Complainer: Taylor, Solicitor Advocate; Gilfedder & McInnes (For Rollo

Davidson McFarlane, Solicitors, Cupar)

Respondent: Stewart, QC, AD; Crown Agent

9 January 2013

Introduction

[1] The complainer in this Bill of Suspension was served with a summary complaint which charged her and her sister with assaulting a woman in St Andrews on 2 April 2011, grabbing her by the hair, pushing her to the ground and repeatedly punching her on the face to her injury. Both the complainer and her co-accused appeared at Cupar Sheriff Court on 1 September 2011 and tendered pleas of not guilty. An intermediate diet was fixed for 27 October 2011; at this diet the complainer adhered to her plea of not guilty, and the case was continued for a further intermediate diet on 17 November 2011 to allow disclosure of evidence, in particular CCTV evidence, to the defence.

[2] The CCTV evidence was disclosed by the Crown to the complainer's solicitor on 14 November 2011. Between that date and the intermediate diet on 17 November 2011 the complainer's solicitor viewed the CCTV evidence, but the complainer herself did not see it nor did she have an opportunity to have a full consultation with her solicitor. On the morning of 17 November 2011 the complainer spoke with her solicitor outside court. Her solicitor gave her his account and interpretation of the CCTV evidence and advised her that it was consistent with a plea of guilty. On this basis, and still not having seen the CCTV evidence herself, the complainer agreed to tender a plea of guilty to the charge under deletion of the words "grab her by the hair", on the understanding that the Crown would accept a plea of not guilty from the complainer's sister.

[3] The complainer did indeed plead guilty to the amended charge, and the Crown accepted her sister's plea of not guilty. The sheriff adjourned the case in order to obtain reports.

[4] During the afternoon of 17 November 2011 the complainer telephoned her solicitor and told him that she wished to meet with him because she was unhappy with what had happened earlier. On 22 November 2011 the complainer consulted with her solicitor and, for the first time, saw the CCTV evidence. She watched it several times and disagreed with the interpretation that it was consistent with her guilt of this offence. She took the view that the CCTV evidence was consistent with the position which she had adopted throughout, namely that the complainer in the charge, Danielle Coutts, had been the aggressor against both her and her sister, and that the complainer (ie Sumi Blockley) had acted in self-defence to defend herself and her sister. Consistent with this position, a special defence of self-defence had been lodged on her behalf. She told her solicitor that she wished to withdraw her plea of guilty, and he told her that he could no longer represent her.

[5] When the case next called on 15 December 2011 the complainer's agents intimated to court that they were withdrawing from acting on behalf of the complainer, and the case was adjourned to 26 January 2012. On that date the complainer was represented by new solicitors, who moved the court to allow the plea of guilty previously tendered to be withdrawn. The diet was continued to 16 February 2012, and again to 8 March 2012 when the sheriff heard further submissions on the motion to withdraw the plea of guilty previously tendered. Having considered those submissions, the sheriff refused the motion; he proceeded to hear the Crown narrative and a plea in mitigation, and thereafter sentenced the complainer.

[6] In this Bill of Suspension the complainer seeks suspension of her conviction and sentence.

Procedure
[7] Before reaching his decision on 8 March 2012 the sheriff had before him a report from Mr Alan Davie, the solicitor who acted on behalf of the complainer in this matter from 1 September to 22 November 2011. When the Bill came before this court on 7 August 2012, the court had before it that report, together with reports from the sheriff. However, the court considered that an evidential hearing would be required regarding the circumstances in which the complainer tendered her plea of guilty on 17 November 2011, and continued consideration of the Bill for that purpose. A hearing was later fixed, at which the court heard evidence from the complainer and Mr Davie, and submissions on behalf of the complainer and the Crown.

The evidence
[8] The complainer was aged 26 and lived in St Monans. She had never been accused of committing any offence before the present case, and had never given evidence in court. After the incident on 2 April 2011, later that evening, the complainer spoke to the police. She was not detained, but several days later she was told to attend at the police station for interview. In due course she was served with the summary complaint in this matter. On 1 September 2011 she went to court with her mother, and they met Mr Davie for the first time. She had spoken to him by telephone before being interviewed by the police in April 2011, and had explained to him then her position about the incident and that she had been acting in self-defence; however, she had never met Mr Davie before 1 September 2011. On that date she had a very quick discussion with him, which was principally concerned with her legal aid details, and lasted about two minutes. Mr Davie then tendered a plea of not guilty on her behalf.

[9] The complainer met Mr Davie next on 27 October 2011, just before the case called for intermediate diet. Again, their discussion was very short, and Mr Davie was principally concerned with going over the complainer's legal aid form. There was no discussion about the case, or about the evidence potentially available for the Crown or the defence. The complainer was not shown any statements. Her mother was with her on this occasion as well. The case was continued again until 17 November 2011 to enable Mr Davie to receive CCTV evidence. In the corridor outside the court after the intermediate hearing, Mr Davie told the complainer's mother not to bother coming to court on 17 November, as it would just be a short procedural hearing like those on 1 September and 27 October. The complainer's mother accordingly did not accompany the complainer to court on 17 November.

[10] Before the diet of 17 November, the complainer received a letter from Mr Davie asking her to come to his office to view the CCTV evidence. She telephoned him to try to arrange a meeting for this purpose, but in the short time available before the hearing on 17 November it proved impossible to find a time which was convenient to both Mr Davie and the complainer.

[11] The complainer attended at court on 17 November and met Mr Davie in the corridor outside the courtroom. Mr Davie told her that he had other cases in court and could not spend long with her. He told her that he had watched the CCTV footage and that the court would see it as above and beyond self-defence. She could not remember whether he used the words "the court will not see it as self-defence" or "the court could not see it as self-defence." At this time she had not seen the CCTV evidence, nor had she seen any witness statements. Mr Davie did tell her that he had a statement from Danielle Coutts which was against her, and that there were statements from other potential witnesses who were against her, but he did not go through the statements with her nor did he allow her to read them herself. She kept telling him "I didn't do it, I didn't do it", but he told her that the court might see it the other way, and also she would get a 25% discount on her sentence if she pleaded guilty, and her sister would get off. The complainer stated that she was nearly in tears and didn't have anyone with her to support her; there were lots of other people in the corridor, and Mr Davie was leaning against a windowsill. He suggested that pleading guilty was her best option, to which she said "I didn't do that so how can I plead guilty"; he said that the charge would be changed. She felt rushed; Mr Davie said that she had to be quick about it as he had to be in court soon. She said "Ok, fine". She did not remember signing anything or writing anything. The whole discussion with Mr Davie took ten minutes at most. She did not discuss her plea with her sister before she tendered it. The sheriff asked her if she was pleading guilty, and she stated that she was.

[12] After her appearance in court she did not discuss anything with Mr Davie, but went straight to work. She explained to her workmates that she did not like what had happened. Shortly after 4pm she telephoned Mr Davie and told him that she was unhappy and wanted to see him. She went to see him a few days later, accompanied by her boyfriend and her sister. They watched the CCTV evidence, and replayed it a few times, and she then asked Mr Davie why did he get her to plead guilty. At that time she did not look at the witness statements; she only saw these in the week before she gave evidence in the Bill of Suspension proceedings.

[13] When the complainer was interviewed by the police some days after 2 April 2011, she indicated that she wished to press charges against Danielle Coutts for assaulting her in the incident. Both the complainer and her sister telephoned PC Aitken, both before and after 17 November 2011, to enquire about progress with the prosecution of Danielle Coutts, but PC Aitken was not helpful. Eventually the complainer made a complaint to Fife Constabulary that the incident on 2 April 2011 had not been fully investigated by the reporting officer and that he did not trace and interview four persons who had been identified to him as witnesses. On 13 February 2012 the Area Chief Inspector for North East Fife wrote to the complainer finding her complaint to be substantiated and that disciplinary action would be taken against PC Aitken.

[14] The complainer was taken through the CCTV footage in the course of her evidence. She maintained her position that she did not assault Danielle Coutts, that such involvement as she had in the incident shown on CCTV was limited to acting in self-defence on her own behalf and on behalf of her sister, and that nothing in the CCTV footage undermined this.

[15] Mr Alan Davie had been a practising solicitor for approximately the last ten years, his experience being principally in criminal defence work. He remembered that the complainer was originally placed on petition in this matter, but that proceedings were reduced to summary proceedings on 1 September 2011. He did not remember giving advice to the complainer by telephone before she was interviewed by the police. He remembered being provided with several witness statements by the Crown in relation to this matter and that some precognitions were taken from other potential witnesses on behalf of his firm. The complainer's position regarding this incident was that it was started by a girl called Sarah Conway and a group of her friends including Danielle Coutts, who were the aggressors. The complainer's position was that she acted in self-defence of her sister. Mr Davie agreed that the fact that Danielle Coutts had a previous conviction for assault, and that the complainer had no previous convictions at all, was something that he would be interested in for the purpose of a defence of self-defence. He also agreed that there were elements in the witness statements and precognitions which might tend to support that defence. In particular, there were passages in the precognitions of Danielle Coutts and Kim McGrory and the witness statements of Sarah Conway and Alistair Miller which tended to support the complainer's position.

[16] At the intermediate diet on 27 October 2011 Mr Davie intimated to the Court that the complainer adhered to her plea of not guilty and her special defence of self-defence. On that date he was provided with CCTV footage of the incident by the Crown, but it was in a format which he could not access, and he was unable to view it. He stated that he would be surprised if he spoke to the complainer at length on 27 October - it was a very busy court, and he had other cases to deal with. A further intermediate diet was fixed in this case for 17 November 2011 to enable a copy of the CCTV footage in viewable format to be disclosed.

[17] Mr Davie received a copy of the CCTV footage a few days before 17 November 2011 and viewed it. He had no further consultation with the complainer between 27 October and 17 November. On 17 November, there was some discussion between the procurator fiscal depute and Mr Davie as to the possibility of the case being resolved by a plea. He did not expect the case to resolve in this way, and expected it to proceed to trial, but he put the offer from the Crown to the complainer. He told the complainer that in his view, her actions could not be deemed to be in self-defence of her sister, and that if she tendered a plea of guilty she would receive a discounted sentence and her sister's plea of not guilty would be accepted. This discussion with the complainer took place in the corridor outside the court; he estimated the length of this discussion at between 10 and 20 minutes, but he could be wrong. The complainer had not seen the CCTV footage at this time, nor had she seen the witness statements or precognitions before that day, although Mr Davie thought that she would have seen the statements "to some degree" during the course of the discussion in the corridor outside the court on 17 November. He could not remember how the complainer reacted to his advice; if she had been clear that she did not accept her guilt, he would not have tendered a plea of guilty.

[18] The complainer came to Mr Davie's office in the following week, and after she had seen the CCTV footage, she indicated that she wanted to change her plea.

[19] Mr Davie accepted that it would have been better if the complainer had seen the CCTV footage before a plea of guilty was tendered on her behalf. Asked if he accepted that it was an error on his part to allow her to plead guilty without seeing the CCTV evidence, he accepted that it would have been better for her to see the CCTV evidence, and better for her to go to trial. He did not think that he asked her to sign anything to say that she wished to plead guilty - this was not commonly his practice, although he had adopted it on occasions in the past when he was instructed to tender a plea about which he felt uncomfortable. He accepted that it would have been better if the complainer had had the opportunity to see and consider in some depth the disclosure statements, and he accepted that some of these were supportive of the complainer's position. The statements and precognitions, taken together with the CCTV evidence, were certainly not conclusive evidence of the complainer's guilt. The CCTV evidence was played to Mr Davie, and he agreed that it was not conclusive, that it was possible that Danielle Coutts went for the complainer and not vice versa, and that Sarah Conway behaved aggressively on more than one occasion during the incident. The evidence could be consistent with a defence of self-defence.

[20] It was put to Mr Davie, that having regard to the complainer's lack of experience of court matters, her lack of any previous convictions, the absence of any family members or supporters to advise her, her consistent position of self-defence, and the inconsistencies and lack of certainty in the evidence, that he made an error in allowing her to tender a plea of guilty on 17 November. He stated that, on reflection, he would rather that she had not tendered a plea of guilty on that day, although he was not sure that he had made an error. It was put to him that he should have sought a further adjournment, or if necessary awaited a trial diet, and ensured that the complainer saw the CCTV evidence and the statements and precognitions before she tendered a plea of guilty; he stated that on reflection that would have been preferable, although there were advantages to tendering a plea of guilty at the intermediate diet by way of discounted sentence and her sister's plea of not guilty being accepted. He agreed that he had not discussed with the complainer before the plea of guilty was tendered how easy (or difficult) it would be to withdraw a plea of guilty, once tendered.

Submissions
[21] Mr Taylor on behalf of the complainer pointed out that the sheriff, when refusing to allow the plea of guilty to be withdrawn, had much less evidence before him than was before this court. He had no evidence from witnesses, he had not seen precognitions or disclosure statements, and had not seen the CCTV evidence. He accepted that the court is generally reluctant to allow a plea of guilty to be withdrawn, particularly where an accused is legally represented, because of the concern that an attempt to withdraw a plea of guilty is motivated by unhappiness with the sentence imposed. However, he submitted that this was not such a case: the complainer had telephoned her solicitor on the same day that the plea of guilty was tendered to express her concerns, and she confirmed her unhappiness with the plea of guilty when she saw the CCTV footage in his offices some days later. This was long before she was sentenced. If the court were to be concerned that the Crown had accepted the complainer's sister's plea of not guilty in reliance on the complainer's plea, he suggested that there was an absence of evidence of the complainer's sister assaulting Danielle Coutts, and it was always most unlikely that the Crown would secure a conviction against the sister on this charge.

[22] Mr Taylor accepted that a plea of guilty could only be withdrawn in exceptional circumstances. He identified three examples of the application of this proposition: (1) where a plea of guilty was tendered without authority, by mistake; (2) where a plea of guilty was tendered in error, the accused being in significant error as to what he/she was pleading guilty to; and (3) where a plea of guilty was tendered in circumstances which were clearly prejudicial to the accused (eg coercion or undue pressure). Reference was made to Gallagher v HMA [2010] HCJAC 46, 2010 SCCR 636 and Reedie v HMA [2005] HCJAC 55, 2005 SCCR 407. Given that the intermediate diet on 17 November 2011 was six days before the trial diet, Mr Davie should have sought a further intermediate diet, or continued to maintain the plea of not guilty until the trial diet, or sought discharge of the trial diet. Although the plea of guilty was tendered on 17 November 2011 with authority, there was an error. Although the complainer understood what she was doing, there was an error in the tenor of the legal advice she was given. There were significant question marks about the evidence available, which included material which supported an acquittal; notwithstanding this, the advice which Mr Davie gave was unequivocal. Accordingly, the complainer was in receipt of advice which was not well-founded. In any event, the circumstances were clearly prejudicial to the complainer. This case was analogous to Gallagher. Mr Taylor invited us to pass the Bill.

[23] The advocate depute submitted that there was very little scope for withdrawing a plea of guilty tendered on legal advice and on the instructions of the accused. Reference was made to Reedie; Healy v HMA 1990 SCCR 110; and Pickett v HMA [2007] HCJAC 47, 2008 SLT 319. This was not a case in which the plea had been tendered in error; at most, it was tendered in circumstances which were prejudicial to the accused. However, this case fell to be distinguished from Gallagher in three respects - (1) in Gallagher the solicitor's advice was tendered on the pavement outside the court. This was clearly inappropriate. A corridor within the court building was quite different - it was common practice for discussions such as this to occur in a corridor, under pressure of time, before an intermediate diet; (2) it appeared that there were two letters sent to the complainer asking her to make contact with Mr Davie to consider the evidence; that was not equivalent to a situation in which there was no opportunity to discuss until the last minute; and (3) there was no threat in the present case that if the complainer did not plead guilty she would have to represent herself. In all the circumstances, this court should refuse to pass the Bill. On the other hand, if we were minded to pass the Bill, we were invited to quash the sheriff's decision and remit to the sheriff to proceed as accords.

Discussion
[24] The occasions on which an accused person will be permitted to withdraw a plea of guilty will be few and far between, and only in exceptional circumstances. It is worthwhile repeating the observations of this court in Reedie v HMA (at paragraph [11]):

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

[25] The Lord Justice Clerk repeated those views in Gallagher v HMA (at paragraph [15], and reiterated that in view of the conclusive nature of a plea of guilty, the court will allow it to be withdrawn only in exceptional circumstances. However, it is clear from the facts in Gallagher that the giving of hurried advice to an accused, without the accused having a proper opportunity to consider the implications of the step that she was being pressed to take, may amount to circumstances that are so clearly prejudicial to the accused as to amount to exceptional circumstances.

[26] We have reached the view that such exceptional circumstances exist in the present case. From the outset, the complainer had maintained her position that she was innocent of this charge, and that such involvement as she had in the incident on 2 April 2011 was in self-defence of her sister. She maintained this position throughout the period from 1 September until 17 November 2011. At the continued intermediate diet on 17 November 2011 she was without any supporter such as her mother or other member of her family. She had no previous experience of court procedures; she had neither been charged with, nor convicted of, any offence until these proceedings. She had not had the opportunity to view the CCTV evidence, nor had she seen precognitions or witness statements. Until 17 November 2011, the only occasion on which she discussed this case with her solicitor after she had been charged was a short discussion before court on 27 October 2011, when she made it clear to him that she wished to plead not guilty and that she had acted in self-defence. There were no discussions between 27 October and 17 November 2011. The next occasion on which any discussion took place between the complainer and her solicitor was in the corridor outside court shortly before the continued intermediate diet on 17 November 2011. This was the first time that any mention was made of a plea of guilty. Her solicitor had viewed the CCTV evidence and had in his possession such witness statements and precognitions as existed. In terms of his report to the sheriff, the advice which he gave her at this time was clear - "I advised her that in my view, in this situation, her actions could not be deemed to be in self-defence of her sister".

[27] We regard that advice as overstating the position by a considerable margin. The CCTV evidence which we viewed was certainly not conclusive of the complainer's guilt, and might be regarded as consistent with self-defence. Similarly, there were important discrepancies in the witness statements and precognitions, including several passages which might be seen to support the view that the complainer was not the aggressor in this matter and that such involvement as she had was in self-defence of her sister. Indeed, Mr Davie accepted in evidence before us that on reflection he would rather that the complainer had not tendered a plea of guilty that day, and that on reflection it would have been preferable for her to have refrained from tendering a plea of guilty at least until after she had seen the CCTV evidence and had had an opportunity to read and consider the various witness statements and precognitions which were available. We share that view.

[28] The advocate depute sought to distinguish this case from Gallagher v HMA. Whilst each case must depend on its own facts and circumstances, there are important points of similarity between the present case and that of Gallagher. Although it is correct that there is nothing in the present case to suggest that the complainer was told that if she did not plead guilty she would be left to represent herself, we are not persuaded by the two other distinctions which the advocate depute sought to draw between this case and that of Gallagher. The advice in Gallagher was given on a pavement outside the court building, whereas the advice in the present case was given in a corridor outside the courtroom; we do not consider that much, if anything, turns on this distinction. There was no evidence to indicate that Mr Davie wrote a letter to the complainer after he received a viewable copy of the CCTV evidence on about 14 November 2011. The important features in the present case appeared to us to be the complainer's complete lack of previous experience of the court system, the absence of any family member or other supporter on 17 November 2011, the fact that the complainer had not viewed the CCTV evidence nor had she had an opportunity to see and consider the terms of the witness statements and precognitions which were available, the nature of the advice tendered to her in light of the whole contents of the CCTV and the witness statements, and the fact that the advice was tendered to her outside court and under pressure of time, without it being explained to her that she did not require to make a decision there and then, and without any explanation as to how difficult it might be to seek to withdraw a plea of guilty once tendered.

[29] We reiterate that the court will allow a plea of guilty to be withdrawn only in exceptional circumstances. However, taking all of these factors cumulatively, we consider that such exceptional circumstances exist in the present case. We are not persuaded that this is properly categorised as a case of error, but we are persuaded that the circumstances (which we hope will be unusual) are such as to amount to clear prejudice to the complainer.

[30] We shall accordingly suspend the conviction and subsequent sentence of the sheriff. In all the circumstances, including the fact that the complainer has completed a portion of the unpaid work element of the community payback order imposed on her, we do not consider that it is appropriate to remit to the sheriff to proceed as accords. We shall grant the Bill simpliciter.