Appellant: A Ogg, sol adv; Paterson Bell Ltd

Respondent: Wade QC, AD; Crown Agent

13 May 2014

[1] On 19 June 2013 the appellant was convicted by the sheriff at Dingwall after trial on a summary complaint of contravening section 2 of the Road Traffic Act 1988. The terms of the charge were:

"on 25th July 2012 on a road or other public place, namely A9 Scrabster to Inverness public road at North Kessock you...did drive a mechanically propelled vehicle namely motor lorry registered number YJ04 TUH dangerously and did tow another motor lorry by means of a solid metal bar which was inadequately secured and the towed vehicle was generally unsafe and unroadworthy with inter alia no brakes, no power steering and numerous other serious defects:"

[2] The appeal is by stated case. The only matter which the application for the stated case seeks to bring under review are certain deficiencies said to have been present in the representation of the appellant by the solicitor acting for him in his defence of the prosecution.

[3] In summary three criticisms are made of the solicitor. First, it is said that he failed to obtain from the appellant sufficient details of his defence, in particular, technical information relating to the state of the vehicles in question. Secondly, the solicitor is criticised for not having tendered as a witness a Mr Thomas McDonald who, as an experienced transport manager for a haulage firm with extensive practical knowledge of freight road vehicles and their recovery, could have given skilled witness evidence in support of the appellant's position. Thirdly, the solicitor ought not to have advised the appellant that he should not give evidence.

[4] The background to the offence which was charged is that on 25 July 2012 the appellant, along with his son, drove in a DAF lorry YJ 04 TUH from their homes in Fife to Poolewe. The purpose of the journey was to collect two other lorries which were in a state of disrepair and which the appellant had bought on the internet for spare parts. For the return journey to Fife, one of the two lorries which he had purchased was loaded on to the platform of the DAF and secured there. The other lorry was a relatively old Mercedes, registered number D840 YRS. It was hitched up to the rear of the DAF lorry by means of a straight metal towing bar, in order that it be towed behind the DAF lorry for the return journey to Fife.

[5] On that return journey the appellant drove the DAF lorry. His son - who also appeared on the same summary complaint and was convicted of a separate charge of contravening section 2 of the Road Traffic Act 1988[1] - was in the driver's seat of the Mercedes lorry which was being towed.

[6] Having driven over from Wester Ross to the A9 road, the combination of the two vehicles came to the attention of two police officers in a police car as the combination left the Tore roundabout heading southwards. What apparently attracted the attention of the officers was the evident state of disrepair of the towed vehicle, that is to say the Mercedes. The police caught up with the combination - which was travelling on the dual carriageway of the A9 at about 40 miles per hour near North Kessock - and signalled to the appellant and his son to follow them to a yard operated by the Vehicle and Operator Services Agency - "VOSA" - in Longman Road, Inverness. The police car and the lorries then proceeded in convoy to Inverness.

[7] At the Longman Road yard the towing vehicle, namely the DAF lorry driven by the appellant, was inspected by two officials of VOSA. No defects whatever were found in that vehicle. But, not surprisingly, since the very reason for its being towed was that it was in a state of disrepair, a number of defects were identified in the Mercedes lorry which, as already mentioned was being recovered essentially for its value for spare parts and for scrap. Many of the defects in the Mercedes lorry are of no relevance since the essence of the charge against the appellant - and that against his son - is that the towing arrangement was unsafe.

[8] While the terms of the charge libelled against the appellant might ideally have been libelled more clearly, they identify the three respects in which the Crown contended that the arrangements were unsafe. In reverse order, they are (i) that the towed vehicle lacked power assistance for its steering; (ii) that the towed vehicle had no functioning brakes; and (iii) that the arrangements for securing the metal towing bar were inadequate. In his evidence to this court the solicitor who acted for the appellant in the sheriff court, Mr Neil Wilson, of Ferguson and Wilson, Inverness, was clear that he understood the nature of the contention being advanced by the Crown, having discussed the case early in the course of its procedure with the procurator fiscal.

[9] As regards the first and second of those respects, the evidence of the prosecution witnesses - who comprised the two police officers and the two VOSA officials - was to the effect that, since the towed Mercedes lorry had no electrical battery, its engine could not be started. Thus, it was said, there could be no provision of the necessary pressures generated by the engine to provide power assisted steering or to provide braking. As regards the third aspect, while the use of a straight, steel bar was agreed by the police officers to be appropriate over a short distance, as an emergency measure, it was not, in their view, suitable for extended towing; and, moreover, the arrangements deployed did not adequately secure the towing bar where it connected to the towing vehicle with the consequence that, particularly in the event of the leading vehicle having to brake sharply, the trailer lorry, since it could not brake, might swing out to either side.

[9] While the appellant did not give evidence at the trial, his son, Mr Young junior, who was not legally represented, did. Among other things, Mr Young junior gave evidence that the Mercedes vehicle had been jump started (by putting it into gear while it was being towed) which meant that the engine was running sufficiently to provide power enabling operation of the footbrake and to provide power assistance for the steering. The towbar arrangement was a normal towing arrangement for the recovery of vehicles and no issue had been taken with that towing arrangement by the VOSA officials. However, in the event, the sheriff rejected the evidence which had been given by Mr Young junior. She preferred the conflicting evidence given by the prosecution witnesses.

[10] In light of the nature of the appeal it is necessary to say something about the procedural history, much of which is not in dispute.

[11] On receipt of the summary complaint both the appellant and his son tendered, for the initial diet on 6 December 2012, letters pleading not guilty to the charges. On that date an intermediate diet was fixed for 17 January 2013 with a trial diet set down for 15 February 2013. The appellant then consulted a solicitor in Kirkcaldy, Miss Sally McKenzie, who, since the defender sought legal aid, advised that she could not undertake defended summary proceedings in Dingwall and that a local agent would be required. She referred the appellant to Mr Neil Wilson and following a telephone conversation with Mr Wilson she sent him, under cover of a letter dated 9 January 2013 advising of the diets which had been fixed, a copy of the summary complaint. On 10 January 2013 Mr Wilson wrote to the appellant stating that he should contact his firm as a matter of urgency. On 14 January 2013 Mr Wilson had a telephone conversation with the appellant in which brief details of the defence were discussed. The file note kept for legal aid accounting purposes records information given regarding the respective weights of the towing lorry and the towed lorry but is somewhat enigmatic in its reference to brakes and steering. However, at that point Mr Wilson's concern was to ascertain, for the purposes of applying for legal aid, that the appellant considered he had a defence. In his evidence the appellant agreed that that was the solicitor's concern at that stage. Having consulted the electronic online legal aid application Mr Wilson was able to advise this court that it referred specifically to the existence of the solid bar towing arrangement and the appellant's position being that it provided a safe towing mechanism.

[12] For the intermediate diet on 17 January 2013 Mr Wilson instructed another local solicitor, Mr Craig Wood, to attend with a request that Mr Wood obtain the appellant's signature to the legal aid application form and supporting documentation which the appellant was to bring. At that diet the case was continued to a further intermediate diet on 31 January 2013. The requisite signature and documentation for legal aid purposes were provided by the appellant. On 28 January 2013 Mr Wilson wrote to the appellant. Among other things he advised (i) that the appellant should attend the intermediate diet 30 minutes early to enable discussion of matters; (ii) that the legal aid application had been lodged; (iii) that he had sought disclosure of the Crown case. He also wrote: "to enable us to prepare your defence you should advise us of the names and addresses and if possible telephone numbers of any witnesses for the defence". In the event, the appellant was, for good reason, unable to attend the intermediate diet on 31 January 2013, when the case was simply continued to the trial diet of 15 February 2013. On the following day, 1 February 2013, Mr Wilson wrote to the appellant advising that the case had been so continued and that, so far, nothing had been heard from the Scottish Legal Aid Board.

[13] The trial did not proceed on the then prevailing trial date of 15 February 2013. The interlocutor records that the case was adjourned in respect that "accused unable to attend due to weather and travel difficulties and in respect that an essential Crown witness was absent". A further intermediate diet was fixed for 28 February 2013 with a trial diet on 15 March 2013. The appellant was present at the intermediate diet which took place on 28 February 2013 and on that occasion he and Mr Wilson met for the first time and were able to discuss the case. When the case next called at the trial diet on 15 March 2013 the trial was adjourned on the unopposed motion of the co‑accused, Mr Young Junior, who being no longer legally represented wished to seek fresh representation. A further intermediate and trial diet were fixed for 9 May and 22 May 2013 respectively. The appellant and Mr Wilson had a further discussion at the intermediate diet on 15 March 2013 and Mr Wilson's legal aid file note for that diet notes, in manuscript, the name address and telephone number of Mr Thomas McDonald.

[14] On Monday 18 March 2013 Mr Wilson wrote to Mr McDonald enclosing a copy of the statement from the principal VOSA witness respecting the vehicles. He asked Mr McDonald to read it and thereafter to telephone him to discuss the matter. Mr McDonald did not respond. Being unable himself to attend the further intermediate diet on 9 May 2013, Mr Wilson instructed the public defence solicitor in Inverness to attend in his stead. In his letter to the solicitor Mr Wilson wrote

"..as you will see from the file, Mr Young had given us the details of a potential defence witness, namely a Mr Thomas McDonald. We have written to him asking that he get in touch with us in order that we can take a statement from him, but have received no reply. Please impress upon Mr Young that we need his potential defence witness to get in touch with us immediately if we are to cite him to attend the court."

By letter of 13 May the public defence solicitor reported to Mr Wilson that the case had been continued to the trial diet and that the appellant had been "reminded that his defence witness should contact you immediately."

[15] Mr McDonald did not make contact with Mr Wilson prior to the morning of the trial diet on 22 May 2013 when he attended in Dingwall along with the appellant. He had a discussion with Mr Wilson, to which we shall revert. In the event, the Crown case was not completed on 22 May and the sheriff adjourned the trial to 19 June 2013. On that date the fourth and final witness for the prosecution was heard; Mr Young junior gave evidence; and submissions were made to the sheriff who thereafter gave her decision convicting both the appellant and Mr Young junior.

[16] With that general exposition of matters we turn now to the first respect in which it is contended that the appellant was inadequately represented, namely that his solicitor failed to obtain sufficient details of the defence to enable the appellant's defence to be put to the court.

[17] In the course of his evidence to this court the appellant was asked by Miss Ogg about various technical matters. In our view it is not necessary to rehearse that evidence in every detail. The principal thrust of the evidence from the appellant was that the Crown's evidence that the engine of the Mercedes lorry could not be started for want of a battery was erroneous. In the case of a lorry of this type of Mercedes - which was of some age - the engine could be started by the simple expedient of engaging third gear while the vehicle was in motion (i.e. when being towed by the DAF lorry). That was what Mr Young Junior did, there being some fuel in the fuel tank. Once the engine had been started in that way, and the engine was running, it operated a compressor which provided, in a reservoir, the necessary pressures to provide braking power and assistance for the steering which, in any event, could still be operated simply with ordinary, unassisted manual movement of the steering wheel. As respects the use of the steel towbar the appellant's position, in summary, was that this was a standard method of recovering vehicles; the respective weights of the towing and towed vehicle were such that there was no risk of sideways movement; and, if it was safe to use for a short distance, it was safe to use for a longer distance.

[18] The appellant agreed that on the first occasion on which he met Mr Wilson, namely at the intermediate diet on 28 February 2013, Mr Wilson did ask him about various matters. Mr Wilson's particular concern was with the braking and steering arrangements in the Mercedes lorry. The appellant accepted in his evidence that he had basically told Mr Wilson what he had told this court. But in response thereafter to a question from Miss Ogg whether he had gone into as full detail as he had done in his evidence to the court the appellant maintained that in 10 minutes or so one could not do that. But he had set out his general position to Mr Wilson.

[19] For his part, when Mr Wilson gave evidence he indicated - as has already been mentioned - that his understanding of the Crown case was that it was concerned with the safety of the towing arrangements, in particular the absence of power assistance for the steering and the absence of braking capacity in the Mercedes lorry as well as the appropriateness of the use of a straight towing bar and its arrangements of attachment to the DAF lorry. His understanding of the appellant's position was that by his son's putting the towed Mercedes lorry into third gear while under motion a limited amount of power would be provided which would enable power assistance for the steering and some braking capability. He cross‑examined the Crown witnesses on that basis but they simply did not accept that the engine of the Mercedes lorry could be started. As to the towing arrangements, he was aware from the outset that the appellant's position was that the straight steel bar was a safe towing mechanism and that a "V-chuck bar" was on the towing vehicle which prevented undesired movement. He had advanced that matter in cross‑examination of the prosecution witnesses also.

[20] There was, as between Miss Ogg and the Advocate depute, no dispute as to the legal criteria applicable in an appeal against conviction based on what is termed an "Anderson" ground of appeal, namely, of defective presentation of the defence case. Miss Ogg reminded us of the very recent résumé delivered in paragraphs 31‑34 by the same bench as that hearing the present appeal in Robson v HM Advocate [2014] HCJAC 8. We were also taken to the earlier decisions upon which that digest proceeds and while emphasis was placed by Miss Ogg on the overriding question whether the accused had received a fair trial it was not suggested that the present appeal raised any variant on what has been so often stated in Anderson appeals.

[21] As was observed by the Lord Justice Clerk (Gill) in Woodside v HM Advocate 2009 SCCR 350; 2009 SLT 371; 2009 SCL 578, an appeal on "Anderson" grounds is not "a performance appraisal". The test required that there be a complete failure to present the accused's defence either because the solicitor or counsel wholly disregarded the client's instruction as to the nature of his defence or because he conducted the defence in a manner in which no reasonably competent practitioner could have conducted it. Applying that approach, as we are bound to do, it is plain that the criticism advanced under the first branch of the appeal must fail. While it may well be that in an ideal world a solicitor in the position of Mr Wilson might have spent considerably more time discussing various technical matters with the appellant, we are satisfied that the nature of the defence which the appellant instructed was explained to and appreciated by Mr Wilson. We accept his evidence that he put these matters to the Crown witnesses. Moreover, in his evidence Mr Young junior spoke both to the vehicle having been jump started and to its thus having had working brakes and power assistance for the steering and also to the towing bar arrangement being a normal method as respects which the VOSA officials took no issue at the time. In these circumstances we are satisfied that the defence instructed by the appellant was placed before the court. It is not a basis for an "Anderson" appeal founding on a failure to advance a defence that, especially with hindsight, a more detailed inquiry of the accused and the topic might have permitted the instructed defence to have been more forcefully or persuasively advanced than it was in fact advanced.

[22] We turn now to the second branch of the complaint of defective representation, namely Mr Wilson's decision not to call Mr McDonald as a witness.

[23] That decision is prefaced in the application for the stated case by a criticism that Mr Wilson failed to obtain a statement from Mr McDonald in advance of the trial diet on 22 May 2013. In so far as that criticism is still advanced we do not regard it as well‑founded. The appellant was alerted by his solicitor's letter of 28 January 2013 as to the need to advise the particulars of any potential defence witnesses. He did not immediately respond; and, as we understood his evidence, the appellant did not himself approach Mr McDonald. Only at the diet on 15 March 2013 did he give to Mr Wilson any particulars of Mr McDonald. Mr Wilson immediately wrote to Mr McDonald at the address given, sensibly enclosing the VOSA report which Mr McDonald would necessarily have to consider before he could express any potentially useful view. Mr McDonald did not respond. A reminder was given to the appellant at the intermediate diet on 9 May. The only response to that was the appearance of Mr McDonald on the morning of the trial diet on 22 May 2013.

[24] In those circumstances, at best, the criticism distils to a suggestion that more might have been done to "chase up" Mr McDonald. It has however to be borne in mind that one is concerned with a legally aided summary level prosecution; it was not suggested that Mr McDonald was in the situation of a professional expert witness who might normally be expected to respond immediately to such correspondence; and, since the witness would plainly require to consider the VOSA materials, the initial approach by letter was plainly sound. Again we would observe that a defective representation appeal is not a "performance appraisal". No evidence was led of professional practice in this situation. But, importantly, contact with Mr McDonald was eventually made. We therefore find nothing in this preliminary chapter which is of relevance or of substance and the focus must turn to the evidence respecting the contact between Mr Wilson and Mr McDonald on the morning of the trial diet on 22 May 2013.

[25] In the written response from Mr Wilson sought following the lodging of this appeal by way of stated case Mr Wilson says, among other things, respecting his discussions with Mr McDonald on the morning of 22 May 2013:

"We then had an opportunity of speaking with this potential defence witness, Mr Thomas McDonald. He was unequivocal in stating to us that nothing he could say would be of any help to Mr Young or his co‑accused. His exact words, as we recall, were 'VOSA (Vehicle Operator Services Agency) have got the pair of them banged to rights this time.' If the appellant was under the illusion that Mr McDonald would have anything helpful to say in his defence, we can only assume that what Mr McDonald told us was something very different to what he had told the appellant. Nonetheless we only had what he had told us to go on, and given that he was unequivocal in stating to us what Mr Young, and indeed his co‑accused, were doing was dangerous, we did not think it appropriate to call him as a witness. "

Mr Wilson maintained that position in his oral evidence to this court.

[26] For his part, Mr McDonald denied ever having used such an expression in his discussions with Mr Wilson. According to Mr McDonald, what he said to Mr Wilson, as noted by this court, was that it was "quite a delicate case because VOSA are involved and you cannot say that they don't know their job." Mr McDonald went on to say that he did not wish it to be construed by Mr Wilson that he knew better than VOSA.

[27] In the light of that testimony from Mr McDonald we do not consider it necessary to resolve the conflict between Mr McDonald and Mr Wilson as to the precise words which were deployed by the former. Even assuming the accuracy of Mr McDonald's version, it is evident that Mr Wilson was entitled to conclude that Mr McDonald was not likely to be able to assist the appellant; and indeed by his acceptance of the superior knowledge of the VOSA officials, might damage the appellant's position by giving evidence in support of what was being said by the witnesses for the Crown.

[28] In these circumstances we conclude that the second branch of the claimed defective representation advanced in the application for the stated case also fails to meet the test required for defective representation in an Anderson appeal.

[29] We now turn to the third ground, namely the soundness of the advice given by Mr Wilson to the appellant that he should not give evidence.

[30] The basis upon which Mr Wilson counselled the appellant that he should not give evidence was that the crucial questions related to the extent of the control which Mr Young junior could exercise by way of braking and steering the towed Mercedes vehicle. These were matters respecting which the best evidence could only come from Mr Young junior, who was at the driving seat of the Mercedes lorry. Since Mr Wilson knew that Mr Young junior intended to give evidence, there was little advantage in the appellant giving evidence himself. On the contrary there was a considerable disadvantage in that contradictions or inconsistencies might very well emerge between the evidence of the appellant and his son. Miss Ogg pointed to what she submitted was a flaw in that reasoning in the respect that Mr Young junior - the second named accused on the summary complaint - might, in the event, elect not to give evidence. However, in our view that is an entirely theoretical possibility which of course did not realise and of which Mr Wilson had to form a judgment. In his evidence to us Mr Wilson described the decision whether to advise the appellant to give evidence as a "judgement call". We entirely agree with that description. It was thus in the nature of a decision which is not susceptible to an "Anderson" appeal. But in any event, we find no reason to think that Mr Wilson did other than exercise a sound judgment.

[31] For all of these reasons we have concluded that this appeal fails. We therefore answer the singular question posed in the stated case in the negative.