APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Wheatley Lord Reed Lord Carloway	[2008]HCJAC 56 Appeal No: XC320/04     OPINION OF THE COURT   delivered by LORD CARLOWAY   in the   NOTE OF APPEAL AGAINST CONVICTION and SENTENCE   by   JOHN JOSEPH McCARTHY   Appellant against   HER MAJESTY'S ADVOCATE Respondent ­­­­­­­­­­­­­­­­­________________ ­­­­­­­­­­­­­­­­­

 

Act : Shead, M.C. MacKenzie (part), Party (part); Robertson & Ross (Paisley)

Alt : DAC Young AD; Crown Agent

 

2 October 2008

 

1.                  Procedure

 

On 22 March 2004 at the High Court in Glasgow the appellant was found guilty, by majority verdicts, of two groups of charges. The first involved three offences of having sexual intercourse with two girls under the age of sixteen years (PMcC and LG). The second related to two periods during which the appellant had been concerned in the supply of Class A drugs (heroin and cocaine) to others, notably females (PG, AG, LMcF and AMcC). A large quantity of drugs had been found concealed behind a fireplace in the appellant's flat. The appellant had just been released on parole from an eight year prison sentence for concern in the supply of heroin and, consequently, was made the subject of a return order of two years in that regard, to be followed by two concurrent sentences of imprisonment on the two groups of charges. These were respectively for two years and six months and six years and eleven months.

The appellant's complaints centre upon his representation both at the trial and in the appeal process. At the outset it has to be observed that the proceedings at first instance and on appeal are remarkable for the quite extraordinary amount of delay occurring in them as a result of repeated, successful applications by the appellant's representatives either to adjourn diets or to avoid fixing substantive diets. Reading the Minutes recording the procedure is a depressing task and their content is a sad reflection upon the operation of the rules of procedure.

The appellant was originally indicted, along with a co-accused, to a trial diet as early as February, 2003; over five years ago. The trial diet was postponed on defence motions on three occasions. When the indictment eventually called for trial in October, the co-accused failed to appear and the diet was deserted by the Crown. It was re-indicted almost immediately and a new trial diet was fixed for 12 December 2003. At that time, the appellant was represented by a skilled and experienced counsel (Findlay QC). On the morning of the diet, his counsel withdrew from acting. His agents also withdrew; suggesting that there was a difference in view between the appellant and his legal team in relation to the manner in which the defence was to be presented. The diet was adjourned and new agents were instructed. These agents in turn engaged another skilled and experienced counsel (Prais QC). In late January 2004, an application

under section 275 of the Criminal Procedure (Scotland) Act 1995 (c 46) was heard and disposed of, thus focusing the potential lines of cross examination of the complainers in the sexual offences libelled. At this juncture, the court was advised by the defence that the case was "ready for trial". However, when it called for trial on 2 February, the new agents and counsel withdrew from acting in what appear to have been very similar circumstances to the departure of the appellant's original representatives. The court indulged the appellant by affording him time to find a third set of agents and, over the following few days, the court was assured that this was being done.

By 23 February it appeared that yet another skilled and experienced counsel (Macleod QC) had been engaged by the new agents. However, yet again, all withdrew from acting, leading, on 26 February, to the court appointing a new solicitor (Paul Reid). It is this appointment which is the subject of complaint in the appeal (infra). Mr Reid instructed two solicitor-advocates to conduct the appellant's defence at the trial. The leading solicitor-advocate (J Keegan) is a skilled and experienced criminal practitioner. He did conduct the defence at the trial and addressed the jury on the appellant's behalf. Although the appellant was convicted of the two groups of charges already mentioned, he was acquitted of: charges of indecent assault and rape of two complainers (PG and NMcC); assault and rape of another two complainers (PMcC and LG); and charges of concern in the supply of Class B drugs (amphetamine and methylamphetamine). In these respects, the defence presented met with some considerable success.

Once the trial had been completed, the appellant was afforded three extensions of time within which to lodge grounds of appeal. The grounds were eventually lodged in October (over six months after conviction). They were some fourteen in number, all handwritten by the appellant himself. They included so called "Anderson" type complaints (defective representation; Anderson v HM Advocate 1996 JC 29, SCCR 114) (infra). The appellant had by this time parted company with the fourth set of advisers, who had represented him at the trial diet. On 15 January 2005 leave to appeal was refused in terms of section 107 of the 1995 Act (supra). The sifting judge, who had considered the reports of the trial judge and the appellant's legal representatives at the trial, reasoned that: "there is no basis disclosed in the grounds of appeal upon which it could reasonably be argued that any miscarriage occurred in the conduct of the appellant's trial". However, at second sift in February 2005, leave to appeal was granted but on one ground only, namely number (7), which was of an "Anderson" type. In addition the second sift judges allowed leave to present a further ground, which had not been raised by the appellant, concerning the competency of the appointment of the new solicitor in terms of section 288D of the 1995 Act (infra).

Notwithstanding the limited nature of the grounds of appeal allowed to proceed as a result of the decisions at the sift stage, the appellant was permitted over a year, not to prepare his appeal, but in which to consider the prospect of lodging additional grounds of appeal. This came about as a consequence of some five Procedural Hearings in terms of paragraph 15.5A of the Act of Adjournal (Criminal Procedure Rules) 1996 (SI No 513). The first of these was on 29 June 2005. It had been preceded by the lodging of Form 15.5A-B, which was signed by the counsel who ultimately appeared at what was to be the far distant substantive appeal hearing and in the many Procedural Hearings preceding it. The Form stated simply that the appeal was not ready to proceed because: "It is desired to consult and discuss the grounds of appeal and the responses from his former advisers". The order of the Court states that a further Procedural Hearing was to be held in September 2005, but the next order is in respect of a Procedural Hearing on 11 November, which was continued for one week "in view of the fact that the nominated counsel has indicated that a consultation with the appellant is required".

The case was withdrawn from a Procedural Hearing on18 November as "it is intended that consideration be given to the formulation of additional grounds of appeal". Twenty one days was allowed within which any additional grounds might be lodged. That was not done. The case was withdrawn from the next Procedural Hearing, scheduled for 13 January 2006, because "the appellant has raised questions that will require to be discussed at consultation before a final decision can be taken about the scope of the appeal". Counsel predicted that four weeks would suffice for that purpose. If it did, then no further grounds were lodged within that timescale. The cause was again withdrawn from the next Procedural Hearing, set down for 10 March 2006, because "consideration is being given to amendments to the grounds of appeal". Another twenty one days was allowed in which to lodge the "proposed amendments". The time spent in processing the appeal to that date had thus been exhausted not in relation to the appeal itself but in permitting the formulation of unknown grounds upon which leave to appeal had not been granted.

What were recorded as substitute "Grounds of Appeal" were lodged, but this prompted the withdrawal of the case from a Procedural Hearing on 11 April and a remit to another Procedural Hearing with a view to considering whether a further report from the trial judge would be needed "if these grounds of appeal are allowed to be received". In the Form 15.5A-B which preceded that Hearing, it was said that "disclosure is to be sought from the Crown".

When the case eventually called on 5 May 2006, the Court permitted what were then termed "supplementary grounds of appeal" to be "received". These raised, for the first time, two entirely new points. The first ( a) infra) was based upon the incompatibility of the legislation, which permits the Court to appoint a solicitor to an accused person, with the appellant's rights under Article 6 of the European Convention on Human Rights and Fundamental Freedoms. Notwithstanding the nature of that ground, no notice of the raising of a "devolution issue" in terms of rule 40.2 was given. The second was a baldly stated ground ( b)) challenging the reasonableness of the jury's verdicts on the first group of charges. The only specification in this ground, other than its reference to two pages of the trial judge's report, was that "The nature and quality of the evidence did not warrant conviction".

Reports were ordered from the trial judge (Lord Emslie) and the judge who had appointed the solicitor (Lord Menzies); with the former being asked to advise on any necessary transcriptions of evidence. The supplementary grounds were not subjected to any sift process. Rather, what followed were a further fifteen Procedural Hearings. At the risk of inducing despair, it merits recording what is minuted to have happened at these. The first was scheduled for 1 August 2006, but the case was withdrawn from it pending an application being made for the transcription of particular tracts of evidence. Fourteen days was allowed for that task. The case was withdrawn from Procedural Hearings on 20 September and 3 November 2006 as the transcripts were not available. It was withdrawn from one on 20 December because "the appellant has recently raised an issue which requires to be discussed at consultation". It was withdrawn from that of 23 January 2007 because "it has not been possible to arrange a consultation with the appellant due to pressure of business". Notwithstanding the Court appointing another diet on 9 February, the case was withdrawn from that because "the appellant has raised an issue which requires further consultation and this has not been possible due to pressure of business".

The case called at a Procedural Hearing on 21 February 2007. Counsel confirmed that he had consulted with the appellant on 19 February as a result of which "matters had arisen which require investigation and...the question of Disclosure may become an issue". It will be recalled that the issue of disclosure had been raised at the Hearing on 11 April 2006. The court stated that a Procedural Hearing would be held on 21 March which, "in the absence of significant developments in preparations for the appeal" would assign the appeal to a hearing. On the morning of that Procedural Hearing, a letter from the appellant was said to have been received, which appeared to indicate that the appellant wished to abandon his appeal. This necessitated another Procedural Hearing on 18 April, at which counsel advised that he "required further time to consult with the appellant". The case was withdrawn from yet another such Hearing on 10 May because "further time is required for investigations".

The case then took another turn. It was withdrawn from the next Procedural Hearing on 21 June because, by then, the appellant had applied for access to video tapes, which had recorded the police searches of the appellant's house, during which the drugs had been found (infra). The case called to determine that application on 7 August, when counsel submitted that the tape he sought was a "second" tape of the search, which had not been a production at the trial. He stated that its existence might result in amendment to the grounds of appeal. The Crown denied that they had been asked about a "second" tape and the case was continued to allow further enquiries into this matter. At the next calling on 21 September, it was reported that the "tapes" had been located and the court authorised their viewing by the appellant's advisers. The court had planned to hold another hearing four weeks hence in order to consider any matters arising from the tapes. However, first, the next Procedural Hearing did not occur until 23 October. Secondly, at that diet the court was informed that the tapes had not been viewed because of a "misunderstanding" between the local procurator fiscal and the appellant's agents. The court directed that they should be viewed within fourteen days and a further Hearing was appointed for 13 November. On that date the appellant moved for a further continuation so that he could view the video tapes with his advisers and consult further. That motion was refused "having regard to the history of the case" and an order was made to appoint a hearing on the merits of the appeal quam primum; hence the eventual hearing on 26 and 27 August 2008.

The reason for recording the detail of these events is in order to identify the number of Procedural Hearings at which it was repeatedly said that the case was not ready to proceed to a full hearing for a variety of reasons, some being apparently the same as had been tabled months before. Most, if not all, of the reasons given were unrelated to the grounds of appeal for which leave had been given by the sifting judges. Many involved requests for additional time to explore potential grounds of appeal which, as will be seen, had already been refused by the sifting judges. It may be commented that, if the system of appeals in terms of the current legislation is to operate with some degree of efficiency, then an appellate Court must focus its attention on what the grounds of appeal, for which leave has been given, actually are. It will ordinarily wish to encourage the appeal to proceed with expedition to a full hearing on these grounds and, in the absence of an application to amend the grounds, these grounds alone. Equally, those representing an appellant have to be trusted to apply themselves to the proper expedition of the appeal on the grounds for which leave has been granted and to complete any necessary preparations in advance of Procedural Hearings as distinct from using the existence of these Hearings to request time upon which to embark upon expeditions unrelated to the permitted grounds or to carry out additional work which could have been performed in advance of the appointed diet. In this case, as will also be seen, the exercises involving the production of transcripts and of searching for video tapes proved to be expensive distractions from what was ultimately relevant to a proper consideration of the permitted grounds of appeal.

 

2.                  The Grounds of Appeal and Devolution Issues

The sole ground of appeal, which was contained in the appellant's handwritten grounds and allowed leave, reads as follows:

"(7) I gave my lawyer Mr Reid about 30 questions I thought would be of help in my case. I did not get an answer to any of them from him. I asked him for an answer to one of the points I asked him to look at why could he not get the charges separated (sic). The only thing he would say was they will not separate the charges."

 

But the appellant had, as already noted, tendered a number of other grounds, for which leave to appeal had been refused. In light of the submissions made by the appellant at the hearing and the reasons given for several of the continuations of Procedural Hearings, some of these warrant a summary. Ground (1) raised a question about whether the appellant could have defended himself if he had elected not to cross-examine the complainers. Ground (4) related to the evidence of LG and the refusal of the appellant's solicitor-advocate to cross examine this witness by using the video of the search which, the appellant maintained, showed her admitting that a small amount of cocaine found in the appellant's pocket was hers. Ground (5) concerned an alleged failure of the appellant's legal team to pursue a Commission and Diligence to recover social work (and/or perhaps medical) records relating to LG which, the appellant claimed, would have proved that LG had undergone a miscarriage or an abortion before the alleged incident involving her. This, it was said, would have discredited medical "evidence" that LG had claimed to be a virgin at the time of the incident. Ground (6) complained that the appellant's solicitor-advocate failed to advise the jury about LG being tested for drugs in hospital soon after the incident and there being no cocaine found in her system despite her testimony that the appellant had given her that drug. Ground (8) was that the appellant's solicitor-advocate had failed to remind the jury that there was no scientific or fingerprint evidence against the appellant connecting him to the drugs. Ground (9) alleged that one complainer (PMcC) had had an affair with a care worker. Ground (10) related to the video tapes of the search, specified as labels 50 and 51. Ground (11) presented a reason for the complainers in the charges, upon which the appellant was found guilty of underage sex, making up the allegations, namely non payment of money for acting as drugs couriers for the appellant's girlfriend (AMcC). The final ground (14) reverted to ground (1).

It was perhaps the nature of the final ground that prompted the second sift judges to allow a ground of appeal not raised by the appellant, viz.:

"the competency of the order...under s 288D of the 1995 Act appointing Mr Reid to defend the appellant on an indictment that included charges not falling under s 288C".

 

All that need be said about that ground is that it was not argued and therefore no opinion upon its merits is expressed. This ostensibly left ground (7), as a sole ground of appeal. This appears to be an "Anderson" point complaining of the appellant's representatives failing to apply for a separation of charges (at least that is what was ultimately argued under its umbrella). However, the first of the supplementary grounds (the terms of the second have already been noted), which emerged for the first time over two years after the conviction, was in the following terms:

"a) The presiding judge erred in granting the order under s 288D of the 1995 Act. It is submitted that in the circumstances that then pertained the stage had not been reached when it was appropriate to make the order. An order of the kind made was an interference with the appellant's rights under Article 6(3)(c) of the Convention. In the present case that interference was not justified. The effect of the order was that the appellant was denied the fair trial to which he was entitled.

Separatim. The order pronounced was unlawful. Reference is made to section 6 of the Human Rights Act 1988.

Separatim. Seeking the conviction of the appellant when he was not represented by someone of his own choosing was an act of the Lord Advocate which was incompatible with the appellant's rights under Articles 6(3)(c) and 6(1) of the Convention. Accordingly it was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.

Separatim. The provisions of sections 288C and 228D (sic) were introduced by the Sexual Offences (Procedure and Evidence)(Scotland) Act 2002.

By virtue of section 29(1) of the Scotland Act 1998 an Act of the Scottish Parliament is not law in so far as any provision of the Act is outwith the legislative competence of the Parliament.

A provision is outside that competence if it is incompatible with any of the Convention rights. The relevant provisions are incompatible with the rights under Articles 6(3)(c) and Article 6(1) of the Convention.

Separatim. In the circumstances justice was neither done not (sic) was it seen to be done".

 

It is reasonably apparent that much of this new ground involved at least one "devolution issue", yet no Notice of such an issue was lodged at the time or for some considerable time thereafter.

By letter dated 19 August 2008 (only seven days before the appeal hearing) a Minute (Minute No 1) was sent to Justiciary Office by the appellant's agents (received 21 August) seeking, for the first time, to raise a devolution issue. This document refers in brief to the relevant terms of the Scotland Act 1988 (c 46) and to Article 6.1. It continues:

"4. Reference is made to the grounds of appeal and the contentions contained therein.

5 Separatim. For the Lord Advocate to seek to support the convictions would be for her to act in a way which would be incompatible with the Minuter's rights under Article 6(1) of the Convention and accordingly ultra vires".

 

On the day before the hearing, another Minute (Minute No 2) was tendered to Justiciary Office purporting to raise another devolution issue. This document is in very strange terms. It refers to an obligation resting on the respondent to disclose, prior to trial, information which might tend to exculpate the appellant or undermine the case against him. It then specifies that, in relation to the appellant, the respondent had an obligation to disclose:

"a. all witness statements (except in so far as already disclosed)

b. any information which may cast doubt on the credibility or reliability of the Crown witnesses including records of any previous convictions or outstanding charges;

c. the results of all forensic investigations undertaken

d. any documents relating to the systems operated at the time of the investigations and the trial by the police and the prosecution for ensuring that records were kept of all material gathered in the course of the inquiry into the death of the deceased;

e. all records kept in connection with that inquiry detailing the material ingathered".

 

Before dealing with the merits of the appellant's attempts to have these Minutes received by the court, it is worth pausing to consider the rules which govern that receipt. First, in terms of rule 40.2.(1), such a devolution issue must be raised within seven days of the service of the indictment (rather than within seven days of a substantive appeal hearing) unless, in terms of rule 40.5.(1) cause is shown otherwise. Secondly, in terms of rule 40.6, the Minute raising the issue must "specify the facts and circumstances and contentions of law on the basis of which it is alleged that a devolution issue arises in the proceedings in sufficient detail to enable to court to determine...whether a devolution issue arises in the proceedings".

In an appeal, at least unless there is a complaint about the appeal process, a devolution issue can only arise in the context of the grounds of appeal for which leave to appeal has been granted. These grounds, including any additional grounds identified by the court at the sifting stage, define the scope of the appeal. If the issue raised in the Minute cannot properly be related to the grounds, no devolution minute can arise "in the proceedings". The terms of the appellant's Minute (No 2), which refer to issues of disclosure, are not related in any way to the grounds of appeal, which do not complain of any lack of disclosure. The latter is not at all surprising. It is clear from the trial papers that witness statements were disclosed, as they were used in an attempt to discredit the complainers on the sexual offences charged. The witnesses, who testified to the facts in the charges of which the appellant was convicted, were primarily police officers or persons under sixteen. It seems likely that the extent of their criminal records would be limited. Other witnesses were known prostitutes and this was brought out in evidence. The defence position was that there was no forensic evidence, hence presumably the lack of any disclosed. The final two heads of the Minute relate to inquiries into someone's death. There is no indication that anyone connected with this case has died. Even allowing for the occasional slip caused by "cut and paste" toolbars, the presence of these paragraphs in a document signed and presented to the court is far from satisfactory. It is thus plain that no devolution issue arises on the ground of non disclosure and that, in any event, the Minute is far too late to merit consideration. Its receipt was accordingly refused.

The appellant's Minute (No 1) poses greater problems. It is clearly very late and no acceptable explanation for this was forthcoming. Indeed, the late lodging of both Minutes caused a delay in the hearing of the substantive appeal for at least two hours; a situation which is also far from satisfactory. This Minute purported to relate, albeit in the most general of terms, to the "grounds of appeal". As already observed, supplementary ground "1 a)" appeared to give notice of a ground of appeal which raised at least one devolution issue, namely the compatibility of the terms of section 288D with Article 6. On that basis, the court was inclined, in principle, to allow a devolution issue to be raised were a Minute, which conformed at least broadly with the rule requiring it to specify the facts and circumstances and contentions of law involved, to be lodged. The existing Minute did not do that. The court spent some time attempting, with no success, to tease out of the appellant's counsel the nature and extent of the devolution issues which he intended to raise. It adjourned for well over an hour to allow an amended Minute to be tendered for consideration.

When the Minute so tendered is scrutinised, it becomes apparent that it too fails to comply with the rule. It lacks specification and clarity of precisely which ground of appeal it relates to and how it does so. It reads:

"Reference is made to the grounds of appeal and the contentions contained therein. In particular reference is made to the matters specified in the supplementary grounds of appeal.

There are two principal issues raised. The first relates to whether the Scottish Parliament acted within its competence. The second is whether in any event the Lord Advocate acted in a way which was ultra vires.

In order to decide whether the Lord Advocate's act, at the time of the trial in seeking convictions, was ultra vires consideration should be given to whether other steps should have been taken to avoid the apparent necessity of making an order under 288D of the 1995 Act (as amended). If the focus requires to be on the right to a fair trial (as opposed to the rights guaranteed by Article 6(3)(c) then it follows that a consideration of all relevant safeguards is appropriate. Among those procedural safeguards consideration could have been given to separating the charges. On the face of it that would have removed any need to make the order. It appears no steps were taken at the instance of the Lord Advocate to seek such a separation".

 

The Court was concerned to understand to just which grounds of appeal the proposed devolution issue related. It was readily understandable that the compatibility point within supplementary ground 1 a) might raise such an issue, but it was not possible to grasp how ground 1 b) could do so. The Court struggled to grasp the basis upon which the Lord Advocate might have sought a separation of charges, when she could, in any event, achieve such an object without any authority of the court. It was also not easy to follow why a separation of charges would have avoided the need to appoint a solicitor, given that the sexual offences charges would still have remained extant. Counsel declined the court's repeated invitations to make the appellant's position clear. Ultimately, he appeared to be submitting that any perceived fault, which might be revealed during his submissions in the appeal, occurring at any stage of the trial proceedings (including the potential unreasonableness of the jury's verdicts) might give rise to a devolution issue.

In this unfortunate state of affairs, in the absence of any greater specification of, and clarity in, the nature and extent of the issues to be raised and the lateness of the Minute, the court is constrained to refuse to allow either of these two minutes to be received. Nevertheless, given the past procedure in the case, the court proceeded to hear argument covering all live grounds of appeal.

 

3. Grounds of Appeal

(a) COMPATIBILITY OF SUB-SECTIONS 288C and 288D WITH ARTICLE 6 (Supplementary Ground 1 a))

 

Article 6.1 provides that everyone is entitled to a "fair...hearing" in the determination of a criminal charge against him. Article 6.3 states that:

"Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".

 

Following upon the raising of certain concerns about accused persons cross-examining their alleged victims in person, the Scottish Parliament enacted the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9). Sections 1 and 2 introduced sub-sections 288C and 288D into the 1995 Act (supra). They are in, amongst others, the following terms:

"288C. (1) An accused charged with a sexual offence...is prohibited from conducting

...

(b) his defence in person at the trial...

...

288D.

...

(2) Where the court ascertains that -

(a) the accused has not engaged a solicitor for the purposes of

...

(ii) his defence at the trial...; or

(b) having engaged a solicitor for those purposes, the accused has dismissed him; or

(c) the accused's solicitor has withdrawn,

then, where the court is not satisfied that the accused intends to engage a solicitor or, as the case may be, another solicitor for those purposes, it shall, at its own hand, appoint a solicitor for those purposes.

(3) A solicitor so appointed is not susceptible to dismissal by the accused or obliged to comply with any instruction by the accused to dismiss counsel.

(4) Subject to subsection (3) above, it is the duty of a solicitor so appointed -

(a) to ascertain and act upon the instructions of the accused...".

 

The problem in this case arose in this way. As outlined above, the appellant had had the benefit of advice from three of the most skilled and experienced counsel and agents in practice by the time the last of these withdrew from acting, when the case called on 26 February 2004. The transcript of the proceedings that day reveals that the somewhat convoluted history of the case was explored before the court by the Advocate Depute. The appellant had been advised by his last set of representatives that he would require to obtain alternative representation, which failing there was a strong possibility that the court would appoint such representation. The judge asked the appellant whether he intended to instruct another solicitor. The appellant replied: "Hopefully, your honour, but I had a great deal of difficulty getting lawyers from Scotland to defend me...". He put forward an involved explanation for his problems. There then ensued the following exchange:

"LORD MENZIES: ...You still don't as of now have a solicitor and counsel and it seems to me from what you have said you are going to have difficulties appointing a solicitor. You have had difficulties finding one that will act on your behalf, is that correct?

THE ACCUSED MCCARTHY: Yes, your Honour.

LORD MENZIES: And the Scottish Parliament has legislated that in a trial of this kind you cannot conduct your own defence. You have to have a solicitor and counsel acting on your behalf. Do you understand that?

THE ACCUSED MCCARTHY: Can I conduct my defence if I don't cross-examine the witnesses?

LORD MENZIES: No. My...

THE ACCUSED MCCARTHY: Well, I must have been given the wrong advice because I was told by a solicitor...you can do your own defence if you don't cross examine the accusers. I don't know if I am capable of doing it like that. I would really like to be represented by a solicitor and a QC.

...

LORD MENZIES: ...It seems to me that the time has come for the Court to appoint a solicitor and it also seems to me that I have no discretion in the matter now, given the history that I have been given".

 

However, a solicitor was not appointed at that stage. Rather, the matter was adjourned for some time before being recalled later in the day. At that stage, the appellant was represented by counsel. That counsel said:

"...I appear at this stage on behalf of the panel John Joseph McCarthy...I understand the case calls this afternoon to allow your Lordship to consider invoking the powers in terms of Section 288D which allow the Court to appoint a solicitor to act on behalf of the accused. A solicitor has been identified who is in a position to assist and I invite my Lord to invoke that Section....The solicitor is Mr Reid, my Lord, of the firm of Fleming and Reid".

 

It is clear that Mr Reid had, by this time, met with the appellant. Counsel advised the Court that Mr Reid wished to instruct counsel for the trial and needed some time to do that. The following exchange then occurred:

"LORD MENZIES: Mr McCarthy, you have had a chance to speak to Mr Reid this morning, is that right?

THE ACCUSED MCCARTHY: Yes.

LORD MENZIES: And you will have heard that what is being proposed is that the Court should appoint Mr Reid as solicitor to act on your behalf in this matter, I am minded to do that unless there is something that you have to say which would persuade me otherwise.

THE ACCUSED MCCARTHY: There is not much I can really say, your Honour, because I have had a great difficulty in getting a lawyer to represent us. I'm really, I don't think it is right a solicitor is being forced on us but saying that, I probably won't be able to get one and I'm going to have to...On the point of Mr Reid, I spoke to him today, I will go along with him acting for us, there is nothing much I can do about it. Maybe he will turn out to be better than any of the rest of them will, I don't know".

 

With regard to his representation, the appellant said that he had not sacked his previous representatives. Rather, they had all "left".

In that state of affairs, the court appointed Mr Reid in terms of section 288D on the afternoon of 26 February. Mr Reid instructed Mr Keegan to conduct the defence at the trial as the leading solicitor-advocate of the two instructed. A further section 275 application was made to enable the appellant to cross examine PMcC and LG to the effect, amongst other things, that they were engaged in the transportation of drugs and were "street wise". The trial commenced on 9 March without further complaint. The appellant was represented throughout by Mr Keegan, as instructed by Mr Reid.

At the appeal hearing it was submitted by counsel for the appellant that the provisions of sections 288C and 288D were incompatible with Article 6. Reference was made, at some length, to the terms of a Scottish Executive pre legislation consultation document entitled "Redressing the Balance : Cross Examination in Rape and Sexual Offence Trials". This document set out a number of options for reform of the law, some of which were said to be less "invasive" of Article 6 than the option ultimately adopted by Parliament. It was asserted, under reference to the document, that the reforms had been prompted first by cases from England and Wales which were not identified by formal citations. Secondly, the number of these cases had been very small. Thirdly, the risk of abusing the right to cross examine had not been high. Fourthly, there had been no research which showed that the Court had been failing in its duty to protect witnesses from harassment or intimidation. The purpose of this submission was to explore the balance achieved by Parliament in pursuing, what was accepted to be a legitimate legislative aim (the protection of witnesses) with the basic principle of fairness. The submission was that a correct balance had not been achieved.

In terms of sub-section 101(2) of the Scotland Act 1998 (c 46), in determining whether a legislative provision is compatible with the Convention, that provision has to be read as narrowly as is required for it to be within the competence of Parliament (Flynn v HM Advocate 2004 JC (PC) 1; 2004 SCCR 281, Lord Hope of Craighead at paras 37-38, Lord Rodger of Earlsferry at para 71; HM Advocate v DS 2007 JC (PC) 1; 2007 SCCR 222, Lord Hope at para 21). In relation to the content of the rights afforded by Article 6, it was accepted that the right to legal assistance of a person's own choosing was a qualified one and did not carry with it a right to the services of a particular lawyer, irrespective of that lawyer's availability or willingness to act (Vickers v Buchanan 2002 SCCR 637). However, Article 6.3.(c) involved three distinct rights. The first was the right to defend oneself, the second the right to legal representation and the third the right to funding of that representation (Pakelli v Germany (1983) 6 EHRR 1; Series A No 64, para 31). This was so notwithstanding Croissant v Germany (1992) 16 EHRR 135, Series A No 237-B, paras 27- 32. The question was whether the terms of the legislation could be seen as justified as imposed in pursuance of a legitimate aim (M(M) v HM Advocate 2004 SCCR 658, Lord Macfadyen at para 43, Lord Justice Clerk (Gill) at paras 29 - 32). Standing the lesser options which had been available to Parliament, as outlined in the consultation document, the legislation could not be seen as so justified.

This line of argument was not further developed. In a somewhat ironic twist, at this point in the submissions, counsel sought leave to withdraw from acting, presumably because he was not prepared (for good reason (infra)) to present the appeal as the appellant wished. The appellant conducted the remainder of his appeal in person, although, oddly (given what the appellant sought to argue thereafter), his agents remained acting for him.

The Advocate Depute submitted that, although the right to a fair trial is an absolute one, the subsidiary rights in Article 6.3(c) are not. It was not incompatible with his Convention rights that an accused person is prevented from representing himself (Croissant v Germany (supra)). The right is to representation in person or through a lawyer (see also the Commission decision in X v Austria, 3 April 1967, unreported, No 2676/65, BAILII: [1967] ECHR 27). In this type of case, the accused is notified, when served with the indictment, of the need to be represented. Section 288C was conceived for the protection of witnesses and that is acknowledged to be an appropriate consideration (Doorson v Netherlands (1996) 22 EHRR 330, RJD 1996-ii 466 at para 70, quoted in M (M) v HM Advocate (supra) at para 28). There was no restriction of the appellant's rights under Article 6(3) and the provisions of sections 288C and 288D were accordingly within the competency of the Parliament.

An analysis of the issue of whether sections 288C and 288D are incompatible with a Convention right involves primarily an examination of the wording of the provisions themselves to see what their effect is and whether that effect cuts across that right (HM Advocate v DS (supra) Lord Rodger at para. 79). An exploration of the terms of a consultation document, which preceded the debates in Parliament, is of little, if any, assistance. The rights which the provisions are said to contravene are those in Article 6.3.(c) to "defend himself in person or through legal assistance of his own choosing". The first question is whether a provision which prohibits an accused from defending himself in person is a contravention of article 6.3.(c). The answer to that is in the negative. This was made clear by the European Court of Human Rights in Croissant v Germany (supra) when examining Article 140 of the German Code of Criminal Procedure which provided that "(1) The assistance of a defence counsel is necessary where: 1. the trial at first instance is conducted in the Court of Appeal or the Regional Court; ...". This requirement, effectively to be represented by a lawyer, which the Court recognised found parallels in the legislation of other Contracting States, "cannot...be deemed incompatible with the Convention" (para 27). That would seem to be an end of this issue. The decision in Croissant v Germany (supra) does not contradict the Court's views in the earlier case of Pakelli v Germany (supra). In the latter, there is a useful comparison of the French and English texts of Article 6(3) relative to the use of "or" on two occasions in the English text as distinct from "ou" and then "et" in the French. The Court has made it clear, through its dicta in these two cases, that the right in Article 6.3 is satisfied if the accused is permitted either to represent himself or is represented by a lawyer. It is not expressed as a right to chose to represent oneself. However, given the wording about the provision of means, the Article must also be interpreted as implying that, if the accused wishes a lawyer to represent him, then he must be afforded the means to engage one. In short, if a system allows a person to be represented by a lawyer, then Article 6.3.(c) will be satisfied.

The second issue is whether the statutory provisions contravene the right of an accused person to have legal assistance of his own choosing. The answer to that is also firmly in the negative. The provisions do not in any way impede an accused person from selecting his legal representatives from those available and willing to act for him. It is only where the accused person has not done so, and the court is "not satisfied that the accused intends to engage a solicitor" that it can appoint one. Even then, the Court's powers are limited to appointing a solicitor; leaving it to that solicitor to select an appropriate independent counsel or solicitor-advocate to present the case in court. That is what was done in the appellant's case. The appeal on the basis of compatibility must therefore fail.

In any event, several further matters deserve mention. First, despite the nature of the argument presented on the right to defend oneself, the transcript of the proceedings before Lord Menzies makes it clear that the appellant did not want to defend himself. He wanted to be represented by a "solicitor and a QC". Secondly, the appellant did initially (presumably) select a solicitor of his choice, who in turn instructed counsel. The court permitted him to instruct a new solicitor on at least two occasions after that. It is clear to the court that he parted company with these representatives because he wanted his case presented in a way which was not permissible as a matter of law or ethics or both; hence the withdrawal of all these representatives. It is difficult to see how, in the appellant's case, it could be said that Article 6.3.(c) could be said to be contravened in these circumstances. Thirdly, the appointment of the solicitor by Lord Menzies was at the appellant's own instance, even if he was not entirely happy about it. Fourthly, the choice of Mr Reid was not that of the Court. It was that of the appellant. Finally, given that the appellant was represented by a skilled and competent solicitor-advocate, selected not by the Court but by (presumably) Mr Reid, it is difficult to see how a miscarriage of justice could have occurred simply as a result of Mr Reid's appointment.

 

(b) SEPARATION OF CHARGES (original Ground 7)

The appellant, in person, submitted that the charges ought to have been separated. The sole reason given for this was that it would have enabled him to defend himself on the drugs charges. The Advocate Depute's response to this was that the Court would not have separated the sexual offences charges from the drugs charges given the inter-relationship of the evidence in both groups. It would not have been possible to lead evidence about what were libels of rape on the indictment without leading evidence of the supply of drugs to the various complainers. Furthermore, the defence proposed to raise the issue of drug dealing by some of the complainers themselves. The evidence anticipated and led was that, in respect of charge (1), the complainer PG said that she had gone to the appellant's flat with AG in order to get drugs and had been given heroin by the appellant on the night before and the morning of the alleged rape. On charge (2), the complainer NMcC was again saying that she had gone to the appellant's flat to obtain drugs, when the rape took place. The complainer (PMcC) in charges (3) and (5), was the sister of the appellant's co-accused (AMcC). She maintained that after the sexual episode in charge (3), her sister had been given drugs by the appellant in exchange for money given by the appellant to the complainer for participation in that episode. She had returned to the flat in relation to charge (5) because her sister was pleading with her to have sexual relations with the appellant so that she (the sister) could be supplied with drugs by him. On charge (4) the circumstances were similar, with the complainer LG going with the co-accused who was to be given drugs were she able to persuade the complainer to have sex with the appellant. The appellant was said to have made up lines of cocaine and to have given the co-accused a bag of heroin.

There was no motion for separation of charges. That being so, in order to succeed on this ground, the appellant would have to persuade the court that a miscarriage of justice occurred as a result of his legal representative's failure to move for such a separation. Leaving aside the fact that any such motion ought to have been made well in advance of the trial diet, it is difficult to see how such a failure could meet the familiar test for a miscarriage of justice in defective representation cases (Grant v HM Advocate 2006 JC 205; SCCR 365, Lord Justice-Clerk (Gill) at para [21]). Application for separation of charges is primarily a matter of defence tactics or strategy and the failure or absence of such an application does not prevent an accused person's defence being put before a jury, thus ensuring a fair trial. But in any event, it is clear that no such motion could have succeeded even if it had been made, and made timeously. Such a motion would only have been granted if the appellant could have demonstrated that trying the charges together would have created the risk of material prejudice to him. It was not argued that any such prejudice could have occurred, the only reason advanced for separation being that he could have defended himself in a separate trial for the drugs offences (even although, as narrated above, he said in advance of the trial that he did not want to defend himself). There was a clear inter-relationship in time and place between the drugs and sexual offences and an intermingling of the evidence of drug taking and supplying with the sexual offences themselves. In such circumstances, any motion for a separation would have been doomed to failure.

 

(c) THE REASONABLENESS OF THE VERDICTS ON THE SEX OFFENCES (Supplementary Ground 1 b))

 

As already noted, there is a startling lack of specification in this ground. It makes a general reference to pages 3 and 4 of the report from the trial judge. This may be intended to incorporate the following passage from the report into the ground:

"The evidence led against the appellant on the alleged sexual offences was contradictory and unimpressive. The relevant complainers all gave graphic accounts of being raped in the appellant's flat after going there to obtain drugs for themselves or for an accompanying third party. However, PG, the complainer in Charge 1, was directly contradicted by her friend AG, who (in a contemporaneous police statement) described consensual sex taking place on more than one occasion in return for the appellant's provision of food, drink, drugs and overnight accommodation. Both PG and AG were working as prostitutes at that time. The young complainers in the charges 3-5 inclusive were similarly contradicted by the second accused, who was present on each occasion and (in an earlier police interview which was not evidence against the appellant) described consensual sex in return for money (up to £100) and drugs. In addition, it transpired that these complainers had in the past given equally graphic accounts of sex with a 15 year old boy, of being raped by a 30 year old man after meeting him in a club, and of both being tied up and raped at the same time after going to the appellant's flat together. It came as no real surprise when the jury rejected all of the rape charges against both accused, but I believe that it was open to them to go on, as they did, to find the appellant guilty of the alternative offences under section 5(3) of the 1995 Act. It is fair to say, however, that another jury might have been left in reasonable doubt as to where the truth lay, and might thus have acquitted the appellant on the sexual charges altogether. His own account, given forcefully in the witness box, was that while the two younger complainers had both visited his house, they had done so with AMcC in pursuance of drug-transporting activities which they now refused to admit. According to him, no sexual contact of any kind had taken place with either of these complainers, and their evidence in that regard was totally untrue".

 

If the ground of appeal is intended to incorporate this passage then it appears self destructive. As the trial judge observes (see also his Supplementary Report paras 5-7), the jury were entitled to, and did, reject the complainers' evidence that they had been raped. However, the jury were equally entitled to accept the evidence of the two complainers in charges (3) to (5) that the appellant did have sexual intercourse with them, as both complainers had testified. No basis is presented in the ground of appeal, nor was one advanced by the appellant in his submissions, as to why the jury's determination in this area ought to be classified as "unreasonable". Having read the transcripts of the evidence concerned, it appears that no such basis exists.

 

(d) OTHER GROUNDS

Having parted with his counsel, the appellant made a number of other succinct and at least readily intelligible submissions. The first of these related to the testimony of a police officer that, when the drugs had been found behind the appellant's fireplace, the appellant had said "Fair cop, mate. There's nothing else there" or words of a similar nature. According to the appellant's submission he had not said this and a study of the video tapes (both of which had been available as labels at the trial) would have demonstrated this. He complained that his solicitor-advocate had not played or replayed the tapes sufficiently to discredit the police officer's testimony. The appellant produced a letter from someone, whom he said was an expert. This expert had studied the tapes and, according to the appellant, had confirmed that the words were not said. However, the letter produced did not say that. Rather, it said that the words attributed to the appellant could not be made out upon listening to the tape.

The fundamental problem with the appellant's argument is that it is not a ground of appeal at all, far less one for which leave to appeal has been granted. In that regard it is readily understandable why counsel was not prepared to advance this ground and others (infra) at the appeal hearing. In any event, the matter was covered by the appellant in his evidence before the jury. The appellant's solicitor asked him whether he had made the remark attributed to him. He replied (transcript p 766):

"No. I never made that. He (the police officer) also said if you played the video long enough you would hear it. All I can say is play the video all day and you will never hear me saying that because it was never said".

 

The solicitor-advocate continued: "your lips were moving at that point in time. There was something going on between you. Can you say what you were saying?" The appellant responded by saying that he was asking the police how the drugs had got behind his fireplace and whether they had put them there. When it came to his address to the jury, the solicitor-advocate said that the jury should ignore the attributed remark because it was not heard on the video tape (transcript p 921). In these circumstances, the solicitor-advocate did all that was reasonable to deal with this evidence.

The appellant next raised an issue about his legal representatives having failed to pursue a specification of documents to recover the social work (or medical) records of LG. These, he submitted, would have proved her to have been a fantasist and that she had had a miscarriage before the offence. He also complained about the lack of effort put into the recovery of evidence that PMcC had had sexual relations with a care worker. In addition, he said that hospital records would have revealed that LG did not have cocaine in her system after the alleged offence, despite having said that the appellant had given her this drug. He protested that his legal team had failed to bring out the fact that a witness, LMcF, had admitted on tape during the search, that certain small amounts of cocaine found in the appellant's trousers were hers. The appellant complained that his legal team at the trial had told him that he could not defend himself (which was correct) but had later said that he could have done so if he had refrained from cross examining the complainers. The answer to all of these complaints is that they were all raised as grounds of appeal by the appellant (grounds (1), (3) (4), (5) (8) and (14)) but leave to present these grounds was refused by the sifting judges. In these circumstances, it is not competent to argue these grounds (1995 Act (supra) sub-section 107(8)). In any event, having considered these matters, none of the grounds appear to be of such substance as to indicate that his legal representatives had failed in such a manner that his defence was not presented at the trial, thus resulting in a miscarriage of justice (Grant v HM Advocate (supra)). Rather, his representatives appear to have acted in a professional manner and achieved a good deal of success before the jury, especially in relation to their undermining of the credibility and reliability of the lay witnesses, notably the complainers.

 

(e) SENTENCE

The core of the appellant's complaint on sentence was the making of the return order under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c 9). On 25 November 1998 the appellant had been sentenced to eight years imprisonment (back dated to 18 May 1998) for drugs offences (heroin supply). He was released on parole some time in 2002 and had, presumably, proceeded very soon afterwards to commit the offences of which he was later convicted. The appellant's point was that he had not asked for parole. He had simply been released from prison. Thus, he reasoned, it was wrong to subject him to a return order for committing an offence, when out on a licence which he had never applied for. However, section 16 is not confined to those prisoners who have welcomed the opportunity of parole. The trial judge was fully entitled, if not bound, to make the return order he did in the circumstances.

The appellant did not argue that the sentences for the offences were inappropriate or excessive. Rather, he accepted that, in light of his previous convictions, the sentences could be described as lenient. However, the appellant did mention that during the course of 2007, a social worker had told him that in his records he was referred to as being a paranoid schizophrenic. He said that this must be a mistake and that he had never been so diagnosed. He wondered whether this error had been in the Social Work Report presented to the sentencing judge. He was assured by the court that it had not been.

The appeal must be refused.