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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Osborne
Lord Nimmo Smith
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[2007] HCJAC 19
Appeal
No. XC23/03
OPINION OF THE LORD
JUSTICE CLERK
In the Appeal by
ALEXANDER WOODSIDE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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For the appellant:
Shead, Richardson; Culley &
McAlpine, Perth
For the Crown:
Stewart QC, AD; Crown Agent
18 February 2009
I Introduction
[1] In July-August 1998 the appellant was tried at Glasgow High
Court on the following charge.
"On 17 January 1998 at
Croftend Avenue, Croftfoot, Glasgow, near Lugar Place, you ALAN WILLIAM
WOODSIDE, ALEXANDER WOODSIDE, DAVID CHARLES JUST and PATRICK STEVEN DOMINIC
BOYLE did assault John Hampson ... and chase him, throw a bottle at him which
struck him on the head whereby he was knocked to the ground, strike him
repeatedly on the head and body with knives or similar objects and did murder
him."
On the third day of the
trial, the Crown accepted David Just's plea of not guilty and Patrick Boyle's
plea of guilty to simple assault by striking the deceased with a bottle. On 5 August 1998 the
appellant and Alan Woodside were convicted as libelled.
[2] Alan Woodside was the appellant's elder brother. Patrick Boyle was married to the appellant's
sister Maureen.
[3] This appeal has had a long and convoluted history. After we heard counsel on the grounds of
appeal that we are now considering, we ordered those who conducted the defence to
produce certain documents relating it.
We later heard evidence from the three solicitors concerned.
II The murder
The background
[4] In the late evening of Friday 16 January 1996 the
appellant and Boyle went to a carry-out shop near Boyle's house. They encountered some youths who were members
of a local gang. There was an exchange
of incivilities and a fight broke out.
The appellant had a broken bottle pushed into his face. He and Boyle escaped to Boyle's house.
[5] There was evidence from two of the youths that at the scene
the appellant threatened revenge. Late
that night, the appellant telephoned his mother and told her that he would "murder
the bastard who slashed him."
[6] On the following evening the appellant, Alan Woodside, Just,
Boyle, the appellant's cousin Stephen Richford, Michael Forbes and Jason
Russell assembled in Boyle's house and armed themselves. When they heard that the gang were in the
vicinity, they set off to confront them.
Alan Woodside had a bayonet, the appellant had a camping axe, Just had a
Rambo knife and Boyle had a bottle.
The incident
[7] The incident began when Boyle threw the bottle. It struck the deceased on the head and dazed
him, and he fell over. There was
evidence that Alan Woodside's bayonet was visible at that stage. The group rushed forward to attack. The deceased's friends ran away, leaving him
isolated. The appellant's group surrounded
him. Alan Woodside then stabbed him
through the heart. The appellant was
close to the deceased when he was stabbed.
Meanwhile, Boyle chased after the deceased's friends.
The aftermath
[8] The appellant was
seen to be carrying the axe shortly after the incident. On the following day, several of those
involved met at the home of the appellant's parents to discuss the
incident. According to the appellant's
mother, the appellant made an incriminating admission as to his part in
it. I shall refer to that as "the Sunday
confession." On Monday 19 January, with
the help of their father, Alan Woodside, senior, the appellant and Alan
Woodside fled to Coventry. They were in hiding there
until 25th
January 1998 when they surrendered to the
police. The appellant then instructed
Livingstone Brown.
[9] The appellant was
detained at first in Longriggend Remand Institution (Longriggend). On the occasion of a visit by his parents and
his girlfriend Kelly Ann Savage, according to his mother, he made a further
incriminating admission. I shall refer
to that as "the Longriggend confession."
III The preparation of the appellant's
defence
The
instruction of the defence team
[10] At the outset Mr Gerard Brown CBE,
a senior partner of Livingstone Brown, acted as the appellant's solicitor. He visited him at Longriggend and carried out
certain preliminary work on his behalf. On 17 April 1998 he took
his precognition. At about that time Mr
Brown, who had rights of audience in the High Court, decided that he would
defend the appellant at the trial. It
was then decided that Mr David McGlashan, his qualified assistant, would
act as the appellant's solicitor and would instruct Mr Brown. Mr McGlashan also instructed
Mr Michael McSherry, a solicitor with rights of audience who was not
connected with Livingstone Brown, to assist Mr Brown. Mr McSherry is senior to Mr Brown in terms of
admission as a solicitor. Both were
admitted as solicitor advocates in the same year. I shall refrain from describing
Mr McSherry as Mr Brown's junior for reasons that I shall
explain.
[11] Since this was a murder charge, the appellant was entitled to
be defended with the benefit of legal aid by senior and junior counsel. I am satisfied on the evidence, oral and
documentary, that the decision that he would be defended by Mr Brown and Mr
McSherry on the instructions of Mr McGlashan, rather than by counsel, was
presented to him as fait accompli.
Livingstone Brown's
dealings with Mrs Maureen Woodside
[12] During 1996 and 1997 Livingstone Brown acted for the
appellant's mother, Maureen Woodside, in relation to allegations by her that
her husband, the appellant's father, had been violent towards her. They represented her in related civil
proceedings. In October 1997 they
represented her when she was prosecuted in Glasgow sheriff court for
fraud. That prosecution was
abandoned.
[13] By 25
January 1998 Livingstone Brown no longer had
any active files relating to Mrs Woodside.
On 11 March
1998, however, Mrs Woodside had a meeting with Miss Amanda
Hamilton, a member of their staff who had no connection with the appellant's
case. She alleged that there had been
further incidents involving her husband.
She wished to raise an action for divorce and for a residence
order. Miss Hamilton took a statement
from her and had her complete the legal aid forms. Mr Brown knew nothing of this.
[14] By 13 March
1998 it had become apparent within Livingstone Brown that
Mrs Woodside was the appellant's mother and that she would be a witness for the
Crown at his trial. On that date Miss
Hamilton arranged for her to be represented by another firm and telephoned her to
advise her of the reasons for this.
The
preparations for the trial
[15] The
defence team understood that there were three important witnesses against the
appellant; namely Michael Forbes, who would say that the appellant was in
possession of the axe shortly before the incident; Stephen Richford, who would
say that the appellant was in possession of it shortly after the incident; and
Maureen Woodside, who would speak to the Longriggend confession. They prepared for the trial in the
expectation that Alan Woodside would plead guilty to murder and that Maureen
Woodside would not give evidence. Both
expectations were confounded at the trial.
At this stage Mr Brown had committed himself to the misguided view that,
without Mrs Woodside's evidence, there would be insufficient evidence against
the appellant.
[16] The trial was fixed for 21 July 1998. That
date clashed with Mr Brown's holiday arrangements. On 15 July 1998 the
defence team had a meeting with the appellant at Barlinnie Prison. The appellant agreed that, if the case could
not be postponed, Mr McSherry could conduct the defence while Mr Brown was on
holiday. On 16 July 1998 the Crown
refused to agree to a request from Mr Brown that the trial should be postponed. Mr Brown then telephoned Mr James Keegan, a
solicitor advocate, to enquire if he would be available "to sit in"
for Mr Brown at the trial from 21 July until he returned from holiday. According to the relevant file, Mr Keegan
agreed to do so. In the event, the trial
was put off until later in July; but that left Mr Brown with a further
diary problem, as I shall describe.
[17] On 21 July the case was called at Glasgow High Court for the
attendance of the accused and counsel only.
On that occasion, Mr McGlashan and Mr McSherry attended for the
appellant along with Mr Robert Livingstone, solicitor advocate of Livingstone
Brown, who had had no previous connection with the case.
[18] On 23
July 1998, the firm of Gordon and Smyth,
solicitors, Glasgow,
contacted Livingstone Brown to say that the appellant had told one of their
staff that he wished to be defended by a Queen's Counsel and that he had not
been advised that he was entitled to this representation. Mr McGlashan did not take this matter up with
the appellant. Gordon and Smyth's intervention came to
our notice only after Mr McGlashan handed over Livingstone Brown's legal aid
account at a late stage in the hearing.
On the same day, Mr McSherry met the appellant alone, apparently because
Mr Brown was on holiday and Mr McGlashan was unavailable.
IV The
trial
[19] Alan
Woodside did not dispute that he struck the fatal blow. He sought a verdict of culpable homicide on
the ground of diminished responsibility.
The appellant's defence was that while he had set off with the others for
the fatal confrontation, he had been unarmed and had taken no part in the
incident.
Eye witness evidence for the Crown
Michael Forbes
[20] Forbes said inter alia that
weapons were on show at the Boyles' house shortly before the incident. There was a discussion about revenge for the
assault on the appellant. The appellant
took out the axe from underneath a couch and put it inside his jacket. Alan Woodside had a bayonet and Just had a
knife. As the group were leaving, Maureen Boyle
gave Boyle a bottle. The appellant, the
three co-accused and others walked up the street towards the deceased and his
friends. Forbes described the attack and
the stabbing of the deceased by Alan Woodside.
He said that the appellant was "kind of away from it." The appellant was doing nothing at all and
was standing next to Just. Mr Brown did
not cross-examine Forbes.
Stephen Richford
[21] Richford said that said that Alan Woodside pulled out the
bayonet as he rushed forward and that when the group left the scene the appellant
had the axe. He drove the appellant,
Alan Woodside, Just and Forbes to the appellant's house. When they arrived there, the appellant still
had the axe.
Jason Russell
[22] Russell said that when he went to Boyle's house with the
appellant, Alan Woodside, Just and Richford before the incident, the bayonet
was lying in front of the television set.
Later that night, Alan Woodside gave him the bayonet, which he
thereafter threw into the Clyde. In cross-examination he said that he was in
the appellant's parents' house for only a few minutes on the Sunday afternoon
and that the appellant, Alan Woodside, his girlfriend Alicen Reid and Maureen
Woodside came to his house between 6
pm and 7
pm that evening.
That was the first time that he saw the appellant that day. This was relevant to the evidence that Mrs
Woodside was expected to give.
Maureen Woodside's evidence
[23] Mrs Woodside said that the appellant telephoned her at
about 1 am
on Saturday 17th January. He told her of
the incident at the carry-out shop and said that he wanted to "murder the
bastard who slashed him as nobody messed with the Woodsides." She described the preparations for the
incident that were made at Boyle's house on the Saturday evening.
[24] Mrs Woodside said that on Sunday 18th January, the
appellant, Alan Woodside and several others gathered in her house to discuss
the previous night's events. She and her
husband and their younger children were present. Alan Woodside said that he had put a bayonet
through the deceased and thought that he had killed him. The appellant said that perhaps it was he who
had killed him because he had smashed the back of his head like a coconut. Just said that perhaps it was he who had
killed the deceased because he had a knife.
Mrs Woodside's evidence about the Sunday confession took the appellant's
defence team by surprise.
[25] Mrs Woodside described the occasion on which she, her
husband and Kelly Ann Savage visited the appellant at Longriggend. Her husband asked the appellant to tell the
truth. The appellant told him in her
presence that "he hit the boy on the back of the head with a hatchet" before
the boy was stabbed.
[26] Mr McSherry cross-examined Mrs Woodside. The obvious question is why Mr Brown gave him
this responsibility. Mr McSherry told us
that Livingstone Brown's previous involvement with Mrs Woodside was a factor
and that Mr Brown was embarrassed about cross-examining her. He also suggested that it was felt by the
defence team that he could get more out of Mrs Woodside and would be better
able to cross-examine her. He himself
was surprised to learn only a day or so before she gave evidence that
Livingstone Brown had acted for her. Mr
Brown did not tell him in detail what work Livingstone Brown had done on her
behalf or in what circumstances they had parted company with her. He and Mr Brown discussed with the appellant
the proposal that he, Mr McSherry should cross-examine Mrs Woodside. The appellant agreed to it. Mr Brown told us of a further reason, namely
that Mrs Woodside had telephoned Livingstone Brown and asked to speak to him
and that he had refused to discuss the case with her. That made him uneasy. The main consideration, he said, was Mr
McSherry's low-key approach to cross-examination and his eye for detail. Mr McGlashan agreed with the suggestion that
Mr McSherry's style was "more insinuating and gentle."
[27] Mr McSherry put to Mrs Woodside that she had a history of
mental illness, of drinking and of taking amphetamines. She said that she went to the police in about
March 1998 to complain that her husband was lacing her food and drinks with
speed. She said that this conduct had
begun in 1997 and that after 31
December 1997 she did not allow him to prepare
her drinks. In March 1998 she reported
this to her lawyer and to her doctor.
She agreed that the appellant had left home when he was 16. She denied that he did so because of a
dispute over the proceeds of a criminal injuries compensation award made to
him. She said that she had put him out
because of his relationship with Kelly Ann Savage, who was then under 16 years of
age and was in Mrs Woodside's care. She
denied the suggestion that the appellant had not telephoned her at all in the
early hours of the Saturday.
[28] Mrs Woodside also denied the suggestion that the Sunday
confession never took place. She gave a
list of those present on that occasion, namely the appellant, Alan Woodside,
Alicen Reid, David Just, Stephen Richford, Jason Russell, Maureen Boyle, Kelly
Ann Savage, Robert Richford, his girlfriend Julie Ann Boyd, Alan Woodside
senior and her younger children. She
said that all of them would have heard what the appellant said. She denied the suggestions that the appellant
was not even in her house that day and that she telephoned Kelly Ann Savage on
the Sunday evening to ask where the appellant was. She said that on the Sunday evening the
appellant and Kelly Ann Savage had gone to Jason Russell's house, that she had
joined them there and then gone home, and that the appellant had later returned
to her house.
[29] Mr McSherry challenged Mrs Woodside about the Longriggend
confession. She said that the appellant
made the confession during an extended visit.
Kelly Ann Savage took up the first half of the visit. She and her husband took up the second,
during which the appellant made the confession.
She denied the suggestion that the appellant made no such remark. Mr McSherry put to her that she had used
aliases to obtain catalogue goods. She
admitted that she had done so once. She
said that her husband had hit her with an axe on 1 January 1996. She said that the Sunday confession was made
to her in the living room on the Sunday evening. She denied Mr McSherry's suggestion that she
wished to incriminate the appellant so that she would never again be troubled
by him.
Reaction to
Mrs Woodside's evidence
[30] In the days following Mrs Woodside's evidence, Mr McGlashan and
an investigator precognosced as many of the Sunday group as could be
traced. On 29 July 1998, the
defence took a supplementary precognition from the appellant. This created some doubt as to whether he had
met his mother at her house on the Sunday.
After Mrs Woodside gave evidence, her husband gave the defence several
documents bearing on her character and credibility, including a writ for
divorce by him in which he alleged that she was guilty of fraud and
prostitution. Mr Brown lodged these
documents but did not apply to have Mrs Woodside recalled to be examined about
them.
[31] Steven Richford had not been specifically asked about his
whereabouts on Sunday 18 January. After
Mrs Woodside gave evidence, Mr Brown did not move to have him recalled on the
point.
Mr Brown's absence
from the trial
[32] On 30 July
1998 Mr Brown absented himself from the trial in
order to attend a meeting in London
as part of a Law Society delegation that was lobbying on some question of legal
aid fees. Mr Livingstone attended the
trial, although he was not in the well of the court. He took no part in the proceedings.
[33] The witnesses that day were two psychiatrists, who spoke to the
question of diminished responsibility on the part of Alan Woodside; Alicen
Reid, who spoke to Alan Woodside's mental state, and Dr Jeanette
McFarlane, who spoke to the post mortem report.
Dr Jeanette McFarlane's evidence
[34] Dr McFarlane described the stab wound that went straight
through the deceased's heart and was the cause of death. She described two injuries to the head. The first was on the back of the head and was
consistent with the deceased's having suffered a blow from something that was
neither very sharp nor very blunt.
Dr McFarlane's view was that it was caused by a different weapon
from that which produced the fatal stab.
She thought that it was a weapon that had some sort of edge, but was not
as sharp as a knife. An axe was
certainly a possibility.
[35] Mr McSherry put to Dr McFarlane a misinterpretation of her
previous evidence about the first head wound and appeared to misunderstand the
evidence of a previous witness, a point on which he was taken to task by the
trial judge. Dr McFarlane rejected
the possibility that the wound to the head was caused by an intact bottle and
gave detailed reasons. She favoured the
theory that the stab wound and the head wound were caused by two different
weapons, but without seeing the bayonet in question, which had not been
recovered, she could not be sure.
The evidence for the defence
The appellant
[36] The
appellant denied that he had spoken to his mother in the early hours of
Saturday 17 January. He admitted that he
was one of those who set off from Boyle's house to fight the gang who had
attacked him. He denied that he had been
armed; that he had been involved in the incident, that he had ever confessed to
his mother that he was involved or that he had been in her house on the Sunday. He spoke in detail about his mother's
dishonesty, drinking and drug-taking. He
identified several defence productions that vouched her use of false names.
[37] In
cross-examination, the advocate depute raised with him Mr Brown's failure
to cross-examine Forbes. The appellant
said that Forbes' evidence was true in part, but was untrue so far as it
referred to his having had an axe. He
denied Stephen Richford's evidence that he had an axe after the incident. He spoke at length of his mother's
unreliability and unpredictability and her dishonest accusations against his
father, his brother and himself.
Professor Busuttil
[38] Professor Busuttil, then
the Regius Professor of Forensic Medicine at the University of Edinburgh, carried
out a post mortem examination for the defence.
He said that the injury to the back of the deceased's head could have
been sustained in two major ways, one of which was by his being hit with a
blunt object. A glass bottle could have this
effect. He thought that it unlikely that
the injury was caused by a slashing or cutting type of blow with a
bayonet. He was asked if a camping axe
could cause the injury. He replied
"It depends very much on the
type of axe. If it is a heavy axe and it
is a sharp axe and if it is used with a certain amount of force, not
necessarily a major force, then the skin would be split and the bones
underneath would be damaged, fractured as well.
There were not fractures of the bone in this particular instance. An axe which is blunt or has a configuration,
is rounded, not very, very sharp, particularly if it is a glancing type of
blow, can produce a laceration, an injury of this type."
David
Just
[39] Just,
who had by then been acquitted, said that he did not see anyone else with a
weapon before the incident and did not see anyone being struck. He threw away his own knife just before the
deceased was struck and took no part in the incident. In his evidence in chief Just was not asked
about the Sunday confession. He denied
having had any conversation with Mrs Woodside on Saturday 17th or Sunday
18th. He said he was at the house on the
Sunday and saw only Alan Woodside, senior.
In cross-examination, the advocate depute did not challenge Just
regarding his recollection of events on the Sunday.
The speeches
The advocate depute
[40] When
the advocate depute addressed the jury he commented on
Mr Brown's failure to cross-examine Forbes and on the fact that not all of
the detailed allegations made by the appellant were put to him in
cross-examination. In light of Mr
McSherry's cross-examination of Mrs Woodside, he raised the question why Alan
Woodside, senior, was not led to speak to her alleged frauds. I agree with the advocate depute who appeared
at this appeal that the trial advocate depute may not have had a sound grasp of
the law of concert. He seems to have
thought that the jury could not convict the appellant unless there was evidence
that he himself struck a blow. That
error was continued in his speech in which he submitted that the appellant
actually struck the deceased. He did not
refer to the medical evidence about the deceased's head injuries.
Mr
Brown
[41] Mr Brown addressed the jury in rather imprecise terms on the
concepts of mens rea, reasonable
doubt, credibility and reliability. He
said, wrongly, that if they did not accept the evidence of Maureen Woodside,
there was insufficient evidence in law to convict the appellant. He told them that he hoped to deal with the
eye-witness evidence, the alleged confessions and the medical evidence
separately in such a way that they would "be satisfied beyond reasonable doubt
of the innocence of the [appellant]."
These were his submissions on the issue of concert.
"I was interested when I
carefully listened to the speech to you by the learned Advocate Depute that his
position as far as the Crown is concerned is that Alexander Woodside was part
of a group that had a common criminal purpose - and I presume with a murderous
intent - and that he assaulted John Hampson.
If you are not satisfied ... if you're of the view that there is no
evidence to support from eyewitnesses Alexander Woodside assaulting John
Hampson in my view and in my submission to you there is only one verdict and
that is a verdict of acquittal (pp 825-826) ... So, was his position - that is
Alexander's position - one which in your view put him as part of a group with
murderous intent, and if it did, you have to determine what the murderous
intent was, and you have to determine what his knowledge was of that, and his
knowledge of any weapons that were going to be used" (p 828).
At an earlier stage Mr Brown
had told that jury that he would face up "fairly and squarely" to any criticism
levelled against him for his failure to cross-examine Forbes. When he returned to the subject, this is what
he said.
"A judgment is made as to
whether to cross-examine a witness or not to cross-examine a witness, but I
make no excuse for not cross-examining that witness and because I do not
challenge a particular piece of evidence it is not necessarily the case that it
is accepted. In the same way if the
defence or the Crown do not lead a witness that is a decision that is made" (pp
838-839).
V The grounds of
appeal
[42] This stage of
the appeal has been confined to two grounds, namely (1) that Mr Brown
ought not to have represented the appellant in circumstances where he had a
conflict of interest; and (2) that the defence at the trial was conducted
incompetently by reason of (a) the failure to cross-examine Forbes; to
cross-examine Mrs Woodside effectively; to call Alexander Woodside, Senior to
speak to her dishonesty; to call the other witnesses present to deny that the
appellant made the alleged Sunday confession; or to call Kelly Ann Savage to
deny that he made the alleged Longriggend confession; and (b) Mr Brown's
absence from part of the trial.
VI Conclusions
Conflict of
interest
[43] This ground of appeal raised an outright conflict of interest point
when it was tabled. At that stage there
seemed to be a possibility that Mrs Woodside had been a client of Livingstone
Brown when they accepted instructions from the appellant and that they had
acted for both clients thereafter. The
evidence at the appeal did not bear that out.
Counsel for the appellant submitted that nevertheless Livingstone Brown
ought not to have acted for the appellant because the firm had information
adverse to Mrs Woodside's credibility that it had gained while acting for her
and that the confidentiality of the information, or even the mere fact that
they had acted for her, inhibited the defence from pressing home the attack on
her credibility.
[44] The evidence shows that the appellant himself knew of all the
matters that were material to Mrs Woodside's credibility. Therefore the issue of confidentiality does
not arise, in my view. Moreover, all of
the points that were worth making against Mrs Woodside were in the event put to
her by Mr McSherry and put forward vigorously in the evidence of the appellant himself. In my view, there is no evidence to show that
Livingston Brown's past connection with Mrs Woodside had any detrimental effect
on the defence. In my opinion, this
ground of appeal fails.
The Anderson ground
The scope of an Anderson appeal
[45] The advocacy of Mr Brown and Mr McSherry seems to have lacked a
certain finesse. Mr Brown's speech to
the jury was unstructured and ill-focused.
No doubt many capable counsel and solicitor advocates would have
approached the defence in a different way.
But an Anderson appeal is
not a performance appraisal in which the court decides whether this question or
that should or should not have been put; or whether this line of evidence or
that should or should not have been pursued.
The appellant must demonstrate that there was a complete failure to
present his defence either because his counsel or solicitor advocate
disregarded his instructions or because he conducted the defence as no
competent practitioner could reasonably have conducted it (McBrearty v HM Adv 2004
SCCR 337, at [34]-[36], [60]; Grant v HM Adv 2006 SCCR 365, at paras [21]-[23]; DS v HM
Adv [2008] HCJAC 59). That is a
narrow question of precise and limited scope.
[46] In this case we have been asked to consider decisions taken in
the stress of a difficult trial and to assess them, at leisure and at length,
with the benefit of hindsight. The
decisions complained of relate to the evidence of witnesses who were for the
most part criminals or associates of criminals.
These decisions had to be made in response to a prosecution case that
was little short of overwhelming.
[47] The defence was simple and straightforward. The appellant denied that he was armed, or
that he took part in the attack, or that he made either of the confessions
alleged by his mother. The question for
us is whether that defence was put before the jury in all its essentials, it
being accepted on the appellant's behalf that he himself gave evidence on all
the material points.
Failure
to cross-examine Forbes
[48] There is no obligation on the defence to cross-examine every
witness whose evidence is incriminating.
A failure to cross-examine such a witness may lead to damaging comment
by the Crown and the judge; but it may be prudent not to cross-examine and to
face that possibility where there is reason to fear that, if pressed, the
witness may say something even worse.
[49] Experienced practitioners might, I think, have differing views
on the question whether Forbes should have been cross-examined on his evidence
that the appellant was armed with the axe.
One of Mr Brown's stated reasons is that he did not wish to
reinforce Forbes' evidence in chief on that point. I am not convinced by that; but I can see other
good reasons why the decision can be justified.
The defence knew that Forbes had incriminated the appellant consistently
since his first interview by the police.
Mr Brown had a precognition of Forbes in which he said that the attack
on the Saturday night was to be revenge for the incident on the previous night
and described the appellant as having waved the axe while saying that they
would get them. He also put the
appellant in the leading wave of the attack.
None of this came out in Forbes' evidence in chief, but might well have
done if he had been cross-examined on behalf of the appellant.
[50] Against that risk, there was the option of relying on the
appellant's own evidence in denial of Forbes' evidence and explaining to the
jury, as Mr Brown did, that failure to cross-examine Forbes should not be taken
as an acceptance of his evidence. Mr
Brown also had reason to hope that Just might give helpful evidence on the
point, as he duly did. In these
circumstances, the decision not to cross-examine Forbes was within the range of
decisions that he could reasonably make in the exercise of his discretion. Forbes was cross-examined on behalf of Alan
Woodside and of Boyle and was not shaken on any point. This suggests that the decision was, in the
event, probably correct.
Failure
to attack Maureen Woodside
[51] It cannot be suggested that there was a failure by the defence
to attack the credibility and reliability of Maureen Woodside. The criticism on this point is that the
attack was not pressed effectively. Mrs
Woodside's character was attacked in cross-examination and in the evidence of
the appellant himself. Mr McSherry put
to her all the essential points that were there to be made. She admitted to obtaining goods on credit in
false names. It was reasonable to
conclude, as Mr McSherry apparently did, that the subject of the abandoned
fraud prosecution was not worth pursuing.
The other criticisms relate to the failure of the defence to make use of
the documents that were given to Mr McGlashan after Mrs Woodside gave evidence
by having her recalled to be questioned about them. That was a tactical decision to be made on an
assessment of the effect of Mrs Woodside's evidence. It may be that other approaches could have
been taken to that question, but it cannot be said that Mrs Woodside's evidence
passed unchallenged. In the event, the
cross-examination of Mrs Woodside was successful to the extent that it brought
out her bizarre allegation that her husband was poisoning her food and
drinks. In due course all of the points
bearing on her credibility and reliability were rehearsed in the appellant's
own evidence.
Alan
Woodside, senior, not called
[52] There were several good
reasons not to call Alan Woodside, senior.
He had organised the flight of the appellant and his brother to Coventry. There were serious discrepancies between his
signed police statement and his defence precognition. Both incriminated the appellant. In the defence precognition, he contradicted
the appellant's claim that he was not present in the house on the occasion of
the alleged Sunday confession. He had refused
to co-operate with the defence when first precognosced about the Longriggend
confession. He had said in one
precognition that his recollection of events was affected by the fact that he
had been drunk throughout the relevant weekend.
In his police statement he had said Stephen Richford arrived at his
house saying that they had murdered the deceased.
[53] It is unnecessary for me to analyse this point in minute
detail. Any competent lawyer would have
appreciated that to lead a witness of this calibre was a high risk option. On the other hand, if he was not called, the
defence had the opportunity to point out that, since the Crown had failed to
lead him, it had failed to produce possible corroboration of Maureen Woodside's
evidence of the Longriggend confession.
In my opinion, it was a reasonable decision not to call him.
Failure to lead evidence
from the alleged witnesses to the Sunday confession
[54] If one looks generally at the matter, it is obvious that those
who foregathered on the Sunday were an unlikely source of help to the
defence. Alan Woodside was a co-accused
and as such was not compellable; but he was unwilling to give evidence on
behalf of the appellant. His legal
advisers gave an unhelpful reply when that proposal was made to them before the
trial.
[55] By letter dated 31
July 1998 Boyle's solicitors gave
Livingstone Brown the meaningful message that if he were to give honest
evidence it would possibly be damaging to the appellant's case.
[56] Kelly Ann Savage had made a police statement that incriminated
the appellant. She and Alicen Reid were
re-precognosced on 30 July at the High Court and their evidence was, I infer,
found to be unhelpful. It was therefore
reasonable not to call Kelly Ann Savage.
Alicen Reid was called by the Crown.
Her evidence in chief did not affect the appellant. It was a reasonable judgment, in my view, for
the defence to leave it at that.
[57] Maureen
Boyle was hostile to the appellant and was in a position to say that he had
threatened to murder his attackers.
Steven Richford had given evidence that he was not at the house on the
Sunday. Robert Richford's precognition
contradicted the appellant's account. Jason
Russell had given evidence and could no longer be traced. Paul Russell and Julie Ann Boyd could not be
traced. It was reasonable not to call
any of the children who had been present.
[58] These
are all specific reasons why these individual witnesses were not called. But, more generally, I doubt whether anyone
in Mr Brown's position could have been at all sanguine in putting any of
them into the witness box. In my view,
there is nothing in this ground of criticism.
Failure to lead Kelly Ann
Savage to rebut the evidence of the Longriggend confession
[59] Since Kelly Ann Savage's police statement could be put to her,
that was reason enough not to call her.
In any event, it appears that she was not a participant in the
conversation in which the appellant was said to have confessed to his mother.
Mr
Brown's absence from the trial
[60] In the event Mr Brown's absence on the day of his visit to London did not have any
detrimental result. Of the four
witnesses who gave evidence on that day, only two were relevant to the
appellant's case. Alicen Reid did no
harm to the appellant's case. Dr
McFarlane's evidence was inconclusive as to the cause of the head injuries, but
it was certainly not helpful to the appellant.
In my view, the material defence points on the interpretation of the
head injuries were put to her, however inelegantly. Even if that had not been done, it made
little difference at the end of the day because the advocate depute did not
found on the medical evidence in his speech.
Conclusions
[61] Counsel for the appellant has greatly assisted us in our
understanding of the evidence and the issues as they developed during the
trial. He has given us a detailed
analysis of the defence case; but in the course of it he has strayed beyond the
boundaries of the Anderson principle
that we have staked out in numerous appeals.
Having considered the transcripts of the trial and the voluminous
evidence led in this appeal, I conclude that the criticisms on which it is
based are not relevant to the Anderson test, and
are in any event unfounded.
Miscarriage
of justice
[62] If there had been any merit in these grounds of appeal, I would
have concluded nevertheless that there was no miscarriage of justice. The case against the appellant was cogent and
compelling. He was the victim of an
assault with a weapon. At the scene of
the assault, he vowed to avenge it. He
told his mother later that evening that he would "murder the bastard who
slashed him." On the following evening
he was one of a party who assembled for revenge. He armed himself with an axe. He knew that the others in the party were
armed. On his own admission, his party
set off to confront the persons responsible.
The bayonet that inflicted the fatal wound was on display as they rushed
towards the deceased. The appellant was
one of those who chased the deceased and cut off his means of escape. He was close to the deceased when the fatal
blow was inflicted. He was in possession
of the axe soon after the attack. He
then went into hiding.
[63] Even if the evidence of the confessions was disregarded, there was
nonetheless a powerful case with convincing evidence of concert.
VII The
role and the responsibilities of solicitors and solicitor advocates
Livingstone
Brown's response to the grounds of appeal
[64] The appellant's present agents asked Livingstone Brown to confirm
or deny that they had acted for Mrs Woodside. They did not provide a satisfactory
answer. It was only on the eve of a
hearing on an application for recovery of the relevant documents that Mr
McGlashan handed over a number of files.
On 2 May 2007,
during the course of the first hearing, we ordered Livingstone Brown, Mr Brown
and Mr McSherry to produce their case papers relating to the trial and ordered
Livingstone Brown to produce their legal aid accounts. Livingstone Brown failed to obtemper this
order. They produced certain documents
shortly before the hearing was resumed, but these did not include their legal
aid account. It was not until the fifth
day of the resumed hearing that Mr McGlashan handed it over.
[65] I consider that in these respects Mr McGlashan has been
discourteous and obstructive. We have
commented before on the problems caused in Anderson appeals
where trial counsel are uncooperative (cf Gillespie
v HM Adv, 2003 SCCR 820; McBrearty v
HM Adv, supra). In the light of this case, we may have to
reconsider our practice in this aspect of Anderson appeals.
The
professional conduct of solicitor advocates
[66] Rights of audience in the High Court were extended to
solicitors, on certain conditions, nearly twenty years ago (Law Reform
(Miscellaneous Provisions) (Scotland) Act 1990 (the 1990 Act), s 24). In this appeal we have had to consider the
way in which rights of audience have been exercised. We are not concerned with the policy
considerations that lay behind section 24 of the 1990 Act; but it is right that
we should comment where weaknesses in the operation of it may put the interests
of justice at risk.
[67] It is unfortunate that the three solicitors concerned in the
trial in this case should have been singled out for public scrutiny of their
conduct of the defence, especially so long after the event. There is reason to think that some of the
practices for which counsel for the appellant has criticised them may be
widespread among solicitors who practise in this area of the law. It is particularly unfortunate in the case of
Mr Brown. He is an experienced solicitor
who has been honoured with the CBE for his service to his profession. It was my impression that Mr Brown was
completely truthful in his evidence at this appeal. Mr McSherry gave me the same impression. If, as I believe, they may have erred in
certain aspects of their duty, their errors have arisen from a failure in the understanding
of their duty rather than from any improper reason. I raise the matters of professional practice that
I am about to discuss only out of a concern that every person accused of
serious crime should have access to the best available advice and
representation and should be defended with the highest standards of
professional competence and diligence.
The
codes of professional conduct for solicitors and solicitor advocates
[68] At the time of the trial Mr Brown, Mr McSherry and Mr McGlashan
were bound by the Code of Conduct (Scotland) Rules 1992 (the 1992 Code). Rule 3 provided inter alia as follows:
"Where in the course of
advising a client a solicitor identifies a situation which may require
appearance in a court, he shall advise his client ...
(b) [of] the advantages
and disadvantages of instructing appearance by a
solicitor advocate and by
counsel respectively, which advice, subject to the foregoing generality, shall
cover
(i) the gravity and complexity of the case;
(ii) the nature of practice, including specialisation, and
experience
of the solicitor advocate;
...
(c) that the decision of whether the solicitor advocate or
counsel should be
instructed is entirely that
of the client."
A solicitor advocate was obliged to observe and comply with the
Rules of Conduct set out in Schedule 2 to the Code. Paragraph 1(2) of the Schedule provided that
a solicitor advocate was entitled at all stages of the case at his sole
discretion to decide whether he required
"the assistance of a solicitor or other representative of his firm
or of the instructing firm in connection with the preparation of the case and
also at consultations with the client and at the presentation of the case in
court."
Paragraph 9(1) provided that
it was the duty of the solicitor advocate to arrange his affairs so as to avoid
a reasonably foreseeable clash of commitments.
Paragraph 9(2) provided that having accepted instructions to appear, it
was the solicitor advocate's responsibility to ensure, unless (in a civil case
only) other arrangements had been made with an instructing solicitor, that he
was present in court on the day and at the time appointed and thereafter until
the trial or hearing was concluded.
Paragraph 9(5) provided that where a senior solicitor advocate appeared
with a junior solicitor advocate, he should be absent from court only if he was
satisfied that his junior would be present and would be able to deal properly
with any matter that might arise.
Seniority
[69] When senior and junior counsel are instructed in a defence,
their roles and responsibilities are clear-cut and well understood. That concept of seniority is in my view conducive
to the due administration of justice. It
does not apply in the case of solicitor advocates. In the 1992 Code, the terms "senior solicitor
advocate" and "junior solicitor advocate" were not defined. When two solicitor advocates conduct a
defence together, the leading solicitor advocate is not necessarily senior to
the other in terms of admission as a solicitor or admission as a solicitor
advocate, or for that matter in terms of experience and skill. Sometimes two solicitor advocates appear in a
trial, ostensibly as senior and junior, only to appear in a later trial with
their roles reversed. Although the 1992
Code, like the current Rules for the Conduct of Solicitor Advocates 2002 (the
2002 rules, rule 9(5)), envisaged that where two solicitor advocates appeared
together, there would be a relationship of senior and junior, in practice there
is no concept of seniority other than for the purpose of charging fees. The Criminal Legal Aid (Scotland) (Fees)
Regulations 1989 provide that a solicitor advocate shall be a "senior solicitor
advocate" where he is undertaking work equivalent to that which would be done
by a senior counsel in a case where the proceedings relate to a prosecution or
conviction for murder or where the Scottish Legal Aid Board has authorised the
employment of senior counsel; and that a solicitor advocate shall be a "junior
solicitor advocate" where he is undertaking work equivalent to that which would
be done by a junior counsel, whether or not the Board has authorised the
employment of senior counsel in the case (reg 2(1A)).
[70] The matter of fees is no concern of this court, except where it
may have a bearing on the due administration of justice. The undisputed evidence in this appeal is
that when two solicitor advocates appear together, the nominal leader, whether
or not he is senior to his colleague in any respect, and regardless of his
experience, is paid as if he were a Queen's Counsel. Such a solicitor advocate may have little
experience and may be ineligible for silk.
That rule creates an incentive that may not be in the interests of
justice.
Advice
to the client regarding representation
[71] My conclusion on the evidence is that Rule 3 of the 1992 Code
was disregarded in this case. I regret
to say that Mr McGlashan was not a credible or satisfactory witness. When questioned about certain matters that seemed
not to reflect well on Livingstone Brown, he displayed studied unconcern. He replied unconvincingly to numerous
questions by saying either that he did not know or that he could not
remember. He appeared to resent being
questioned at all. I do not believe his
evidence that he discussed with the appellant the option of his being defended
by counsel. He himself was unable to recall
the precise terms of this alleged discussion.
There is no trace of it in any of the files. There is no entry in the legal aid account to
suggest that enquiries were made of the advocates' clerks regarding the
availability of counsel. No names of counsel,
senior or junior, or of any other solicitor advocates, were put to the
appellant. When Mr McGlashan instructed
Mr Brown in this difficult case he did not know what experience he had had in
murder trials.
[72] The reality is that Mr Brown decided at the outset that he
would defend the appellant with Mr McGlashan in the role of his instructing
solicitor. No other option was put to
the appellant. Even when Gordon and
Smyth reported to Livingstone Brown that the appellant wished to be defended by
senior counsel, neither Mr McGlashan nor Mr Brown seems to have discussed that
option with him. An obvious weakness in
Rule 3 of the 1992 Code was, in my view, that while it imposed a professional
obligation, it provided no practical safeguard against its being ignored. There is the same weakness in the 2002 Rules.
[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.
Instruction
by an employee
[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 section 24 of the 1990 Act was based.
Self-certification of
competence
[75] To attain the rank and dignity of Queen's Counsel, a member of
the Bar or a solicitor advocate has to demonstrate the length and range of his
experience and the quality of his skills and judgment. The Dean of Faculty supervises the
representation of accused persons in the High Court by members of Faculty to
ensure that serious and difficult defences are not put in the hands of
inexperienced counsel. If necessary, the
Dean will direct a member of the senior Bar, or an experienced junior of proven
ability, to make himself available for a criminal defence, regardless of his
prior commitments. With solicitor
advocates, however, the position seems to be one of unmonitored
self-certification. As Mr Brown told us,
it is possible for a solicitor to be given rights of audience and to appear in
the High Court on the following day on his own or as senior to another
solicitor advocate. From the standpoint
of the administration of justice, the idea that any solicitor advocate can accept
instructions, perhaps from his own employee, as leader in a serious trial
regardless of his experience and skill, is a matter for concern. The 2002 Rules provide no safeguard to
protect the accused in such a case from being defended by an inexperienced
solicitor advocate whose reach exceeds his grasp.
Mixed
representation
[76] There is a
fundamental difference between an accused person's relationship with counsel
and his relationship with his solicitor.
Counsel is the holder of the public office of advocate. He conducts a case according to his own
discretion and judgment. He is entirely
independent in the performance of his duty.
A solicitor is in a contractual relationship with the client and is
obliged to follow the client's lawful and proper instructions (Batchelor v Pattison and Mackersy (1876) 3 R 914, Lord President Inglis at p 918).
[77] This distinction is
of even greater relevance now that a solicitor may instruct a member of the Bar
as senior or as junior to a solicitor advocate.
That seems to me to present further problems for the administration of
justice. The court has a legitimate
interest in being able to identify a clear point of responsibility for
decisions taken in the course of a trial.
In general, I think that there are dangers where the defence in a
serious trial is in the hands of two lawyers who are governed by separate codes
of conduct and are subject to separate disciplinary jurisdictions, not least
since the Law Society may, at its discretion, waive compliance by a solicitor
advocate with any of the 2002 Rules (rule 5).
But there are more particular dangers.
Such an arrangement could compromise the independence of counsel if, for
example, a capable and experienced counsel were to be instructed as junior to a
solicitor advocate who was inexperienced or had an imperfect understanding of
his responsibilities; or as junior to a solicitor advocate who was being
instructed by his partner or employee.
Absence
from a trial
[78] The privilege of being a lawyer carries the responsibility of
commitment to the service of the client.
That commitment should be part of every practitioner's professional
instinct. I fail to see how any
practitioner could be justified in absenting himself from any part of a murder
trial except in an emergency.
[79] It appears that Mr Brown had only the most diminished awareness
of his responsibilities. When it was
thought that the trial date in this case would clash with his holiday plans, Mr
Brown made the serious proposal to another solicitor advocate that he should
"sit in" for him until he returned from holiday. That proposal would have been a dereliction
of duty and would have been professionally irresponsible. In the event, no harm was done because the
trial was postponed for other reasons.
However, during the course of the trial, Mr Brown chose to absent
himself on Law Society business. This
too was a dereliction of his duty to his client.
Conclusion
[80] This appeal has highlighted problems of rights of audience that
seem not to be unique to this case. I
think that it would be opportune if there were to be a review of the working of
the system overall.
Disposal
[81] I propose to your Lordships that we should refuse the appeal on
the grounds that we have considered and continue it for a hearing on the
remaining grounds.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord Nimmo Smith
|
[2009]
HCJAC 19
Appeal
No. XC23/03
OPINION OF LORD OSBORNE
In the Appeal
by
ALEXANDER WOODSIDE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the appellant:
Shead, Richardson; Culley &
McAlpine, Perth
For the Crown:
Stewart QC, AD; Crown Agent
18 February
2009
[82] I have
had the opportunity of reading the Opinion delivered by your Lordship in the
chair. I am grateful for the account of
the facts of this case that it contains.
I am in complete agreement with your Lordship's Opinion and with the
proposal made in it for the disposal of this part of the appellant's
appeal. However, in view of the
particular circumstances disclosed in the course of the evidence heard in the
appeal, I wish to express briefly my own view on certain aspects of the case.
[83] Where
this court requires to evaluate what may be called an Anderson ground of appeal, its invariable
practice is to invite any practitioner, whose previous conduct of the case has
been put in issue, to comment on the relevant grounds of appeal. A practitioner who receives such an
invitation from the court may well not wish to respond to criticisms made of
their conduct of the case in question, for which position there may be quite
understandable reasons. However, where
the ground of appeal concerned also makes pure allegations of fact which the
practitioner considers are unfounded, or inaccurate, it appears to me that the
practitioner, as an officer of the court, has a responsibility to draw that to
the court's attention.
[84] The
second matter on which I would wish to comment arises from the situation where
more than one solicitor advocate appears on behalf of an accused person, or
where, as may happen now, a solicitor advocate appears with a member of the
Faculty of Advocates to represent such a person. In my view, it is essential that arrangements
should be established, in terms of which, in such situations, there is clarity
as to which of more than one practitioner involved is to be recognised as the
senior. Plainly, responsibilities attach
to the position of being the senior representative of an accused person, which
do not attach to his or her junior. It
is a corollary of that that, for purposes of professional discipline, such
matters should not be in doubt.
Unfortunately the present arrangements relating to solicitor advocates
described in the Opinion of your Lordship in the chair, do not seem to me to
achieve that necessary end. It is to be
hoped that in early course the desirable changes will be made. It might be thought that, whatever form those
arrangements might take, they would require to involve the making of an assessment
as to whether a solicitor advocate was or was not qualified to act as a
senior. The present arrangements in
which two solicitor advocates may appear in one case, with one acting as senior
and the same solicitor advocates may appear in another case, with the other
acting as senior, seem to me unsatisfactory and to undermine the confidence
which a senior should be able to command.
[85] Finally,
your Lordship in the chair has made reference to the Code of Conduct (Scotland) Rules 1992 (the 1992
Code) and, in particular, Rule 3 thereof.
You have observed that that Rule was disregarded in the present
case. I am wholly in agreement with that
view. In these circumstances, it must be
a matter for consideration by the relevant authority as to how the proper
operation of this desirable Rule should be reinforced. At the present time it may be that any breach
of it simply goes undetected with the consequence that the vital interests of a
client in what may be, for him, a very serious situation, may be damaged.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord Nimmo Smith
|
[2009]
HCJAC 19
Appeal
No. XC23/03
OPINION OF LORD NIMMO
SMITH
In the Appeal
by
ALEXANDER WOODSIDE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the appellant:
Shead, Richardson; Culley &
McAlpine, Perth
For the Crown:
Stewart QC, AD; Crown Agent
18 February 2009
[86] I agree with your Lordship in the Chair
that, for the reasons given by your Lordship, the appeal should be refused on
the grounds thus far considered. I wish
only to add a few words about the professional issues which the appeal has
exposed.
[87] An Anderson appeal such as this is bound to give rise to scrutiny, no
doubt unwelcome, of the professional conduct of those who represented the
appellant at the time of his trial. It
is perhaps unfortunate that we have had to scrutinise the professional conduct
of the present appellant's representatives so long after the trial, and that it
is their shortcomings which have come to be exposed. Your Lordship's criticisms are, however,
fully justified; and the case provides an opportunity to express concern about
the current arrangements for the instruction of solicitors with extended rights
of audience in the High Court of Justiciary.
An in-house arrangement, such as that whereby Mr McGlashan instructed Mr
Brown, is bound to attract scrutiny, and should be able to withstand it. There is anecdotal evidence that in other
cases the arrangement is that solicitors in different firms take it in turns to
act as instructing solicitor and solicitor advocate. This can hardly have been what Parliament had
in mind in enacting section 24 of the 1990 Act.
[88] The trial
in the present case took place before the Scotland Act 1998 and the Human
Rights Act 1998 came into force. As we
have seen in many cases in this court, Article 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.
