APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lady Smith Lord Wheatley	[2013] HCJAC 84 Appeal No: XC376/12   OPINION OF THE COURT   delivered by LORD EASSIE   in   APPEAL AGAINST CONVICTION   by   JAVAUGHN GRIFFITH   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: C Mitchell; Paterson Bell

Respondent: Wade AD; Crown Agent

 

17 July 2013

 

Introduction

[1] On 8 May 2012 at a sitting of the High Court of Justiciary in Glasgow the appellant was convicted after trial of a charge of assaulting a shopkeeper in a licensed grocer's shop in Glasgow and of attempting to rob the shopkeeper of what is described in the indictment as " a bottle of alcohol". He appeared along with a co-accused, Calum Macdonald, who was also convicted by verdict of the jury. The date of the offence was 17 August 2011.

[2] One of the witnesses for the prosecution, additional to the shopkeeper, was a 15 year old girl RW. The evidence which she gave is summarised by the trial judge in his report thus:

"As part of the case against each accused the Crown led the evidence of a 15 year old girl called RW. This young girl described being in the company of both accused for most of the afternoon of 17 August. She stated that during the afternoon there had been ongoing discussion between the two accused about robbing the shop, although she did not really provide any details of what had been said. She also spoke of hearing mention being made of guns during the course of the afternoon. She claimed that during the course of a bus journey to the Anniesland area the first accused said, 'we've got guns'. According to Miss W when the three of them arrived outside the locus she was asked to go inside the shop and find out who was working there, which she did. When she came back out and said, "it's an old man", the two accused ran in. Although she used the word 'ran', it was clear from the evidence of the shopkeeper that the youths entered the premises in an unremarkable way."

 

[3] The appellant had tendered a special defence of alibi in advance of the trial. In due course he gave evidence in support of that defence. The appellant's evidence in chief is summarised by the trial judge in these terms:

"The appellant gave evidence in support of his previously intimated special defence of alibi. He denied that he had been one of the persons within the victim's shop, although he accepted that he had been in the company of his co-accused and Miss W up until a short time before the offence. The appellant's evidence was that no mention had been made of any robbery until near to 4.30 pm when he, Calum Macdonald and Miss W were sitting on a wall at Crowe Road. At this point he claimed Miss W said that she knew of a shop which they could rob. She named it and said that there was no CCTV cameras either in the vicinity or within the shop itself. According to the appellant he had responded by saying that he wasn't going to rob a shop. He also said that the co-accused responded by saying that he hadn't come out to rob a shop. The appellant's evidence was that he then got up and left, taking a bus to visit a friend who lived in Kingsway Court. According to him he left the other two sitting at the wall."

The trial judge then notes in his report that in cross examination by the Advocate depute the appellant acknowledged that the suggestion of the co-accused and Miss W meeting another tall Jamaican youth within a few minutes of him leaving them, who then joined in a robbery, sounded rather far- fetched.

[4] Prior to her cross-examination of the appellant, counsel for the co-accused intimated her intention to invoke section 266(4)(c) of the Criminal Procedure (Scotland) Act 1995 - "the 1995 act" -and to cross-examine the appellant respecting his previous convictions, a copy of the schedule of which she had obtained from the trial Advocate depute. Counsel for the co-accused submitted that the evidence given by the appellant contained evidence against the co-accused Calum Macdonald, as that concept had been construed in Gallagher v HM Advocate [2010] HCJAC 30; 2011 JC 201 following the test set out in Murdoch v Taylor [1965] AC 574. She submitted that the appellant had done so in two respects. First, having maintained that he had not been present in the shop, the appellant had thereby disputed that he was the person who made the demands of the shopkeeper, the position of the co-accused being that he had simply been with the appellant in the shop when the appellant had attempted, without warning, to carry out the robbery. Secondly, the appellant had given evidence from which it could be inferred that the co-accused was aware from what he had said had been said by RW of a plan to rob the shop. Counsel for the co-accused further submitted to the trial judge that if, as she was contending, the appellant had thus given evidence against his co-accused, she had a right, which was not moderated by any element of discretion on the part of the trial judge, to cross-examine the appellant respecting all of his previous convictions.

[5] The trial judge upheld those submissions. He held that the test of giving evidence "against" the co-accused was satisfied and in his report to this court the trial judge makes clear that he considered that, once that test was satisfied, he had no discretion as to whether the cross-examination of the appellant on the basis of his previous convictions could be restrained.

[6] The appellant's record of offending included, in particular, a conviction on indictment on 18 October 2010 of three charges of assault and robbery for which he received a custodial sentence of 16 months' detention. In cross-examination it was put to the appellant that he had been convicted before a jury in October 2010 and in response the appellant stated that he had been convicted of four charges of assault and robbery. It was then taken from him that he had been released from his sentence in May 2011; and that he was responsible for the offence in question.

 

The grounds of appeal

[7] Two grounds of appeal were advanced in this appeal.

[8] In short summary the first ground argued was to the effect that the trial judge was in error in thinking that whenever the test of one accused having given evidence against a co-accused was satisfied, the co-accused was entitled to cross-examine him without being subject to any discretionary control by the court. The duty of the court in terms of article 6 of the European Convention on Human Rights to ensure a fair trial reinforced a need to interpret the provisions of section 266(4)(c) as giving the trial judge a measure of discretion sufficient to ensure fairness.

[9] The second ground of appeal, again in summary, is couched as a "quasi Anderson" (Anderson v H M Advocate 1996 J C 29) ground of appeal to the effect that trial counsel failed to advise the appellant, when discussing whether he should give evidence, of the risk that were he to give evidence in support of his plea of alibi his previous convictions might be put before the jury. In response to this ground of appeal trial counsel has with commendable frankness expressed a mea culpa. He regrettably overlooked the terms of section 266 and did not give to the appellant the advice which he ought to have given.

 

The legislation

[10] The terms of what is currently found in section 266(4) of the 1995 Act were originally introduced by section 1 of the Criminal Evidence Act 1898. They include:

"Section 266. - Accused as witness

 

........

 

(4) An accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged, unless -

 

(a)......

 

(b) the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establishing the accused's good character or impugning the character of the complainer, or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution or of the complainer; or

 

(c) the accused has given evidence against any other person charged in the same proceedings."

 

Subsection (5) of section 266 was introduced by section 24(1)(b) of the Criminal Justice (Scotland) Act 1995 and it provides:

"(5) In a case to which paragraph (b) of subsection (4) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that subsection only if the court, on the application of the prosecutor, permits him to do so."

 

 

The first ground of appeal

[11] Counsel for the appellant prefaced her submission by drawing to the court's attention that, by virtue of the entry into force of the Scotland Act 2012 and the Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) SSI 2013/72 on 22 April 2013, the devolution issue with which the first ground of appeal was associated now fell to be treated as a compatibility issue. From her standpoint, that alteration in the law had the consequence that it was no longer necessary to focus on any act of the Lord Advocate in order to raise any question of compatibility with Convention rights. The question now became whether the lower court, as a public body in terms of the Human Rights Act 1998, had acted incompatibly with the appellant's right under article 6 ECHR to a fair trial. We did not understand the advocate depute to dispute this explanation of the practical consequences of the transition from a devolution issue to a compatibility issue.

[12] Turning more particularly to the first ground of appeal, counsel confirmed that she accepted that the evidence given by the appellant in chief did amount to evidence "against" the co-accused in the two respects contended for at the trial by counsel for the co-accused. To that extent, the test set out in section 266(4)(c) of the 1995 Act was satisfied. The essence of the argument to be advanced in respect of this ground of appeal was that satisfaction of that test did not mean that there was no discretion left in the presiding judge to control the extent to which the accused might be cross-examined by counsel for the co-accused on his previous offending. While it was correct that in McCourtney v HM Advocate 1977 JC 68 the court had made reference to there being no discretion in the trial judge once the test was met, it was also important to note that the court there referred to the right being that of cross-examination as to "credit and character" - see page 73 ^3/4. That the legitimacy of any cross-examination should be confined to cross-examination as to credit and character was consistent with what was said by Lord Morris in Murdoch v Taylor (see page 585D-E; 586C). So, submitted counsel, cross-examination of an accused on convictions not relevant only to credit and character but arguably demonstrating propensity to commit crime, or the particular crime charged, was not legitimate. That, in itself, demonstrated that some inherent control on the part of the trial judge existed. But, submitted counsel, if the fairness of the procedure were to be maintained a wider discretion was necessary. In his dissenting speech in Murdoch v Taylor Lord Pierce argued (p587) for the need for some discretion. Lord Donovan at page 592F to 594 similarly canvassed the need for some discretion to remain with the trial judge.

[13] Counsel for the appellant sought support for her argument for a wider discretion from the decision if this court in Barnes v HM Advocate 2000 JC 61; 2000 SCCR 995. In the trial in that case the test of giving evidence against a co-accused had plainly been satisfied, albeit that the satisfaction of that test was achieved by deliberate stratagem on the part of counsel for the co-accused. The judge declined to permit cross-examination by counsel for the co-accused (the appellant in the appeal) and this court had upheld the trial judge's decision in that case. The court rejected the view that the refusal could be justified on the basis that the evidence given was not evidence against the appellant (the co-accused against whom the evidence was given). While the appellate court had discussed matters in terms of the legislative intention as to whether the provisions might be deployed in those circumstances, counsel submitted that in any ultimate analysis the decision in Barnes could be seen as vouching the existence of a discretion on the part of the judge presiding at the trial to disallow cross-examination on the basis of previous offending if that were unfair. An intention on the part of Parliament that the provisions be not used unfairly must carry with it some element of discretion. If the court had that discretion to disallow cross-examination on the ground of unfairness where the accused in question had been "trapped" into giving the evidence against the co-accused by the designs of counsel for the co-accused, there was no reason in principle why that discretion should not similarly be available where an accused was effectively "trapped" into giving evidence in respect of a plea of alibi. Nothing which had been said by the appellant in the present appeal was other than necessary to his defence. Further, on any realistic view, placing before the jury the evidence of the appellant's very recent conviction for three charges of assault and robbery would almost inevitably impress the jury as establishing a propensity to commit such crimes; and it was not truly directed to his probity or honesty, particularly in the situation in which prior to being cross-examined on his previous offending the appellant had freely admitted that in the past he had not always been honest.

[14] Counsel for the appellant further stressed the need, reinforced by the requirements of article 6 ECHR, for a trial judge to have under continuous consideration his responsibility to ensure a fair trial. In his opinion (with which the other members of the court in this respect agree) in Nulty v HM Advocate 2003 JC 140; 2003 SCCR 378; 2003 SLT 761 the Lord Justice-Clerk (Gill) emphasised the continuing nature of a trial judge's responsibility to ensure that the trial was conducted fairly (paragraph 28FF; paragraphs 35 to 37). The duty was imposed by article 6 on a trial judge as a public authority. There was no reason for not regarding that duty - albeit expounded in the context of the admission of hearsay evidence - as being of general application.

[15] Accordingly, it was submitted, the trial judge was in error in thinking that there was no residual discretion open to him.

[16] On the assumption that she was correct in her submission counsel pointed to the following matters as supportive of the view that the discretion should have been exercised in favour of the appellant. The previous conviction was recent and for three directly analogous offences. They showed that the appellant had been released from custody only some three months previously. The conviction for three robberies would inevitably impress the jury as indicating a propensity to commit robbery and thus went far beyond a limited reflection respecting honesty or character and credit. Directions to the jury could do little to reverse that effect. In that context counsel pointed by way of analogy to Platt v HM Advocate 2000 JC 468 which recognised the difficulty of mitigating the consequences of disclosure of prejudicial previous convictions by subsequent direction to the jury. Moreover, while counsel for the co-accused carefully introduced the topic by reference to the appellant's honesty she - skilfully - structured the following cross-examination in a way which channelled the jury into viewing matters in terms of propensity.

[17] In her response to this chapter of the appeal the Advocate depute contended in essence that the legislation allowed no element of discretion in the trial court once the test in section 266(4)(c) of giving evidence against another accused had been satisfied. The other accused, against whom evidence had been given had an unqualified right to cross-examine the accused in question in respect of his previous convictions. The court had so decided in its decision in McCourtney v HM Advocate. The Advocate depute submitted that there was no tension between the decision in McCourtney v HM Advocate and the subsequent decision of the court in Barnes v HM Advocate. In its decision in the latter case the court did not acknowledge a general discretion in the trial court to control cross-examination on previous record. It simply interpreted the statute as meaning that Parliament had not intended that the removal of the protection should take place in circumstances where the giving of the evidence which satisfied the test of being evidence against the accused in question was brought about by deliberate engineering on the part of counsel for the relevant co-accused. To adopt the approach for which counsel for the appellant contended would, in the submission of the advocate depute, be an act of judicial vandalism and be completely counter to the intention of Parliament. The provisions of section 266(5) which, in circumstances where the accused had attacked the probity of prosecution witnesses in terms of section 266(4)(b) made a cross-examination of the accused by the prosecutor subject to the permission of the court demonstrated a legislative intention that the right of a co-accused where the other accused had given evidence against him under section 266(4)(c) should not be subject to any discretionary control by the judge. The concession made by counsel for the appellant in Gallagher v HM Advocate which was noted at paragraph [10] of the Opinion of the Court that, for that reason, no discretion was intended where paragraph (c) of section 266(4) applied was sound. Fairness to the co-accused was important; and any unfairness to the accused giving the evidence in question could be addressed by other safeguards.

 

Discussion - Ground of appeal 1

[18] The legislative provisions which are now to be found in section 266(4)(c) of the 1995 Act have been the source of some expressions of concern to the effect that they may on occasion possibly be productive of injustice. Such concerns were voiced by some of the members of the Judicial Committee in Murdoch v Taylor. In Gallagher v HM Advocate an enlarged bench of this court recognised the dilemma in which an accused with a record of relevant previous convictions may be placed were his position to be one which required him to give evidence in order to support or vouch that position. The view was expressed that the provisions might be worthy of reconsideration by the legislature. As the court also records at paragraph [6] of its opinion, part of the reason (though not the principal reason) for the remit of that appeal to an enlarged bench was a possible challenge to the ruling in McCourtney v HM Advocate that, where section 266(4)(c) of the 1995 Act applied, the trial judge had no discretion to refuse to the co-accused the right to examine the accused as to his criminal record. But in the event that review did not take place since counsel for Gallagher abandoned that aspect of the appeal at the outset. This appeal resurrects the question of the extent, if any, of the trial judge's discretion where the gateway test of an accused's having given evidence against a co-accused is met.

[19] In delivering the opinion of the court in Barnes v HM Advocate, the Lord Justice General (Rodger) explained the background to and rationale of what has come to be section 266(4) of the 1995 Act. Put shortly, when it became possible for an accused to give evidence on his own behalf it was thought necessary that he be protected from the possibility, to which an ordinary witness would be exposed, of being cross-examined as to his honesty or probity by reference to previous criminal convictions . But, were an accused to give evidence against a co-accused, the accused loses that protection and, as it was put in paragraph [17] by the Lord Justice General, "is liable to be treated like any other witness". In principle, fairness to the co-accused adversely affected by the testimony of the accused is a justification for the co-accused's being able to challenge the honesty of the accused in question in the same way as he might challenge the honesty of any other witness by reference to appropriate previous convictions of the witness.

[20] On that analysis, since the accused is simply to be treated as an ordinary witness, the rules which should then apply are those which apply to such a witness. In general, cross-examination of a witness respecting his previous offending is limited- see Walker & Walker on Evidence, (3^rd edition) paragraph 12.9.3; Davidson on Evidence, paragraph 10.59 and cf Dickie v HM Advocate (1897) 24 R (J) 82 . In essence, and leaving aside particular situations such as where, for example, a witness who falsely volunteers that he has never been convicted of any offence , such cross examination of a witness has to be directed to a criminal conviction demonstrating earlier dishonesty or lack of probity. The purpose and function of the cross examination is to lay a basis for a contention which may be advanced to the jury or other fact finder that the witness' testimony should be distrusted on account of that earlier established dishonesty. That limitation is no doubt founded in the principle that evidence should be restricted not only to that which is otherwise admissible but which is also relevant. The trial judge must therefore have, as was acknowledged in Murdoch v Taylor, particularly by Lord Morris at p.585, power to control the relevancy of the evidence sought to be adduced by the questioning of an accused witness respecting his previous offending. In other words, also in this particular area, the judge has the power and a duty to rule on an objection by one party to the proceedings to the effect that the questioning which another party seeks to pursue is directed to eliciting evidence of the existence of a previous conviction of the witness which is irrelevant as being evidence respecting a conviction other than a conviction from which an inference of previous dishonesty may properly be drawn.

[21] We observe at this point that, in the context of the operation of section 266(4) of the 1995 Act, there may have developed a view that, once an accused has given evidence "against" a co-accused in the sense in which that notion has been settled in Murdoch v Taylor and Gallagher v HM Advocate, the entirety of his previous convictions may be put to him in cross-examination irrespective whether they may be relevant as going to his credibility or probity or not. That appears to have occurred at the trial in the case of Gallagher v H M Advocate - see paragraph [5] of the reported opinion of the court. On that approach evidence would be introduced which might otherwise be inadmissible against an accused, whether as an accused or whether against an accused as a witness, as irrelevant evidence showing simply an earlier propensity to commit crime.

[22] Counsel for the appellant pointed out that in expressing the view that, where an accused had given evidence against a co-accused, the trial judge had no discretion to disallow cross examination, the court in McCourtney v H M Advocate referred to the right to cross examine as being one respecting cross examination as to credit and character. In that case the previous convictions invoked by counsel for the co-accused were all crimes of dishonesty. So they fell within the accepted view of convictions which might relevantly and properly be put to a witness as reflecting on his honesty. The reference by the court in McCourtney v H M Advocate to the right to cross examine being cross examination as to credit and character is, we think, consistent with the analysis which we have sought to set out. But counsel for the appellant in the present appeal sought to draw from the reference in the opinion of the court to cross examination as to credit and character the proposition that there must therefore exist a measure of general, judicial discretion in this area. However, in our view, neither (i) the fact that a judge has the essential power and function of ruling on objections as to the relevance of the evidence sought to be adduced - in this area, by questions directed to the witness' previous offending- nor (ii) the fact that so ruling may, on occasion, involve some measure of judgment or appréciation of the proper nature and import of the previous conviction, means that in that area a trial judge has a further, wider or general discretion to exclude relevant, admissible evidence respecting previous convictions importing dishonesty.

[23] In this appeal one is concerned only with a previous conviction for three charges of assault and robbery. The robbery element in each charge brings that conviction within the ambit of the conventional view of offences connoting dishonesty which may be put by way of cross-examination of a witness. While acknowledging that conventional view, counsel for the appellant submitted that in reality the introduction of evidence of that previous conviction respecting three charges of assault and robbery could not be confined to the limited aspect of the dishonesty involved; it introduced highly prejudicial aspects in the form of evidence of propensity to commit such crimes. We recognise that, at least in the absence of clear jury directions to the contrary, the notion that a jury may view a previous conviction as going beyond a reflection on the worth or credit of the accused's testimony is difficult to discount where the accused is charged with a similar offence of dishonesty. So counsel for the appellant was effectively constrained to argue for the existence of a wider power of judicial control than that which might be seen as being based upon the relevancy of the previous offending as reflecting essentially on the credit and probity of the accused qua witness, the existence of which had been negated in McCourtney v H M Advocate.

[24] Counsel sought support for the recognition of such a wider discretion in Barnes v HM Advocate, which occupied a central role in her submission. It may be noted that in that appeal the Crown, with the consent of the appellant, had invited the convening of a larger court to reconsider McCourtney v HM Advocate, but in the event modified that view. The court disposed of the appeal in Barnes v HM Advocate on the basis that Parliament could not have intended the protection to an accused giving evidence to be lost where the giving of evidence "against" the other accused had been engineered by counsel for that other accused. Counsel for the appellant submitted that, while thus expressed as a matter of legislative intention, the practical implication was the existence of at least some measure of discretion in the trial judge flowing from the circumstances of the case and the conduct of the trial to exclude the operation of section 266(4)(c) in the interests of the fairness of the trial proceedings.

[25] While we appreciate the efforts of counsel for the appellant to analyse the decision in Barnes v H M Advocate as connoting the existence of such a discretion, we are unable to read the terms of the opinion of the court in Barnes v H M Advocate as giving any recognition to the existence of any element of discretion to refuse cross examination of the accused witness respecting relevant previous convictions reflecting on his honesty or credit where the gateway test of having given evidence against the co-accused has legitimately been met. The basis of the decision appears to us to be that where the accused has not given evidence against the co-accused, but is thereafter deliberately obligated by cross examination by counsel for the co-accused to give evidence against the co-accused whom that counsel represents, for the wholly ulterior motive of bringing out a previous record of criminal offending, the accused cannot be said, on a proper interpretation of the statute to come within the notion of his having "given" evidence against the co-accused. In that respect we refer in particular to paragraph [23] of the opinion in which the Lord Justice General expressed the view that the interpretation of the then prevailing provision was to the effect that it was not "intended to confer a right to cross-examine on a co-accused whose counsel deliberately forced the accused to give evidence against the co-accused with the avowed purpose of putting himself in a position to exercise that right and thereby damage the credibility and reliability of the accused". We are therefore unable to find in Barnes v H M Advocate any of the support which counsel sought to draw from that decision.

[26] It is also necessary to have regard to the fact that in section 266(5) of the 1995 Act the legislation now provides for the prosecutor's requiring the permission of the court to cross-examine an accused who has forfeited protection by virtue of giving evidence in terms of paragraph (b) of section 266(4). We agree with counsel for the appellant to the extent that the existence of that requirement for the prosecutor's having to obtain leave to cross examine does not mean, conversely, that the absence of any equivalent leave requirement in the case of cross examination by counsel for a co-accused (where paragraph (c) of that subsection applies) has the consequence that the co-accused is released from any of the ordinary limitations on cross examining a witness which we have endeavoured to describe; and that the co-accused thus enjoys "open season" to explore the entirety of the other accused's criminal history. In enacting section 266(5) Parliament may well - indeed must - have intended that even otherwise admissible questions directed to relevant previous convictions inferring dishonesty on the part of an accused should be subject to judicial control where the prosecutor is the party seeking to advance that line. However, as was accepted by counsel for the appellant in Gallagher v HM Advocate, and underscored by the Advocate depute in her submissions before us, the existence of this provision, confined to control of the prosecutor's power to pursue a line of ex hypothesi relevant questioning, points against a legislative intention that relevant cross examination by a co-accused directed to the probity of the accused witness' testimony by reference to previous convictions inferring dishonesty should also be subject to the granting of leave.

[27] In these circumstances we have come to the conclusion that where the gateway test is genuinely met, as opposed to having been deliberately engineered by counsel for the co-accused, as in Barnes v H M Advocate, the statute does not confer on the court any discretion to disallow relevant questions which are properly directed to adducing evidence only of convictions importing dishonesty.

[28] Nor, on that analysis, do we see any unfairness which invokes article 6 ECHR, giving rise to a compatibility issue which has any real substance . Counsel for the appellant properly volunteered that there was no basis in the Convention or the decisions of European Court of Human Rights in Strasbourg upon which it could be said that disclosure to a jury of a previous conviction in itself rendered the criminal proceedings unfair. And, as the Advocate depute pointed out, fairness in the criminal process embraces fairness to the co-accused. In our view, if an accused gives evidence which properly meets the gateway test of having given evidence against a co-accused, fairness to the co-accused may readily call for the co-accused's having all the normal rights of cross examination available against any ordinary witness testifying against him.

[29] Finally, on this chapter of the appeal, we note that, even were the trial judge to have had the discretionary power for which the appellant contends, it is clear that for the reasons which the trial judge sets out in the final paragraph of his report he would not have been minded to exercise any such discretion favourably to the appellant. We, for our part, are unable to detect any flaw in the trial judge's exposition of how he would have exercised that discretion which would have allowed us to intervene. The exposition involves among other things the giving of directions to the jury on the limited use which a jury may make of evidence of relevant previous convictions and such directions were given.

[30] For these reasons we have concluded that the first ground of appeal is unsound. We are not persuaded that, on what we see as a proper analysis of the scope for cross examination by a co-accused of an accused who has, without being engineered into doing so by counsel for the co-accused's posing questions deliberately seeking evidence against his client - such as that which occurred in Barnes v HM Advocate, there is any good reason for thinking that the decision in McCourtney v H M Advocate proceeded upon an erroneous interpretation of the then prevailing, but essentially the same as now prevailing, legislation. We therefore decline the invitation to remit this appeal to a larger bench to review that decision. That is not to say that we should, in any way, be taken as dissociating ourselves from the view that the legislative provisions may merit re-consideration, particularly respecting the gateway test.

 

The second ground of appeal

[31] The submissions advanced in respect of this chapter of the appeal were in relatively short compass. In summary, while counsel for the appellant described this ground as a type of "Anderson" appeal, she accepted that it could not be said that the appellant's instructed defence of alibi was not properly put to the jury. She also accepted that in advancing that defence to the jury, trial counsel did indeed seek to reduce or ameliorate the damage to the appellant's defence wrought by the evidence adduced in cross examination by the co-accused of his previous conviction. But the appellant had not been given appropriate advice by his trial counsel, as that counsel frankly conceded. So, it was submitted, the appellant's decision to give evidence was not a properly informed decision and the proceedings were unfair on that account.

[32] For her part, the Advocate depute submitted, very shortly, that the test in Anderson v H M Advocate for an appeal on the basis of defective presentation of an accused's defence could not be met. The defence of alibi was plainly presented. Its presentation required the appellant's giving evidence in its support. Had he not given evidence, his trial counsel would have required to jettison the defence of alibi.

[33] In considering these submissions we begin with the fact that the underlying rationale - and indeed the scope- of an appeal on the basis of defective representation which was recognised in Anderson v H M Advocate is that, because of the professional failures of those acting for the accused in the presentation of the case, the accused's defence was not presented to the jury (or, in summary procedure, the judicial fact-finder); hence the proceedings were unfair. But as counsel for the appellant properly recognised, it cannot be said in the present case that the appellant's instructed defence was not advanced, since it plainly was. The matter is presented as being one of the appellant's having been deprived of taking an informed decision as to whether to give evidence in support of his pleaded defence by reason of the defective advice of his trial counsel.

[34] While the argument for the appellant proceeds on the failure of counsel at the trial to advise the appellant prior to his giving evidence of the risk of being cross examined on the basis of his record of offending, it may be commented that in a sense the seeds of the problem were sown earlier in the preparation for the trial. Nothing is said in the ground of appeal - or was said to us by counsel for the appellant- to the effect that those acting for and advising the appellant were not alert at the time of lodging the special defence of alibi to the potential problems which might ensue from that special defence, which required, or was likely to require, the appellant to give evidence if the defence were to be maintained and substantiated.

[35] At the trial diet, the horns of the dilemma which was inherent in the decision to lodge a special defence of alibi had no doubt become much sharper horns. But a decision whether to give evidence had to be taken. Counsel for the appellant therefore understandably analysed the issue in terms of the appellant's not having been able to take an informed decision. However, even assuming that it were ever appropriate for the court to examine, in the context of an appeal against conviction, the soundness of advice given to an accused on the wisdom of following a particular defence presented to the trial court or of giving evidence in support of that defence, nothing was offered as to the course which might have been pursued by the appellant if appropriately informed. As counsel for the appellant recognised, were the appellant not to have given evidence, the special defence of alibi, which had been read out to the jury, could not be maintained by counsel in his presentation to the jury of the defence case. Counsel for the appellant did not submit that, had the appellant not given evidence, the state or nature of the evidence adduced by the prosecutor was such that there was any reasonable possibility that the jury would not have found the case against the appellant proved to the requisite standard.

[36] On that basis we have come to the view that, irrespective of the wider aspects which it might involve, the second ground of appeal also fails.

 

Outcome

[37] The conclusion to which the court has come is that this appeal against conviction fails and must be refused.