APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 128
Lord Eassie Lady Dorrian Lord Bracadale	Appeal No: XC526/12   OPINION OF THE COURT   delivered by LORD BRACADALE   in   NOTE OF APPEAL   by   HD   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: McKenzie; Drummond Miller LLP

Respondent: Brodie QC, AD; Crown Agent

 

18 October 2013

 

Introduction

[1] On 2 April 2012 at a continued preliminary hearing at the High Court at Edinburgh the appellant pled guilty to a charge in the following terms:

"(1) On two occasions between 22 April 2008 and 28 February 2009, both dates inclusive, at [various places in Perthshire] you did assault CH, born 16 April 1997, care of Tayside Police, Perth, penetrate her vagina with your penis and did rape her."

 

As originally libelled the charge included reference to "various occasions" and a number of further loci. Pleas of not guilty to the remaining charges were accepted by the Crown.

[2] The appellant, who was born on 1 November 1994, was aged 13 and 14 years when he was alleged to have committed the offences and 17 years at the time of sentence. One previous conviction was libelled: on 17 March 2011 at Forfar Sheriff Court the appellant was convicted on summary complaint of three contraventions of the Criminal Law (Consolidation) (Scotland) Act 1995 section 52(1). Sentence on the charge of rape was initially deferred until 21 April 2011 and thereafter until 29 August 2012 when the sentencing judge, Lord Uist, having considered a number of reports on the appellant, made a probation order for three years.

 

Note of Appeal

[3] In this appeal the appellant seeks to withdraw his plea of guilty to charge (1). In the note of appeal, in a series of numbered paragraphs, the procedural history of the case is set out and paragraph 7 concludes:

"It is submitted that in the whole circumstances as narrated above, that particularly having regard to the appellant's limited level of intellectual functioning, that the plea of guilty was tendered under real error and misunderstanding and that a miscarriage of justice has occurred."

 

The law

[4] There was no dispute as to the applicable law. Parties recognised that a plea of guilty can be withdrawn only in exceptional circumstances. In Reedie v HMA 2005 SCCR 407 the Lord Justice Clerk (Gill), delivering the opinion of the court, stated:

"[11] A plea of guilty constitutes a full admission of the libel in all of its particulars (Healy v HM Adv, supra). It is not a conditional admission that is subject to reconsideration in the light of a subsequent decision of the court (Dirom v Howdle, supra); nor, in our view, in the light of a subsequent verdict in the trial of another party on the same charge. In view of the conclusive nature of such a plea, it can be withdrawn only in exceptional circumstances (Dirom v Howdle, supra): for example, where it is tendered by mistake (MacGregor v MacNeill, 1975 JC 57) or without the authority of the accused (Crossan v HM Adv, supra). There is little scope, if any, for the withdrawal of a plea that has been tendered on legal advice and with the admitted authority of the accused (Rimmer, Petr, supra)."

 

Reference was also made in submissions to the following passage from the opinion of Lord Osborne in McMillan v HMA [2011] JC 138:

"It is well recognised that a conviction following upon a plea of guilty tendered with legal advice can only be quashed in limited circumstances. These are, first, where it has been tendered without the authority of the accused person, second, if tendered under some real error or misconception, or third, if tendered in circumstances which were clearly prejudicial to the accused...".

 

The contention before us was that the appellant's plea of guilty was tendered under some real error or misconception.

 

Evidence

[5] In the light of an earlier hearing of the case at which it was decided that it would be necessary to hear evidence before disposing of the appeal, we heard evidence on behalf of the appellant from the appellant himself and his father, SD, and on behalf of the Crown from Susan Duff, advocate, Robert Bruce, solicitor, and Michael Ferrie, solicitor. Mr Bruce was the senior partner of Bruce & Company and Mr Ferrie was employed by the firm.

[6] In order to examine the conflict of evidence at the heart of the case it is necessary to set out in some detail the history, much of which was not in dispute. On 15 April 2011 the appellant appeared on petition at Perth Sheriff Court; the petition included the charge relating to CH. The appellant made no plea or declaration; the case was continued for further examination and the appellant was granted bail. The appellant instructed Mr Bruce to represent him. Mr Bruce had previously represented him on summary matters and was familiar with the appellant.

[7] The case being one likely to be prosecuted in the High Court, at an early stage Mr Bruce instructed counsel, Mrs Duff. In November 2012, in response to being given notice of this appeal, Mrs Duff prepared a note of her involvement. The note was based partly on contemporaneous notes made by her and partly from memory. She referred to the note in the course of her evidence. Mrs Duff consulted with the appellant for the first time on 29 June 2011. On this occasion, and indeed on all occasions on which he consulted with his solicitor or with his solicitor and counsel, the appellant was accompanied by his father, SD. At the consultation on 29 June 2011 Mr Bruce was the instructing solicitor. It was recognised by each of the legal representatives who had dealings with him that the appellant had learning difficulties. Because she wondered whether the appellant had a mental age much younger than his physical age Mrs Duff instructed agents to obtain a report from a clinical psychologist to address the question of the appellant's mental capacity. In due course Dr John Marshall was instructed and produced a report.

[8] Mrs Duff's evidence was that at the consultation on 29 June 2011 the appellant's position was that he had not had sexual intercourse with CH and that CH was lying. In the course of being interviewed by the police the appellant had made what could be construed as admissions. He told Mrs Duff that he had done so because he had been told that if he did not admit it, he would not get his medication. Mrs Duff considered that there was a strong case against the appellant. In addition to what had been said by the appellant in the interview there were statements from other children who claimed to have been present during sexual activity between the appellant and CH. Mrs Duff's concerns at that stage were to know whether the appellant, because of his learning difficulties, had understood the caution given by the police at the beginning of the interview and whether he could understand the proceedings. At this meeting she advised him of the terms of section 196 of the Criminal Procedure (Scotland) Act 1995. She told the appellant that he would have to make the decisions about the case; while she would be able to advise him, he must make the decisions himself. Mrs Duff was satisfied that the appellant understood what she was saying. In addition, she had been told by Mr Bruce that when he had acted for the appellant on previous occasions, there had been no difficulty in his understanding. Furthermore, throughout the consultation the appellant had been accompanied by his father.

[9] The appellant and his father had a meeting with Mr Bruce on 30 November 2011 when the transcripts of the police interview were reviewed. In early January 2012 an indictment was served on the accused citing him to a preliminary hearing at the High Court at Glasgow on 14 February 2012. Charge 1 on the indictment (which contained five charges) libelled the rape of CH. On 25 January 2012 the appellant and his father had a meeting with Mr Bruce at which the terms of the indictment were discussed and disclosed statements were gone over.

[10] On 10 February 2012 Mrs Duff had another consultation with the appellant who was again accompanied by his father. It was necessary for Mrs Duff to consult with the appellant at this stage in order that she could prepare and submit the joint written record prior to the preliminary hearing. She wanted instructions as to how the case should proceed. On this occasion Mr Ferrie, to whom responsibility for the case had been given by Mr Bruce, was present as instructing solicitor.

[11] Mrs Duff's evidence was that in the course of this consultation, the appellant told her that he did have sexual intercourse with CH but was adamant that she had consented. Mrs Duff explained to the appellant that a girl under 12 years of age was, in law, incapable of giving consent. His belief with respect to consent did not constitute a defence. She considered that he understood that explanation; she got no sense from him that he did not understand it. Both he and his father nodded in response to it. The appellant did not accept any of the other allegations on the indictment. In the light of the appellant's position, Mrs Duff indicted that, at this stage, she did not want instructions from him, but wanted his permission to speak to the advocate depute in order to find out what the Crown's "bottom line" would be. The appellant gave permission. Mr Ferrie prepared a file note of this meeting. Mr Ferrie accepted that his file notes were sometimes not of the highest quality. He did not record that the appellant admitted that he had had sexual intercourse with CH. In his evidence he recalled that the appellant had said that he had had sexual intercourse with CH, but had not forced himself on her. In the file note he recorded:

"Noting however that the evidence does appear that he did have sex with a person under the age of 12 and in that event it is rape as far as the statue (sic) is concerned. [The appellant], seeming to understand this and noting that basically all he is looking for is the best possible deal out of this, stated that he would be quite happy with probation or something along that line. Susan Duff explaining that she couldn't give him any guarantees about what would happen, but she believes that making a plea to rape and obtaining a 'soft narration' from the Crown may be his best bet."

 

[13] As we shall explore in more detail later there is a significant conflict between the evidence of Mrs Duff, Mr Bruce and Mr Ferrie, on the one hand, and the evidence of the appellant and his father, on the other, as to whether at this or subsequent consultations the appellant admitted that he had sexual intercourse with CH.

[14] On 14 February 2012 the case was continued for a further preliminary hearing as the psychologist's report was not ready.

[15] On 28 February 2012 Dr Marshall carried out an assessment of the appellant. After the assessment he spoke to Mr Ferrie and told him that the appellant had an extremely low IQ and could not possibly understand a police caution. On 13 March 2012 Dr Marshall submitted his report which reached the following conclusion:

"What this means (the results of testing the appellant's cognitive functioning) is the following: his speed of taking in information and retaining it is impaired, his level of vocabulary and comprehension is just above the cut off for impairment and immediate recall (or working memory) is impaired. Overall, his full scale IQ is significantly impaired. Indeed his overall intellectual level is classified as extremely low..."

 

[16] On 22 March 2012 Mrs Duff had a meeting with an advocate depute in the course of which there was a lengthy discussion about the case. She indicated to the advocate depute that there was no scope for any plea in relation to any of the other charges, all of which had been denied by the appellant. Her purpose was to seek as restricted a plea as possible to charge 1. The advocate depute insisted on a plea of guilty to rape of CH on at least two occasions. The advocate depute also prepared a narrative so that when Mrs Duff took the appellant's instructions, she could explain to him what the agreed narrative would be. Mr Ferrie, to whom Mrs Duff had communicated this information, recorded the following note in the file on 22 March 2012:

"...noting that she is stating that she has spoken to Alistair Carmichael, the advocate depute, and has managed to negotiate a plea whereby [the appellant] on two occasions did rape the child under the age of 12. Not guilty to everything else. She is seeking to negotiate reforming the words to state that it was rape because she was under the age of 12, but there was no force involved..."

 

[17] On 27 March 2012 Mr Bruce came back into the picture and had a meeting with the appellant and his father. In the course of that meeting, Mr Bruce noted that the appellant did not understand the nature of the plea being negotiated. He went on to record:

"Advising we have suggested that we will plead to two counts of rape, however, rape constituted by the fact that the complainer was under the age of 12, not that it was non‑consensual. Taking some time to explain this to the client as he has learning difficulties."

 

[18] In his evidence Mr Bruce explained that he had represented the appellant in relation to three summary complaints prior to the petition matter. He said that as a result he was acutely aware of the parameters of understanding of the appellant. He would have to explain things in order to make sure that the appellant did understand. He was careful not to use words which the appellant would not understand. As a result Mr Bruce found that he never had any difficulty in communicating with the appellant. In relation to each of the allegations in the summary complaints the appellant had initially denied any involvement, but when confronted with what was contained in the disclosed statements, he had accepted his involvement and pleas of guilty were tendered. Similarly, in the early stages of the petition matter when Mr Bruce was dealing with it, the appellant had denied any involvement but had later admitted having sexual intercourse with CH.

[19] Mr Bruce explained that at this meeting on 27 March 2012 it was the connotation of lack of consent in the word "rape" that was the problem for the appellant. He was a 17 year old youth who admitted that he had had sex with a girl under the age of 12. The whole purpose of the meeting was to explain the basis of the plea to him. Mr Bruce took time to explain that where the girl was under the age of 12 years the issue of consent did not arise. When it was put to Mr Bruce in cross‑examination that the appellant's position throughout had been that he had never had sexual intercourse with CH, Mr Bruce described such an assertion as "utterly preposterous". The whole underlying purpose of the meeting was to deal with the question of consent. The conversation was predicated on an acceptance by the appellant that he did have sexual intercourse with CH. If the appellant had stated at that meeting that he had not had sexual intercourse with CH, Mr Bruce would have immediately contacted Mrs Duff.

[20] On 29 March 2012 Mrs Duff had a consultation with the appellant and his father; Mr Ferrie was present. At that consultation, Mrs Duff told the appellant what the Crown's position was and went over the terms of the narrative. Mrs Duff's evidence was that she asked the appellant what he wanted to do and he told her that he wanted to plead guilty in those terms. She did not have to persuade him to that effect. At the end of the meeting, the appellant and his father thanked her and appeared to be grateful for what had been achieved. After she left the consultation she telephoned the advocate depute from the car park and told the advocate depute that she had discussed the terms of the plea and the narrative with the appellant and had his instructions to plead guilty. There was no doubt in her mind as to these instructions. If the appellant had not given her instructions, or even if he had been unsure about his position, she would have stalled the Crown. Mr Ferrie's file note was in the following terms:

"Going over agreed narrative and explaining various issues in relation to this case and noting that [the appellant] agrees to the narrative and will plead guilty when the case calls on Monday, 2 April 2012 at Edinburgh High Court. Noting in general terms that Susan Duff, counsel, is commending the agreed narrative as generous and that her view is that a plea would best be tendered rather than take this matter to trial."

 

[21] At the continued preliminary hearing at the High Court at Edinburgh on 2 April 2012, Mrs Duff appeared on behalf of the appellant and tendered a plea of guilty to charge one on the restricted basis earlier identified. The agreed narrative was read and the case was continued for the preparation of reports.

[22] On 4 April 2012 Mr Ferrie wrote to the appellant advising him to make an appointment with Mr Ferrie to discuss the social work report. By this time SD had decided to instruct a new solicitor. A note dated 3 April 2012 records that SD telephoned the appellant's present agent, Mr James Baxter, asking Mr Baxter to return the call.

[23] In his evidence in chief the appellant said that from the age of nine he had had very little education as his attendance at school had been very poor. He was repeatedly excluded from primary and secondary school. He said that after he appeared on petition he consulted Mr Bruce. He told Mr Bruce that he had not had sexual intercourse with CH. He said that throughout all the meetings with Mr Bruce, Mr Ferrie and Mrs Duff he had denied having sexual intercourse with CH. He had said that he was friends with her and would never have done that to her. He said that at all times he wanted to plead not guilty and take the case to trial.

[24] He recalled the meeting of 10 February 2012. He said that the lawyers were discussing the best deals for him. He said he wanted to take the case to trial. They said that it would go badly for him at trial. There was some talk of probation. There was mention that he should take a bag with him when he went to court as he may be going to jail.

[25] There was one meeting that he had walked out of because he got so angry. His father had to come and get him to come back in. He got angry because the solicitor kept saying that the appellant had had sex with CH. At the meeting on 29 March 2012 he told the lawyers that he wanted to plead not guilty and go to trial. Mrs Duff had said that if he went to trial it would go badly for him and he would go to jail. He was worried at that so he went along with what she said. There was something said about pleading guilty, but he could not really remember the whole meeting.

[26] The appellant's evidence as to "going along" with what was said by Mrs Duff was revisited and further explored in cross-examination. The following exchange took place between the advocate depute and the witness:

"AD: Her advice to you was to plead guilty?

Ans: Yes.

AD: You agreed with her advice?

Ans: Yes.

AD: Did you understand pleading guilty meant a conviction?

Ans: Yes.

AD: Do you understand a conviction meant some kind of sentence?

Ans: Yes.

AD: You would go along with her advice to plead guilty?

Ans: Yes.

AD: Susan Duff would leave that meeting understanding that you would go along with her advice to plead guilty?

Ans: Yes."

 

[27] The appellant also gave evidence as to what happened at court on 2 April 2012. He went to court with his father. Outside the court he talked to Mrs Duff and Mr Ferrie. Something was said that he was going to be signing for social work reports or something. Mrs Duff had said something about social work reports and he thought that he was just signing for social work reports. Outside the court Mrs Duff said, "Are you wanting to plead guilty today?" and he said, "No, I'm still wanting to plead not guilty". When the case called, Mrs Duff got up and said something about guilty. He froze. A paper was put in front of him and he thought it was something to do with the social work report. He signed it because he had been told that he would have to sign something. After court they went outside and his father tried to get a hold of Mr Ferrie. Both he and his father said to Mr Ferrie that the appellant had not wanted to plead guilty. They went home and his father said that they wanted to get new lawyers.

[28] Mr SD, the father of the appellant, gave evidence. He had difficulty in remembering many details of the various meetings. In examination in chief he recalled that at the meeting of 29 March, Mrs Duff was saying that the appellant would have to plead guilty. He himself did not agree with that approach and made that clear. He did not want the appellant to plead guilty. In cross-examination in relation to this meeting he said that Susan Duff explained the plea that the advocate depute would accept which was restricted to a plea to sexual intercourse on two occasions in charge 1. She told them what was in the narrative. He understood that that would be the basis on which the plea would be given. He said to the appellant, "it's up to you". He was content for the appellant to make the decision. He had the confidence that the appellant understood what decision was to be made. The following exchange took place with the advocate depute:

"AD: Did he indicate that he would go along with the advice?

Ans: No, he said he was pleading not guilty.

AD: He said he was pleading not guilty?

Ans: I think I can deny that he said he would go along with Susan Duff."

 

When the suggestion was put to him again that the appellant had said he would go along with the advice, the witness replied that he could not remember the appellant saying that. That sequence of answers appeared to reflect a shift of position.

[29] At the court on 2 April the appellant and he were still stating that the appellant should plead not guilty. Mr Ferrie was still saying that it would be best for the appellant to plead guilty. Mrs Duff said similar things. Afterwards, outside the court, he had said to Mr Ferrie and Mrs Duff that what had happened was not what they had wanted. He thereafter contacted new solicitors.

 

Submissions
Appellant

[30] Mr Mackenzie, who appeared on behalf of the appellant, submitted that the appellant had a very low IQ and that his defence team had sufficient concerns about his level of intellectual functioning that they considered it necessary to instruct a psychologist to assess him. The psychologist assessed him as having "significantly impaired intellectual functioning which meant he was likely to struggle to understand the police caution" and that "cognitive testing highlighted short term memory problems and impaired attention or concentration". Members of his defence team were aware of these statements prior to the consultation on 29 March. Despite the information available to them as to his learning difficulty, members of his defence team claimed that they could not discern any inability of the appellant to understand what he was being told. The court should treat that claim with care. Mr Mackenzie submitted that when the appellant agreed with many of the propositions put to him on cross‑examination, it could legitimately be questioned whether the appellant genuinely understood what was being put to him. At page 8 of the psychologist's report, it was noted "it is well understood that suspects with a low intelligence are more likely to answer "yes" that they understand a concept then cannot actually demonstrate that they understand, when asked". Mr Mackenzie submitted that it was easy for experienced criminal practitioners to characterise the combination of the words "rape", "force", "consent/non-consensual" and the significance of puberty as being simplistic concepts when in reality for a young adult with a range of learning difficulties, they were not so simplistic. Mr Ferrie had conceded that it was possible that at the meeting on 29 March 2012 the appellant may not have understood what was being suggested to him as the best course of action at the meeting on 29 March 2012.

[31] Mr Mackenzie pointed out that the appellant had never signed a declaration indicating that he was pleading guilty to charge 1 because he accepted that he had, as a matter of fact, had sexual intercourse with CH on two occasions. He referred to the Guide to Professional Conduct of Advocates at paragraph 8.2.1 where it is noted that it is prudent to obtain written instructions from the accused for the tendering of any plea. In addition, nowhere was it recorded in a file note that there had been a change of position by the appellant from his initial denial of having sexual intercourse with CH to accepting it at the later consultations. It was also of note that on the day after the plea was tendered, the father of the appellant took steps to obtain new solicitors with a view to instructing them that the plea had been wrongly tendered.

 

Crown

[32] The advocate depute submitted that the appellant had the benefit of legal advice from the time of his appearance on petition until the plea was tendered on 2 April 2012. The plea was tendered by his counsel. While the medical evidence indicated that the appellant was of low intelligence and had a mild learning disability, the issue in the case was whether he did understand the advice given and instructed a plea of guilty to a charge of raping CH. The plea was tendered following legal advice and on the instruction of the appellant. In the whole circumstances the appellant was to be taken as having understood the plea and the instructions he was given to tender it. Accordingly, exceptional circumstances of the nature envisaged by the court in the authorities cited, were not demonstrated and the appeal should be refused.

 

Discussion and decision

[33] It is clear from the report of Dr Marshall and that of Dr Fergus Douds, who prepared a pre‑sentence report for the court, that the appellant does have a learning disability. That said, we noted a passage of some significance in Dr Doud's report at p 5:

"[HD] tends to speak slowly but can communicate effectively using quite simple vocabulary. I did not think that there was any evidence of a significant receptive language disorder (effecting the processing of what was being said to him), but he often did not understand any longer words used..."

 

[34] In our opinion Dr Doud's observation was reflected in the way in which the appellant gave his evidence. It was apparent to us that the appellant understood the questions when put in simple form but struggled with longer words or complex questions. It was clear from the evidence of Mrs Duff and Mr Bruce that they were careful to use simple language in their communications with the appellant and their impression was that he understood what they were saying. Mr Bruce's experience with the appellant in respect of the three summary complaint matters also reflected this. In addition, the evidence demonstrated that the father of the appellant had sufficient confidence in the appellant's ability to understand that he left the matter to the appellant to decide. We are satisfied that although the appellant may have had limitations in processing and retaining information, he did have the capacity to understand the legal advice which was being given in the manner in which it was being given and to give instructions. It was also our clear impression that having regard to the tone and manner of the advocate depute's questions and the appellant's response to the questions that he understood the propositions being put to him.

[35] Mrs Duff is an advocate with very considerable experience in the field of criminal defence work. It was clear from her evidence that she had a structured approach to the process of obtaining instructions, negotiating pleas and taking final instructions. We accepted her as a credible and reliable witness. Her recollection of events was supported by reference to her normal practice and to the documentation which was available. We agree with the advocate depute that it would be inconceivable for her to have tendered a plea of guilty for which she did not consider that she had instructions.

[36] We consider that Mr Ferrie gave his evidence in a straightforward manner. While, as he himself accepted, his file notes left something to be desired, we accept his evidence as to the instructions given by the appellant.

[37] We found Mr Bruce to be a credible and reliable witness. His immediate and strong reaction to the suggestion put to him in cross examination that at his meeting with the appellant on 27 March 2012, the appellant was still denying having had sexual intercourse with CH was spontaneous and rung true.

[38] On the other hand, we are unable to accept the evidence of the appellant and his father that throughout the entire process the appellant denied having sexual intercourse with CH and at all times was protesting that he wished to plead not guilty . It is inconsistent with the evidence of Mrs Duff, Mr Bruce and Mr Ferrie, which we do accept. The appellant had a propensity to deny involvement and then accept involvement when confronted with the evidence. This had been the pattern which Mr Bruce experienced with respect to the summary complaints. The exchanges between the appellant and the advocate depute quoted above indicate that the appellant had much more understanding of his position at the consultation on 29 March than he wished to communicate to us.

[39] We found the evidence of Mr SD to be unsatisfactory in many respects. On many occasions he claimed not to remember what happened or was vague as to events. What is of significance is his evidence that he had left it to the appellant to decide whether to plead guilty.

[40] From the above discussion it is clear that the appellant had previous experience of the court system with the advice and assistance of Mr Bruce. Against that background Mr Bruce was well aware of the need to explain things in a simple way and avoid using long words. Both Mr Ferrie and, more importantly, Mrs Duff clearly had the same awareness. All three took particular care to ensure that the appellant understood what was involved in the decision, which, it was stressed, he had to make. The evidence demonstrated that the appellant did understand what was involved in pleading guilty to the charge of rape of CH and the consequences of the plea. In his evidence he accepted that he went along with the advice of Mrs Duff. We note that the appellant's father was content that the appellant should make the decision on 29 March. On the evidence before us we are not satisfied that it has been demonstrated that the appellant's plea of guilty was tendered under some real error or misconception. The appellant had the benefit of legal advice which, we are satisfied, he understood. There are no exceptional circumstances. For these reasons the appeal falls to be refused.