Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 82

HCA/2014-003112XC

Lady Dorrian

Lord Bracadale

Lord Drummond Young

OPINION OF THE COURT

delivered by LADY DORRIAN

in

APPEAL AGAINST CONVICTION

by

AHMAD YAZDANPARAST

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

 

Appellant:  Stewart QC, Forrest;  Faculty Appeals Unit (for Rhodes & Co, Dundee)

Respondent:  Niven Smith AD;  Crown Agent

 

8 September 2015

[1]        The appellant was convicted in June 2014 of the murder of his wife on 12 October 2013 by pouring petrol or a similar substance over her, and igniting it.  The libel also averred that he had previously evinced malice and ill will towards her.  At the time of the incident the parties had been engaged in acrimonious divorce proceedings. 

[2]        There was a strong circumstantial case against the appellant.  He was seen filling a container with petrol on the morning in question before going to the takeaway business operated by him, which he entered carrying a holdall.  Those premises were directly above the premises operated by the deceased as a beauty salon.  At about 11.30 that morning he was seen throwing large pieces of paper outside the premises.  These were later found to contain messages which related to allegations of his wife’s adultery, his belief that a named individual was her paramour, and other messages which the trial judged described as indicating a clear theme of anger at his wife’s alleged adultery.  One card read “Women empowerment in the UK = man empowerment in Afghanistan”.  The appellant was seen to walk into the salon carrying a container in his left hand.  Shortly afterwards, a noise was heard and the appellant was seen to emerge from the salon and collapse on the pavement.  It was clear that there was a fire in the salon.  Asked what had caused the fire, the appellant stated “petrol”.  A cigarette lighter was lying beside the appellant.  Two components of the lighter were missing.  Two identical components were recovered from close to the seat of the fire.  The deceased suffered injuries which were not survivable, but before succumbing to them, she was able to indicate that it was her husband who had done this to her, and that he had thrown acid and petrol over her.  She said it was because she divorced him.  Petrol was detected on the jeans, jacket and shoes of the appellant.  There was evidence that the fire had been started deliberately and that the actual seat of the fire was the deceased herself.  Her injuries were consistent with the explanation which she had given.  In relation to the latter part of the libel, evidence was led of threats made by the appellant to the deceased, including a threat to pour acid on her face and numerous threats to kill her. 

[3]        The appellant’s position at trial was that he had previously purchased petrol, at the request of his wife, and he had placed it beside the gas cooker in the shop in case she came for it. 

[4]        On the day in question, he had gone to the salon at the deceased’s request, to take her some milk, and she had thrown at him a sponge or similar item doused in petrol.  He heard a sound, saw a flame and shouted “get out”.  The lighter was not his, and if he had said “petrol” to the passer-by he must have been confused. 

[5]        Three grounds of appeal were advanced on his behalf:  (1) defective representation in the preparation for trial;  (2) defective representation in the conduct of the trial;  and (3) defective representation consisting in a restriction in his ability to select appropriate representation.  The appellant was represented at trial by Mr Belmonte, solicitor advocate, a partner in the firm of Belmonte and Co;  assisted by Mr Tait, solicitor advocate, a partner in the firm of Capital Defence Lawyers.  They were both instructed by Mr Mannifield, an associate in the firm of Belmonte & Co. 

 

Defective representation in the conduct of the trial
[6]        Crown reports having been produced indicating that the appellant was sane and fit to plead, and that he was not, and had not been, suffering from a mental disorder or illness which might have diminished his responsibility, no such plea was advanced on his behalf prior to the trial, and no medical evidence in support of such a plea was led.  At various preliminary hearings it was made clear to the court that no such plea was to be advanced.  The cross examination of witnesses was all directed to supporting a defence of accident/

self-defence.  Three witnesses were led for the defence, in addition to the appellant.  One of these was Mr Rodger Ridley, Crown witness number 21, a mental health social worker to whom the appellant had been referred.  At the close of the defence case, Mr Belmonte argued that the evidence of Mr Ridley was sufficient to raise the question of diminished responsibility, and to allow that plea to be argued before the jury.  The trial judge disagreed, and refused to allow the point to be advanced.  Mr Ridley had been careful not to offer any opinion as to the mental state of the appellant, or to offer any suggestion of a diagnosis and there was no evidence that he had any experience or expertise in identifying or categorising mental illness or abnormality.  He described certain symptoms which he from time to time had observed, but clearly deferred to the medical profession as to the significance of these.  The trial judge nevertheless specifically required to direct the jury to that effect, however, because Mr Belmonte made reference to the mental state of the appellant in his speech to the jury. 

[7]        It was submitted that those acting for the appellant failed adequately to investigate his state of mind prior to trial, both in relation to his fitness for trial and his fitness at the time of the index offence.  In fact, the ground was only advanced in respect of the second of these matters, on the basis that there was available prior to trial a body of material to suggest that in the period leading to the offence the appellant was suffering from a disturbed mental state sufficient to suggest that at the time of the offence his responsibility was diminished.  The evidence relied upon included evidence that he had formed a view that he was the victim of a conspiracy between his wife and a man whom he alleged was her paramour, evidence of emotional upset on the part of the appellant relating to his matrimonial situation, including evidence of Mr Rodger Ridley and a medical report lodged by the Crown from Dr David Cumming which identified that the appellant might potentially be suffering from a mental disorder.  The cards scattered by the appellant might be considered to be of a bizarre and irrational character.  There was a witness who was not called – Kairn Campbell – who might have spoken to coming across the appellant in 2012, alone, shouting about his marital problems, which was important because it could counter concerns that there was a degree of contrivance in the appellant’s presentation. 

[8]        It was said that in light of this evidence those representing the appellant should have instructed a defence psychiatric report.  The report which they did obtain, from Dr Jacqueline Law, a psychologist, related only to and the appellant’s vulnerability as a witness and was not sufficient.  It was not enough for the defence to proceed on the basis of a further report lodged by the crown, this time from Dr Douglas Gray, indicating that there was no mental disorder present.  There was no basis for considering this report to be definitive. 

[9]        However, this argument does not give sufficient weight to the circumstances in which the report was obtained from Dr Gray, nor to its content.  During a period when the appellant was remanded for further enquiry, questions were raised as to his mental health, and he was referred to Dr Cumming, a psychiatrist with Forth Valley Health Board.  His report concluded that the appellant “... may be attempting to feign a mental disorder or may indeed be suffering from a mental disorder”.  He concluded that it would be appropriate for the appellant to be made subject to an assessment order, so that his condition might fully be appraised.  Such an order was made, and on 8 November 2013 he was transferred to the State Hospital for assessment.  The report produced by Dr Gray, dated 2 December 2013, was thus based on an assessment of the appellant carried out over the period from his admission to the State Hospital, with input over that period from a multi-disciplinary team, who had access to the appellant’s medical records, and who interviewed him several times, as well as observing him within the hospital.  It is apparent from the contents of the report that they also had access to certain information from Mr Ridley, perhaps contained within the medical records.  The conclusions reached after this period of assessment were that the appellant did not suffer from a mental illness, mental disorder, or a personality disorder, either at the time of the offence or at the time of assessment.  It is quite clear that the report considered the question of diminished responsibility as well as that of fitness to plead. 

The report was unequivocal in its terms:  

“Systematic enquiries failed to reveal evidence of any formal thought disorder and he voiced no thoughts of harm to himself or others.  There was no evidence of abnormal perceptions at interview. 

 

Since his admission Mr Yazdanparast has displayed no convincing signs that he has a major mental disorder.  It is also worth noting that he does not appear to experience any obvious distress faced with the fact that his wife is now deceased and he has been charged with her murder

 

To date, no convincing evidence has arisen suggesting that he has a personality disorder.”

 

[10]      The conclusions of the report were equally unequivocal:  “It is clear that he does not suffer from a major mental illness, in particular a psychotic disorder”. 

[11]      The report went on to say:  

“... there is no evidence that underlying mental illness of personality disorder had a bearing on his behaviour at the time the alleged offence occurred.  There is nothing to indicate that responsibility for his behaviour at the time of the alleged offence occurred was diminished.”

 

[12]      In light of these circumstances it cannot be said that the mental state of the appellant was not fully and properly addressed and considered prior to trial.  Those representing the appellant were entitled to conclude that Dr Gray’s report, in such clear and unequivocal terms, and following examination and assessment in the State Hospital for a number of weeks, could be viewed as definitive.  There was no requirement upon them to take further action.  (DS v HMA 2008 SCCR 929 paragraphs 53, 54.)  We note from the case and argument that there was also available to them material from other medial sources which were in general terms supportive of the conclusions reached by the State Hospital team.  The GP was of the view that shows of emotion which he had noted were related to the breakdown of the appellant’s marriage, and there was available a report from Dr Frenschock indicating that the appellant was in possession of his full mental capacities.  The report which the defence obtained from Dr Law was for very different purposes:  they were concerned that the appellant’s emotional state might render him vulnerable as a witness, and sought a report to ascertain whether any special measures required to be put in place.  That was a perfectly proper and appropriate step for them to take. 

[13]      The matter is made slightly more complicated by the fact that at the conclusion of the defence case Mr Belmote sought permission to argue diminished responsibility on the basis of the evidence of Mr Ridley.  It is not disputed in this appeal that the trial judge was correct to conclude that the evidence of Mr Ridley did not provide a basis for a plea of diminished responsibility.  Nor is it suggested that there has ever been in existence evidence which did form such a basis.  Nevertheless, purely on the basis of Mr Ridley’s evidence, such an argument was advanced.  The reason given for this is, to say the least, surprising.  Both Mr Belmonte and Mr Tait recognise that there was a definitive medical conclusion that the appellant was not suffering from any condition which might have supported a plea of diminished responsibility.  According to Mr Tait: 

“... the only basis upon which the submission was based was evidence of the appellant’s behaviour as spoken to by witnesses, in particular the evidence of Crown witness 21 Rodger Ridley”.

 

[14]      According to Mr Belmonte: 

“I was content to accept the State Hospital’s findings following on residential observation, examination and diagnosis as definitive.  There was in my view no basis for which a plea in bar of trial or as a defence could be put forward nor was there any basis prior to the trial to advance a plea of diminished responsibility.  I merely put it to the trial judge at the end of the evidence following a discussion with the appellant who indicated that if wrongly convicted he wanted to go back to the State Hospital after the trial because he preferred their surroundings to the regime in prison.” (Emphasis added.)

 

This seems to suggest that Mr Belmonte advanced a plea for which he was satisfied that there was no proper evidential basis.  The soundness of such a course of action may be questioned on ethical grounds, but, in circumstances where it is clear that the mental state of the appellant had been fully and properly canvassed in advance of the trial, and where there is no suggestion that matters had changed in the course of the trial, it cannot support the ground of appeal advanced in this case.  The suggestion that the defence might have sought desertion of the proceedings pro loco et tempore to make further inquiry of the appellant’s mental health is without merit.

[15]      In any event, there was no material before us which would enable us to conclude that the information available from Mr Ridley, or indeed any other source, might have supported a plea of diminished responsibility.  The issue was advanced on a purely speculative basis.  That will not do.  In a situation such as this, before the court could be satisfied that the appellant’s defence was not put before the jury, it would require to have material from which it could conclude that there was such a defence available.  Without such material it would be impossible for the court to conclude that there had been a miscarriage of justice.  The appellant’s position was that of accident/self-defence, and a defence of those lines was fully advanced during the course of the trial.  It is conjecture to suggest that there might have been the possibility for another line to be advanced.  An appeal on such a basis cannot succeed.  (Lindsay v HMA 2008 JC 310 paragraphs 18, 19.) 

 

Defective representation in the conduct of the trial
[16]      This ground of appeal relates to the leading of evidence that the appellant had a previous conviction for assaulting his wife.  The grounds of appeal indicate that the appellant’s instructions were not sought prior to the eliciting of this evidence, and his affidavit alleges that doing so was “... directly contrary to my instruction”.  That allegation is contradicted by the Anderson responses from both Mr Belmonte and Mr Tait.  Mr Tait indicates that the appellant specifically instructed the matter to be brought out at trial, as part of the defence that he had been subjected to a campaign of harassment and false allegation by his wife.  The potential consequences of doing so were discussed with him, but he remained firm on the point.  Mr Belmonte’s response is largely to the same effect.  He indicates that the defence was predicated upon this alleged campaign, culminating in the claim by the appellant that it had been his wife who had produced a petrol-soaked item and thrown it at him, in circumstances where her own acts had rebounded upon her.  The series of alleged false allegations, of which the accusation of assault was one, was thus an essential part of the defence presentation.  The matter was discussed with the appellant and brought out with his agreement.  There is some support for this in the report from the trial judge, who indicates that the conviction was mentioned as part of the line that the appellant had been harassed by the deceased and that she had manipulated various situations at the end of their marriage.  The trial judge narrates that:  “Far from seeming reluctant that this matter be before the jury, the appellant gave evidence about his version of the incident that led to the conviction.”  Accordingly, we do not consider that there is any merit in this ground of appeal. 

 

Defective representation consisting in a restriction in his ability to select appropriate representation
[17]      This ground of appeal could only succeed as an adjunct to a successful appeal based on defective representation as to the merits of a case.  Given that both substantive grounds in this case have failed, it follows that this ground cannot be sustained.  As was explained in Addison v HMA 2014 SLT 995 by the Lord Justice General: 

“[15]    An Anderson ground relates to the competence of the defence and not to the status or the identity of the defender.  Being represented by counsel who is not of his choice, or being represented by a solicitor advocate rather than by counsel, is not per se prejudicial to an accused person's interests.  In a case of this kind the appellant must demonstrate that there was a complete failure to present his defence because his defender, whether counsel or solicitor advocate, disregarded his instructions or conducted the defence as no competent practitioner could reasonably have conducted it ( Woodside v HM Advocate at 2009 S.C.C.R., p.355, para.45;  cf.  McBrearty v HM Advocate ;  Grant v HM Advocate , supra;  S v HM Advocate ). 

 

[16]      To plead a relevant ground of appeal in this case the appellant must set out facts and circumstances that are capable of establishing that his solicitor advocates' conduct of the defence failed to display the standard that would have been professed by a competent practitioner.”

 

Nevertheless, it is appropriate that we make some comment on the issue, standing the observations made by this court both in Addison and Woodside v HMA 2009 SLT 371. 

[18]      On his arrest, the appellant consulted Mr George Pollock, solicitor, who had been representing him in the divorce proceedings.  According to the appellant’s affidavit, Mr Pollock: 

“... told me that Mr Belmonte of Belmonte and Company in Edinburgh was a Q.C. and that I could give my instruction to him because my own solicitor was not able to appear in the High Court.  His assistant was a Mr Mannifield.”

 

He added: 

 

“It was my solicitor George Pollock of Pollock and Somerville who put me on to these people and didn’t tell me that I could choose someone else and they didn’t either.”

 

The clear implication, positively asserted in the grounds of appeal, is that Mr Pollock conveyed this advice in person. 

[19]      In his Anderson response, Mr Pollock indicated as follows: 

“I confirm that I recommended the firm of Belmonte & Co to the accused.  The accused had intimated through the Police that he wished me to act on his behalf.  I did not speak to the accused directly.  I advised the Police that for my own reasons I was not prepared to accept instructions but to tell the accused that I would arrange for a firm of solicitors to attend upon him and he could instruct them or any other firm that he so wished.  Thereafter I arranged that Belmonte & Co visit the accused in custody to ascertain his instructions.  It follows from the above that I made no recommendations to the accused either directly or indirectly as to whether that firm should act simply as Solicitors or offer Solicitor Advocate services.  The recommendation to the firm was based upon their prior experience and reputation.  It will be clear from the foregoing that having had no discussion directly with the accused, there was no discussion at all with respect to representation by Queen’s Counsel or otherwise.” 

 

The appellant’s assertions in his grounds of appeal and affidavit are thus not supported by Mr Pollock.  As can be seen from the other responses, mentioned below, it seems to have been the belief of those instructed that a recommendation had been made by Mr Pollock in person, but it appears that such a belief probably came from the appellant.  Without hearing evidence, we cannot attempt to resolve the conflict over the way in which the introduction was made, nor need we do so, since this ground of appeal cannot succeed in isolation.  It would seem unlikely that Mr Pollock, whom we know to be a solicitor advocate, would have suggested that he did not have the requisite right of audience.  The exact terms in which Mr Pollock’s message might have been conveyed are not clear, but there is obvious scope for information transmitted through third parties to be inaccurately reported. 

[20]      The right of an accused person, in particular in a murder case, to make a fully informed decision in relation to representation at his trial is a very important one.  As Lord Nimmo Smith put it in Woodside (paragraph 88): 

“… art 6 of the European Convention on Human Rights gives rise to re-examination of many arrangements relating to criminal trials.  Paragraph 3 of that article provides that everyone charged with a criminal offence has certain minimum rights, including the right to defend himself in person or through legal assistance of his own choosing.  Any such choice, to be effective, must be fully informed and based on objective advice directed to the best interests of the accused, not those of his legal representatives, and must demonstrably be so.  It is to be hoped that the relevant rules will be re-examined to ensure that this fundamental requirement is met.”

 

The court has repeatedly emphasised the importance of a free and informed choice being made by someone facing serious charges, and in particular the most serious charge of murder:  see for example Woodside per LJC (Gill) paragraph 67.  It is very aptly put by Lord Brodie in Addison at paragraph 41: 

“Much is at stake for an accused person facing a charge of murder.  In the event of conviction only one sentence is available to the court and that is imprisonment for life.  That is the context in which such an accused's undoubted right to representation by counsel in the High Court is to be understood, by reference to long practice as reinforced by the terms of the relevant legal aid regulations, as comprehending a right to choose to be represented by Queen's Counsel.  Queen's Counsel may be a member of the Faculty of Advocates.  He may be a solicitor advocate.”

 

We have real concerns in this case about whether this obligation was properly met.  These concerns arise from the terms of the Anderson responses received in the case. 

[21]      In a response dated 18 February 2015, Mr Mannifield stated as follows: 

“The appellant came to be represented by Belmonte & Company as a result of the recommendation of his former solicitor, Mr George Pollock.  From the outset, he expressed his wish that Mr Belmonte should represent him as trial counsel.  This appeared to be a wish that was formed by him prior to his becoming a client of the firm.  As a consequence of this expressed wish, Mr Belmonte accepted instructions as senior counsel.  He is a senior solicitor advocate with experience of conducting murder trials.  Proper consideration is always given to who should be instructed in a case.  Full and due regard is given to the wishes of the client.  Appropriate information is given to them.  In this case Mr Yazdanparast – from the outset – asked that Mr Belmonte be instructed on his behalf.  At no stage was he advised by anyone within the firm that Mr Belmonte is Queen’s Counsel.  At no stage did the appellant ask Mr Belmonte if he needed another counsel to assist with the preparation of his trial.”  (Again, the emphasis is ours.) 

 

A number of points may be made about this response.  In the first place, there is an apparent confusion between the position of “counsel” and that of “solicitor advocate”.  As has been explained elsewhere, (see Addison paragraphs 22, 36 and 44) these are terms which are not inter-changeable.  In the second place, allied to that confusion is Mr Mannifield’s belief that Mr Belmonte was accepting instructions as “senior counsel”.  That is, of course, entirely inaccurate.  The term “senior counsel” refers to a Queen’s Counsel (whether counsel or a solicitor advocate), a rank which is not held by Mr Belmonte.  Third, there is the use of the term “senior solicitor advocate” as if this were a term of art referring to the status of the individual appearing before the court.  It is not:  it is a term which has no meaning beyond the feeing provisions of the Scottish Legal Aid Board.  Finally, the response is wholly inadequate as it contains no information relating to (a) the nature of the consideration given to the question of whom to instruct;  or (b) the information provided to the appellant.  What is to be expected in such a situation is clearly set out by the Lord Justice General in Addison. 

[22]      Some similar issues arise from the terms of the response issued by Mr Cameron Tait.  That response was submitted with his letter of 16 February 2015, and it contains the same inappropriate use of the terms “Senior Counsel” and “Junior Counsel”.  It states, incorrectly, (emphasis added) that: 

“Mr Belmonte was instructed as Senior Counsel with myself, Cameron Tait, Solicitor Advocate as Junior Counsel ...”

 

The response goes on to explain that there came a point in the trial when the appellant wished hearsay evidence to be led:   

“At which juncture, it was clearly explained to the appellant that, should he no longer wish to instruct his Counsel and solicitors and should he wish to seek alternative representation, he could do so …  the appellant was insistent that both his solicitor and Counsel continue to represent his interests and … he accepted the advice of his solicitor and Counsel.”  

 

Mr Belmonte’s response was submitted by note dated 11 May 2015.  In it, he is careful to maintain the correct distinction between solicitor advocate and counsel, and in particular, Queen’s Counsel, although he does use the misleading term “senior solicitor advocate”, use of which was criticised in Addison. 

[23]      Subsequent to receipt of this response, the court gave Mr Mannifield and Mr Tait an opportunity to make further comment in relation to it.  A further response from Mr Mannifield was received dated 9 June 2015.  In this response he addresses many of the deficiencies of his earlier response, and indicates that it was made clear to the appellant that he had a choice, that this choice included members of the Faculty of Advocates and solicitor advocates, and: 

“that a senior solicitor advocate or senior counsel could be instructed for him.  At every stage he indicated that he particularly desired Mr Belmonte to conduct his trial.  … Mr Belmonte took particular trouble to explain to the appellant that he was a senior solicitor advocate rather than a Q.C.” 

 

He refers to Mr Belmonte being recommended by Mr Pollock as a “senior solicitor advocate”. 

[24]      In Woodside the court had occasion to comment upon the use of the term “senior solicitor advocate”.  The Lord Justice Clerk noted that unlike the situation where junior and senior counsel are instructed, the concept of seniority does not apply in the case of solicitor advocates, where there is no concept of seniority other than for the purpose of charging fees.  Lord Brodie pointed out that the indiscriminate use of the term “senior solicitor advocate”, a term which has no distinct meaning save for feeing purposes, can lead to confusion.  In paragraph 44 he noted: 

“There is scope for confusion.  Accordingly, if an accused's person's right in respect of representation is to be given proper effect the information provided to him by the instructing solicitor must be clear and unambiguous.  That leads me to voice a concern over the circumstances in which the term ‘Senior Solicitor Advocate’ is used and, in particular, where its use might be misunderstood as ascribing the status of Queen's Counsel or an equivalent status to a solicitor advocate so designated.  As your Lordship in the Chair explains, the term ‘Senior Solicitor Advocate’ is only of significance for the purpose of fixing the level of remuneration under the legal aid regulations.  … as is accurately explained on the Society of Solicitor Advocates' website, ‘the accreditation relates purely to payments from the Scottish Legal Aid Board (SLAB) in criminal cases, and is separate from the QC structure’.  That being so, I question whether using the designation ‘Senior Solicitor Advocate’, as for example Mr Gilfedder does on his business notepaper (and he is not alone in this), might not be potentially confusing for clients, and indeed perhaps even some members of the legal profession.  It may not have confused the appellant in the present case but it might confuse others.” 

 

[25]      The clear confusion in both the original response from Mr Mannifield and that of Mr Tait causes us considerable concern.  Despite the terms of Mr Mannifield’s second response, his cavalier use of the terms counsel and senior counsel, the latter of which is equiparated with the role of “senior solicitor advocate” (even in the second response these are treated as having an equivalence), are all eloquent of the sort of confusion predicted by Lord Brodie.  If the instructing solicitor is himself confused as to the nature and status of these respective roles, how much greater scope for confusion is there on the part of an accused person?  The terms of the responses as a whole give us grave reason to doubt whether full and adequate information on the issue of representation was in fact given to the appellant.  The court has made it clear that a mere recitation of the options will not suffice, particularly in the case where, as here, there is a conflict of interest in that one of the solicitor advocates instructed is a senior member of the firm in which the solicitor is employed. 

[26]      The Lord Justice Clerk in Woodside specifically raised this issue:  (paragraph 74)

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

 

[27]      As Lord Justice General, he repeated these concerns in Addison:   

“[25]    … To make such a decision the client must be advised of his options for representation.  A mere recital of those options is no more than a formality if it is not supplemented by advice, a point on which the practice rules are silent.  In my view, it is the duty of the accused's solicitor to take all reasonable steps to ascertain which members of the Bar and solicitor advocates experienced in this area are, or may be, available to conduct the defence.  Only then can a worthwhile decision on representation be made. 

 

[26]      The observance of these duties may present the accused's solicitor with a conflict of interest, especially if he is a solicitor advocate or if a senior member of his firm is a solicitor advocate.  This court has already adverted to the latter problem in Woodside v HM Advocate (paragraphs 71—74).  It is a matter for concern that it continues.  Even where there is no such obvious conflict of interest, the solicitor may nonetheless find it difficult to give wholly objective advice as to the choice of defender from those who are available.  In the event, any advice that he gives may be thought to lack the appearance of objectivity.” 

 

These concerns about conflict of interest in relation to representation are live ones in this case.  In his response, Mr Mannifield makes it clear that as an associate he is an employee of the firm Belmonte & Co, of which Mr Belmonte is the senior partner.  The difficulties which might be faced by someone in such a position “instructing” his senior partner are obvious.  In his response, Mr Belmonte states that:  

“In cases where I am instructed the Law Society of Scotland’s regulations are adhered to and a ‘Chinese walls’ policy operates between the instructing solicitor and myself to avoid conflict of interest.” 

 

We are not clear what is meant by this:  it may be meant to convey that there may be information available to the instructing solicitor which is not passed on to those actually conducting the trial, but we think that unlikely.  Whatever it is intended to mean, the principal difficulty remains:  it is nowhere indicated that robust procedures are in place to enable the instructing solicitor to carry out his job entirely independently and without being subjected even to indirect influence which may arise from the nature of the relationship between them.  In Woodside, the Lord Justice Clerk observed that: 

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

 

[28]      The relationship of employer and employee which so concerned the Lord Justice Clerk in that case is exactly the one which pertained here. 

[29]      In Woodside Lord Nimmo Smith noted (paragraph 87) that:  “An in house arrangement … is bound to attract scrutiny, and should be able to withstand it”. 

[30]      In the present case it is not obvious that this is so.  The issue is not one of “Chinese walls” as Mr Belmonte put it;  the issue is whether a system is in place to ensure that an in house arrangement retains all the degree of independence which would be present in an arm’s length instruction.  We do not have material to enable us to reach the conclusion that this was so, but the circumstances of this case show that the issues raised in both Woodside and Addison continue to give cause for concern.  It is perhaps surprising that the terms of rule 1(2) of the Rules for the Conduct of Solicitor Advocates 2002 have not been reconsidered, standing the clear criticism of its operation which was made in both Woodside  and Addison.  As was graphically explained in Woodside, the current rules do nothing to safeguard an accused from being defended by one whose reach exceeds his grasp.  Most significantly, the rules countenance a situation where a manifest conflict of interest arises, without ensuring that any such conflict is addressed and dealt with in a way which secures the true and informed consent of the accused.  There is no indication in the present case that any real consideration was given to the question of informed consent.  In cases such as the present, it is clearly in the interests of justice that those against whom the most serious charges are levelled are provided with representation at a commensurate level of experience and ability, so that his defence may be objectively conducted, free from any risk created by conflicting interests.  That the issue continues to surface in this court suggests very strongly that the current rules are inadequate to achieve this end, and that consideration should be given to their amendment.