examine and to face that possibility where there is reason to fear that, if pressed, the witness may say something even worse.

[49] Experienced practitioners might, I think, have differing views on the question whether Forbes should have been cross-examined on his evidence that the appellant was armed with the axe. One of Mr Brown's stated reasons is that he did not wish to reinforce Forbes' evidence in chief on that point. I am not convinced by that; but I can see other good reasons why the decision can be justified. The defence knew that Forbes had incriminated the appellant consistently since his first interview by the police. Mr Brown had a precognition of Forbes in which he said that the attack on the Saturday night was to be revenge for the incident on the previous night and described the appellant as having waved the axe while saying that they would get them. He also put the appellant in the leading wave of the attack. None of this came out in Forbes' evidence in chief, but might well have done if he had been cross-examined on behalf of the appellant.

[50] Against that risk, there was the option of relying on the appellant's own evidence in denial of Forbes' evidence and explaining to the jury, as Mr Brown did, that failure to cross-examine Forbes should not be taken as an acceptance of his evidence. Mr Brown also had reason to hope that Just might give helpful evidence on the point, as he duly did. In these circumstances, the decision not to cross-examine Forbes was within the range of decisions that he could reasonably make in the exercise of his discretion. Forbes was cross-examined on behalf of Alan Woodside and of Boyle and was not shaken on any point. This suggests that the decision was, in the event, probably correct.

Failure to attack Maureen Woodside

[51] It cannot be suggested that there was a failure by the defence to attack the credibility and reliability of Maureen Woodside. The criticism on this point is that the attack was not pressed effectively. Mrs Woodside's character was attacked in cross-examination and in the evidence of the appellant himself. Mr McSherry put to her all the essential points that were there to be made. She admitted to obtaining goods on credit in false names. It was reasonable to conclude, as Mr McSherry apparently did, that the subject of the abandoned fraud prosecution was not worth pursuing. The other criticisms relate to the failure of the defence to make use of the documents that were given to Mr McGlashan after Mrs Woodside gave evidence by having her recalled to be questioned about them. That was a tactical decision to be made on an assessment of the effect of Mrs Woodside's evidence. It may be that other approaches could have been taken to that question, but it cannot be said that Mrs Woodside's evidence passed unchallenged. In the event, the cross-examination of Mrs Woodside was successful to the extent that it brought out her bizarre allegation that her husband was poisoning her food and drinks. In due course all of the points bearing on her credibility and reliability were rehearsed in the appellant's own evidence.

Alan Woodside, senior, not called

[52] There were several good reasons not to call Alan Woodside, senior. He had organised the flight of the appellant and his brother to Coventry. There were serious discrepancies between his signed police statement and his defence precognition. Both incriminated the appellant. In the defence precognition, he contradicted the appellant's claim that he was not present in the house on the occasion of the alleged Sunday confession. He had refused to co-operate with the defence when first precognosced about the Longriggend confession. He had said in one precognition that his recollection of events was affected by the fact that he had been drunk throughout the relevant weekend. In his police statement he had said Stephen Richford arrived at his house saying that they had murdered the deceased.

[53] It is unnecessary for me to analyse this point in minute detail. Any competent lawyer would have appreciated that to lead a witness of this calibre was a high risk option. On the other hand, if he was not called, the defence had the opportunity to point out that, since the Crown had failed to lead him, it had failed to produce possible corroboration of Maureen Woodside's evidence of the Longriggend confession. In my opinion, it was a reasonable decision not to call him.

Failure to lead evidence from the alleged witnesses to the Sunday confession

[54] If one looks generally at the matter, it is obvious that those who foregathered on the Sunday were an unlikely source of help to the defence. Alan Woodside was a co-accused and as such was not compellable; but he was unwilling to give evidence on behalf of the appellant. His legal advisers gave an unhelpful reply when that proposal was made to them before the trial.

[55] By letter dated 31 July 1998 Boyle's solicitors gave Livingstone Brown the meaningful message that if he were to give honest evidence it would possibly be damaging to the appellant's case.

[56] Kelly Ann Savage had made a police statement that incriminated the appellant. She and Alicen Reid were re-precognosced on 30 July at the High Court and their evidence was, I infer, found to be unhelpful. It was therefore reasonable not to call Kelly Ann Savage. Alicen Reid was called by the Crown. Her evidence in chief did not affect the appellant. It was a reasonable judgment, in my view, for the defence to leave it at that.

[57] Maureen Boyle was hostile to the appellant and was in a position to say that he had threatened to murder his attackers. Steven Richford had given evidence that he was not at the house on the Sunday. Robert Richford's precognition contradicted the appellant's account. Jason Russell had given evidence and could no longer be traced. Paul Russell and Julie Ann Boyd could not be traced. It was reasonable not to call any of the children who had been present.

[58] These are all specific reasons why these individual witnesses were not called. But, more generally, I doubt whether anyone in Mr Brown's position could have been at all sanguine in putting any of them into the witness box. In my view, there is nothing in this ground of criticism.

Failure to lead Kelly Ann Savage to rebut the evidence of the Longriggend confession

[59] Since Kelly Ann Savage's police statement could be put to her, that was reason enough not to call her. In any event, it appears that she was not a participant in the conversation in which the appellant was said to have confessed to his mother.

Mr Brown's absence from the trial

[60] In the event Mr Brown's absence on the day of his visit to London did not have any detrimental result. Of the four witnesses who gave evidence on that day, only two were relevant to the appellant's case. Alicen Reid did no harm to the appellant's case. Dr McFarlane's evidence was inconclusive as to the cause of the head injuries, but it was certainly not helpful to the appellant. In my view, the material defence points on the interpretation of the head injuries were put to her, however inelegantly. Even if that had not been done, it made little difference at the end of the day because the advocate depute did not found on the medical evidence in his speech.

Conclusions

[61] Counsel for the appellant has greatly assisted us in our understanding of the evidence and the issues as they developed during the trial. He has given us a detailed analysis of the defence case; but in the course of it he has strayed beyond the boundaries of the Anderson principle that we have staked out in numerous appeals. Having considered the transcripts of the trial and the voluminous evidence led in this appeal, I conclude that the criticisms on which it is based are not relevant to the Anderson test, and are in any event unfounded.

Miscarriage of justice

[62] If there had been any merit in these grounds of appeal, I would have concluded nevertheless that there was no miscarriage of justice. The case against the appellant was cogent and compelling. He was the victim of an assault with a weapon. At the scene of the assault, he vowed to avenge it. He told his mother later that evening that he would "murder the bastard who slashed him." On the following evening he was one of a party who assembled for revenge. He armed himself with an axe. He knew that the others in the party were armed. On his own admission, his party set off to confront the persons responsible. The bayonet that inflicted the fatal wound was on display as they rushed towards the deceased. The appellant was one of those who chased the deceased and cut off his means of escape. He was close to the deceased when the fatal blow was inflicted. He was in possession of the axe soon after the attack. He then went into hiding.

[63] Even if the evidence of the confessions was disregarded, there was nonetheless a powerful case with convincing evidence of concert.

VII The role and the responsibilities of solicitors and solicitor advocates

Livingstone Brown's response to the grounds of appeal

[64] The appellant's present agents asked Livingstone Brown to confirm or deny that they had acted for Mrs Woodside. They did not provide a satisfactory answer. It was only on the eve of a hearing on an application for recovery of the relevant documents that Mr McGlashan handed over a number of files. On 2 May 2007, during the course of the first hearing, we ordered Livingstone Brown, Mr Brown and Mr McSherry to produce their case papers relating to the trial and ordered Livingstone Brown to produce their legal aid accounts. Livingstone Brown failed to obtemper this order. They produced certain documents shortly before the hearing was resumed, but these did not include their legal aid account. It was not until the fifth day of the resumed hearing that Mr McGlashan handed it over.

[65] I consider that in these respects Mr McGlashan has been discourteous and obstructive. We have commented before on the problems caused in Anderson appeals where trial counsel are uncooperative (cf Gillespie v HM Adv, 2003 SCCR 820; McBrearty v HM Adv, supra). In the light of this case, we may have to reconsider our practice in this aspect of Anderson appeals.

The professional conduct of solicitor advocates

[66] Rights of audience in the High Court were extended to solicitors, on certain conditions, nearly twenty years ago (Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (the 1990 Act), s 24). In this appeal we have had to consider the way in which rights of audience have been exercised. We are not concerned with the policy considerations that lay behind section 24 of the 1990 Act; but it is right that we should comment where weaknesses in the operation of it may put the interests of justice at risk.

[67] It is unfortunate that the three solicitors concerned in the trial in this case should have been singled out for public scrutiny of their conduct of the defence, especially so long after the event. There is reason to think that some of the practices for which counsel for the appellant has criticised them may be widespread among solicitors who practise in this area of the law. It is particularly unfortunate in the case of Mr Brown. He is an experienced solicitor who has been honoured with the CBE for his service to his profession. It was my impression that Mr Brown was completely truthful in his evidence at this appeal. Mr McSherry gave me the same impression. If, as I believe, they may have erred in certain aspects of their duty, their errors have arisen from a failure in the understanding of their duty rather than from any improper reason. I raise the matters of professional practice that I am about to discuss only out of a concern that every person accused of serious crime should have access to the best available advice and representation and should be defended with the highest standards of professional competence and diligence.

The codes of professional conduct for solicitors and solicitor advocates

[68] At the time of the trial Mr Brown, Mr McSherry and Mr McGlashan were bound by the Code of Conduct (Scotland) Rules 1992 (the 1992 Code). Rule 3 provided inter alia as follows:

"Where in the course of advising a client a solicitor identifies a situation which may require appearance in a court, he shall advise his client ...

(b) [of] the advantages and disadvantages of instructing appearance by a

solicitor advocate and by counsel respectively, which advice, subject to the foregoing generality, shall cover

(i) the gravity and complexity of the case;

(ii) the nature of practice, including specialisation, and experience

of the solicitor advocate; ...

instructed is entirely that of the client."

A solicitor advocate was obliged to observe and comply with the Rules of Conduct set out in Schedule 2 to the Code. Paragraph 1(2) of the Schedule provided that a solicitor advocate was entitled at all stages of the case at his sole discretion to decide whether he required

"the assistance of a solicitor or other representative of his firm or of the instructing firm in connection with the preparation of the case and also at consultations with the client and at the presentation of the case in court."

Paragraph 9(1) provided that it was the duty of the solicitor advocate to arrange his affairs so as to avoid a reasonably foreseeable clash of commitments. Paragraph 9(2) provided that having accepted instructions to appear, it was the solicitor advocate's responsibility to ensure, unless (in a civil case only) other arrangements had been made with an instructing solicitor, that he was present in court on the day and at the time appointed and thereafter until the trial or hearing was concluded. Paragraph 9(5) provided that where a senior solicitor advocate appeared with a junior solicitor advocate, he should be absent from court only if he was satisfied that his junior would be present and would be able to deal properly with any matter that might arise.

Seniority

[69] When senior and junior counsel are instructed in a defence, their roles and responsibilities are clear-cut and well understood. That concept of seniority is in my view conducive to the due administration of justice. It does not apply in the case of solicitor advocates. In the 1992 Code, the terms "senior solicitor advocate" and "junior solicitor advocate" were not defined. When two solicitor advocates conduct a defence together, the leading solicitor advocate is not necessarily senior to the other in terms of admission as a solicitor or admission as a solicitor advocate, or for that matter in terms of experience and skill. Sometimes two solicitor advocates appear in a trial, ostensibly as senior and junior, only to appear in a later trial with their roles reversed. Although the 1992 Code, like the current Rules for the Conduct of Solicitor Advocates 2002 (the 2002 rules, rule 9(5)), envisaged that where two solicitor advocates appeared together, there would be a relationship of senior and junior, in practice there is no concept of seniority other than for the purpose of charging fees. The Criminal Legal Aid (Scotland) (Fees) Regulations 1989 provide that a solicitor advocate shall be a "senior solicitor advocate" where he is undertaking work equivalent to that which would be done by a senior counsel in a case where the proceedings relate to a prosecution or conviction for murder or where the Scottish Legal Aid Board has authorised the employment of senior counsel; and that a solicitor advocate shall be a "junior solicitor advocate" where he is undertaking work equivalent to that which would be done by a junior counsel, whether or not the Board has authorised the employment of senior counsel in the case (reg 2(1A)).

[70] The matter of fees is no concern of this court, except where it may have a bearing on the due administration of justice. The undisputed evidence in this appeal is that when two solicitor advocates appear together, the nominal leader, whether or not he is senior to his colleague in any respect, and regardless of his experience, is paid as if he were a Queen's Counsel. Such a solicitor advocate may have little experience and may be ineligible for silk. That rule creates an incentive that may not be in the interests of justice.

Advice to the client regarding representation

[71] My conclusion on the evidence is that Rule 3 of the 1992 Code was disregarded in this case. I regret to say that Mr McGlashan was not a credible or satisfactory witness. When questioned about certain matters that seemed not to reflect well on Livingstone Brown, he displayed studied unconcern. He replied unconvincingly to numerous questions by saying either that he did not know or that he could not remember. He appeared to resent being questioned at all. I do not believe his evidence that he discussed with the appellant the option of his being defended by counsel. He himself was unable to recall the precise terms of this alleged discussion. There is no trace of it in any of the files. There is no entry in the legal aid account to suggest that enquiries were made of the advocates' clerks regarding the availability of counsel. No names of counsel, senior or junior, or of any other solicitor advocates, were put to the appellant. When Mr McGlashan instructed Mr Brown in this difficult case he did not know what experience he had had in murder trials.

[72] The reality is that Mr Brown decided at the outset that he would defend the appellant with Mr McGlashan in the role of his instructing solicitor. No other option was put to the appellant. Even when Gordon and Smyth reported to Livingstone Brown that the appellant wished to be defended by senior counsel, neither Mr McGlashan nor Mr Brown seems to have discussed that option with him. An obvious weakness in Rule 3 of the 1992 Code was, in my view, that while it imposed a professional obligation, it provided no practical safeguard against its being ignored. There is the same weakness in the 2002 Rules.

[73] But this case highlights a more serious problem. It arises from the fact that a solicitor advocate may accept instructions from his own firm (1992 Code, Sch, para 1(2); now the 2002 Rules, rule 1(2)). It is difficult to see how a solicitor who has rights of audience, or whose partner or employee has such rights, can give his client disinterested advice on the question of representation. There may be an incentive for him not to advise the client of the option of instructing counsel, or a solicitor advocate from outside his firm, in circumstances where either of those options might be in the client's best interests. Even if the solicitor conscientiously advises the client that he or his partner or employee should defend him, the informed observer may reasonably doubt the objectivity of that advice.

Instruction by an employee

[74] When a solicitor advocate undertakes a criminal defence, he is in theory an independent pleader who acts upon instructions, like a member of the Bar. If a solicitor advocate is instructed by his own firm, the relationship of instructing solicitor and independent pleader is purely nominal. In this case the relationship of employer and employee would have been bound to inhibit Mr McGlashan from withdrawing Mr Brown's instructions, if that had even occurred to him, when Mr Brown proposed to absent himself from the trial while on holiday, or from insisting on Mr Brown's presence at the trial when he proposed to spend a day in London. That relationship can lead to a confusion of roles where, as in this case, the in-house solicitor advocate, although separately remunerated by the Scottish Legal Aid Board, also charges on the firm's account for work done by him as a solicitor in the case. These considerations lead me to doubt whether the practice illustrated by this case properly reflects the assumptions on which section 24 of the 1990 Act was based.

Self-certification of competence

[75] To attain the rank and dignity of Queen's Counsel, a member of the Bar or a solicitor advocate has to demonstrate the length and range of his experience and the quality of his skills and judgment. The Dean of Faculty supervises the representation of accused persons in the High Court by members of Faculty to ensure that serious and difficult defences are not put in the hands of inexperienced counsel. If necessary, the Dean will direct a member of the senior Bar, or an experienced junior of proven ability, to make himself available for a criminal defence, regardless of his prior commitments. With solicitor advocates, however, the position seems to be one of unmonitored self-certification. As Mr Brown told us, it is possible for a solicitor to be given rights of audience and to appear in the High Court on the following day on his own or as senior to another solicitor advocate. From the standpoint of the administration of justice, the idea that any solicitor advocate can accept instructions, perhaps from his own employee, as leader in a serious trial regardless of his experience and skill, is a matter for concern. The 2002 Rules provide no safeguard to protect the accused in such a case from being defended by an inexperienced solicitor advocate whose reach exceeds his grasp.

Mixed representation

[76] There is a fundamental difference between an accused person's relationship with counsel and his relationship with his solicitor. Counsel is the holder of the public office of advocate. He conducts a case according to his own discretion and judgment. He is entirely independent in the performance of his duty. A solicitor is in a contractual relationship with the client and is obliged to follow the client's lawful and proper instructions (Batchelor v Pattison and Mackersy (1876) 3 R 914, Lord President Inglis at p 918).

[77] This distinction is of even greater relevance now that a solicitor may instruct a member of the Bar as senior or as junior to a solicitor advocate. That seems to me to present further problems for the administration of justice. The court has a legitimate interest in being able to identify a clear point of responsibility for decisions taken in the course of a trial. In general, I think that there are dangers where the defence in a serious trial is in the hands of two lawyers who are governed by separate codes of conduct and are subject to separate disciplinary jurisdictions, not least since the Law Society may, at its discretion, waive compliance by a solicitor advocate with any of the 2002 Rules (rule 5). But there are more particular dangers. Such an arrangement could compromise the independence of counsel if, for example, a capable and experienced counsel were to be instructed as junior to a solicitor advocate who was inexperienced or had an imperfect understanding of his responsibilities; or as junior to a solicitor advocate who was being instructed by his partner or employee.

Absence from a trial

[78] The privilege of being a lawyer carries the responsibility of commitment to the service of the client. That commitment should be part of every practitioner's professional instinct. I fail to see how any practitioner could be justified in absenting himself from any part of a murder trial except in an emergency.

[79] It appears that Mr Brown had only the most diminished awareness of his responsibilities. When it was thought that the trial date in this case would clash with his holiday plans, Mr Brown made the serious proposal to another solicitor advocate that he should "sit in" for him until he returned from holiday. That proposal would have been a dereliction of duty and would have been professionally irresponsible. In the event, no harm was done because the trial was postponed for other reasons. However, during the course of the trial, Mr Brown chose to absent himself on Law Society business. This too was a dereliction of his duty to his client.

Conclusion

[80] This appeal has highlighted problems of rights of audience that seem not to be unique to this case. I think that it would be opportune if there were to be a review of the working of the system overall.

Disposal

[81] I propose to your Lordships that we should refuse the appeal on the grounds that we have considered and continue it for a hearing on the remaining grounds.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Nimmo Smith

[2009] HCJAC 19

Appeal No. XC23/03

OPINION OF LORD OSBORNE

In the Appeal

ALEXANDER WOODSIDE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant: Shead, Richardson; Culley & McAlpine, Perth

For the Crown: Stewart QC, AD; Crown Agent

18 February 2009

[82] I have had the opportunity of reading the Opinion delivered by your Lordship in the chair. I am grateful for the account of the facts of this case that it contains. I am in complete agreement with your Lordship's Opinion and with the proposal made in it for the disposal of this part of the appellant's appeal. However, in view of the particular circumstances disclosed in the course of the evidence heard in the appeal, I wish to express briefly my own view on certain aspects of the case.

[83] Where this court requires to evaluate what may be called an Anderson ground of appeal, its invariable practice is to invite any practitioner, whose previous conduct of the case has been put in issue, to comment on the relevant grounds of appeal. A practitioner who receives such an invitation from the court may well not wish to respond to criticisms made of their conduct of the case in question, for which position there may be quite understandable reasons. However, where the ground of appeal concerned also makes pure allegations of fact which the practitioner considers are unfounded, or inaccurate, it appears to me that the practitioner, as an officer of the court, has a responsibility to draw that to the court's attention.

[84] The second matter on which I would wish to comment arises from the situation where more than one solicitor advocate appears on behalf of an accused person, or where, as may happen now, a solicitor advocate appears with a member of the Faculty of Advocates to represent such a person. In my view, it is essential that arrangements should be established, in terms of which, in such situations, there is clarity as to which of more than one practitioner involved is to be recognised as the senior. Plainly, responsibilities attach to the position of being the senior representative of an accused person, which do not attach to his or her junior. It is a corollary of that that, for purposes of professional discipline, such matters should not be in doubt. Unfortunately the present arrangements relating to solicitor advocates described in the Opinion of your Lordship in the chair, do not seem to me to achieve that necessary end. It is to be hoped that in early course the desirable changes will be made. It might be thought that, whatever form those arrangements might take, they would require to involve the making of an assessment as to whether a solicitor advocate was or was not qualified to act as a senior. The present arrangements in which two solicitor advocates may appear in one case, with one acting as senior and the same solicitor advocates may appear in another case, with the other acting as senior, seem to me unsatisfactory and to undermine the confidence which a senior should be able to command.

[85] Finally, your Lordship in the chair has made reference to the Code of Conduct (Scotland) Rules 1992 (the 1992 Code) and, in particular, Rule 3 thereof. You have observed that that Rule was disregarded in the present case. I am wholly in agreement with that view. In these circumstances, it must be a matter for consideration by the relevant authority as to how the proper operation of this desirable Rule should be reinforced. At the present time it may be that any breach of it simply goes undetected with the consequence that the vital interests of a client in what may be, for him, a very serious situation, may be damaged.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Nimmo Smith

[2009] HCJAC 19

Appeal No. XC23/03

OPINION OF LORD NIMMO SMITH

In the Appeal

ALEXANDER WOODSIDE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant: Shead, Richardson; Culley & McAlpine, Perth

For the Crown: Stewart QC, AD; Crown Agent

18 February 2009

[86] I agree with your Lordship in the Chair that, for the reasons given by your Lordship, the appeal should be refused on the grounds thus far considered. I wish only to add a few words about the professional issues which the appeal has exposed.

[87] An Anderson appeal such as this is bound to give rise to scrutiny, no doubt unwelcome, of the professional conduct of those who represented the appellant at the time of his trial. It is perhaps unfortunate that we have had to scrutinise the professional conduct of the present appellant's representatives so long after the trial, and that it is their shortcomings which have come to be exposed. Your Lordship's criticisms are, however, fully justified; and the case provides an opportunity to express concern about the current arrangements for the instruction of solicitors with extended rights of audience in the High Court of Justiciary. An in-house arrangement, such as that whereby Mr McGlashan instructed Mr Brown, is bound to attract scrutiny, and should be able to withstand it. There is anecdotal evidence that in other cases the arrangement is that solicitors in different firms take it in turns to act as instructing solicitor and solicitor advocate. This can hardly have been what Parliament had in mind in enacting section 24 of the 1990 Act.

[88] The trial in the present case took place before the Scotland Act 1998 and the Human Rights Act 1998 came into force. As we have seen in many cases in this court, Article 6 of the European Convention on Human Rights gives rise to re-examination of many arrangements relating to criminal trials. Paragraph 3 of that article provides that everyone charged with a criminal offence has certain minimum rights, including the right to defend himself in person or through legal assistance of his own choosing. Any such choice, to be effective, must be fully informed and based on objective advice directed to the best interests of the accused, not those of his legal representatives, and must demonstrably be so. It is to be hoped that the relevant Rules will be re-examined to ensure that this fundamental requirement is met.