APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Wheatley Lord Philip	[2010] HCJAC 33 Appeal No: XJ1438/08 OPINION OF THE COURT delivered by LORD WHEATLEY in STATED CASE by BARRY HUGHES Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______

Appellant: McBride, QC; Barony Law Practice

Respondent: McSporran, AD; Crown Agent

13 April 2010

[1] The appellant was charged on a summary complaint at the instance of the respondent which reads:

"On 14 July 2007 at One Up Nightclub, Royal Exchange Square, Glasgow, being a public place, you BARRY HUGHES did have with you an article to which Section 49 of the aftermentioned Act applies, namely a knife

CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 49(1)."

[2] The trial took place on 15 July, 16 July and 13 August 2008. The respondent was represented by Mr E Targowski, QC. After hearing the evidence and submissions, the presiding sheriff found the appellant guilty as charged.

[3] The evidence for the Crown appears to have been straightforward. Two police officers on routine uniform foot patrol in Royal Exchange Square, Glasgow entered the premises of the One Up Nightclub after they learned of a disturbance there. They observed the appellant and another man, Ryan Forrester, going towards the rear of the premises, and wanted to speak to them because they thought the two men might have been involved in the disturbance. They saw the appellant and Mr Forrester enter the male toilets. The police officers followed them into the toilets and saw the appellant and Forrester in a cubicle. They asked them to come out, pushing the closed (but unlocked) door of the toilet open as they did so. Mr Forrester was closer to the officers and the appellant was behind him. Following the request to leave the cubicle, both officers saw the appellant drop a knife from his left hand onto the floor of the cubicle. The knife was a black-handled lock back knife, 20cms in length; the blade was 9cms and the handle was 11cms. When the knife was retrieved the blade was in the closed position. The knife was sharp, double-edged and pointed, and its locking mechanism was in working order.

[4] The appellant gave evidence on his own behalf and strenuously denied that he had ever been in possession of the knife. He lodged a Notice of Incrimination of Ryan Forrester. He maintained that he had gone into the toilet following an earlier disturbance in the adjoining Karaoke Bar (which appears to be part of the One Up Nightclub), and as he was about to shut the door he noticed Mr Forrester behind him. Mr Forrester put his hand into his inside pocket and pulled out a knife. The appellant said that he grabbed Mr Forrester by the wrist and the knife fell to the floor. He maintained that the police officers did not see him in possession of the knife. In addition, he said that the police officers could not have seen him with the knife because Mr Forrester, who is of a large build, was between him and the officers. Mr Forrester also gave evidence and confirmed the appellant's account, maintaining that he alone had been in possession of the knife. In the event, the presiding sheriff rejected the evidence of the appellant and Mr Forrester as incredible, and accepted the evidence of the police officers which he found to be straightforward and convincing. The appellant had no good reason or lawful authority for having the knife with him in a public place. The sheriff therefore convicted the appellant.

[5] In applying for this stated case the appellant tabled several grounds of appeal, three of which passed the sift. These three grounds were broadly concerned with defective representation by the appellant's counsel. The first of these grounds (2c) concerned counsel's failure to lead evidence from a duly cited defence witness, Andrew Hamilton, who in a statement available to the defence said that prior to the entry of the police officers, Ryan Forrester had been involved in an altercation with a third party in the Karaoke Bar within the premises, in the course of which he had seen Mr Forrester put something shiny, which could have been a knife, back into his pocket. At that time the appellant was some distance away. This evidence, it is said in the ground of appeal, was highly relevant as it would have supported the appellant's contention that it was the incriminee who dropped the knife on the toilet floor a short time later. The appellant, in an affidavit now lodged in the appeal, claims that in discussions with senior counsel and his solicitors before the trial, he was provided with statements from a number of defence witnesses including Andrew Hamilton, whom he did not know, and he had understood that these witnesses would be called to give evidence in his defence. He believed that Andrew Hamilton was a crucial witness. He further maintained that during the trial he asked when Andrew Hamilton was to be called and was told either by his counsel or his solicitor that this would happen later. In the affidavit, the appellant makes a number of other complaints about the presentation of his case at the trial, but these relate to the other two grounds of appeal. In his response to these claims in respect of the first ground of appeal, trial counsel has tendered a statement in which he explains his decision not to call Andrew Hamilton as a witness. He took the view that the witness's evidence would not help the defence. There had been evidence of CCTV footage of the original incident in the Karaoke Bar, spoken to by a senior forensic analyst. She did not accept that Ryan Forrester had something shiny in his hand or that he put it into his pocket. The footage showed Mr Forrester attacking the third party with an object visible in his hand, but that object was brown in colour. Moreover, Andrew Hamilton's account of what he saw of the earlier disturbance was not consistent with what was shown in the CCTV footage. In these circumstances counsel decided not to call Andrew Hamilton to give evidence as it "might diminish the credibility of the appellant and his incriminee." The other two grounds of appeal (2d and 2e) were concerned with whether the police officers could have seen past Mr Forrester in order to observe the appellant dropping the knife, but these were not argued in the appeal.

[6] In support of the only ground of appeal now before the court, counsel for the appellant submitted an argument which initially proved a little elusive, but which eventually in our understanding came to this. The appellant had in effect instructed counsel to lead the evidence of Andrew Hamilton. We took the view that whether this was an express or an implied instruction, or was something which the appellant anticipated following some form of discussion between himself and his legal advisers, was not clear at this stage, but for present purposes that did not matter. What is plain ex facie the terms of his affidavit is that the appellant expected the witness to be called to give evidence and believed him to be important for his defence. It had been agreed that he would be cited to attend court for this purpose. Counsel for the appellant argued that when counsel at the trial refrained from calling the witness to give evidence against what, at least, might be described as a presumed instruction by the appellant that this should be done, then the only issue which should concern the Appeal Court is whether the absence of that evidence could have had an effect on the verdict of the court at first instance. It was not necessary, said counsel, for him to show that the decision not to call Hamilton was one which no reasonably competent counsel would have taken. If it could be said that the evidence which would have been given by the witness might have persuaded the sheriff to a different view, then the Appeal Court had a duty to quash the conviction. Only if that evidence, if led, could be said to have had no effect on the outcome of the case could the appeal be refused. It will be seen from this submission that counsel for the appellant did not claim that the appellant's case had not been put before the court at first instance; the complaint was concerned with the way in which the defence was handled.

[7] In our view there are a number of things profoundly wrong with the submission, which was not assisted by any cited authority (indeed, counsel accepted that there was no authority supporting his argument). In effect it amounts to the proposition that if counsel acts contrary to the wishes of his client in not calling a witness that must, or may, in every case amount to a miscarriage of justice by reason of defective representation. If counsel is of a mind to decline to call a witness in these circumstances, it was submitted that he must first obtain his client's instructions to do so. This, it was said, was in accordance with the best modern practice.

[8] Our first difficulty with this proposition is that it appears to misunderstand the nature of instructions given to counsel for the proper presentation of a party's case. It necessarily implies that an accused person can direct his counsel as to what witnesses should be called to give evidence, and that counsel has no option but to comply with that direction. In this respect we can do no better than to repeat what was said in the Opinion of the Court, delivered by Lord Nimmo Smith, in Edwards v HM Advocate 2009 SCCR 871 at para [9]:-

The word 'instructions' has various shades of meaning, as can be seen from such works of reference as the Oxford English Dictionary (2^nd ed.) and other dictionaries. A convenient brief definition, which is appropriate in the present context, may be taken from Collins English Dictionary: 'Law: The facts and details relating to a case given by a client to his solicitor or by a solicitor to a barrister with instructions to conduct the case: To take instructions'. The same applies to a Scottish advocate as it does to an English barrister. A client, or his solicitor, does not give orders to an advocate whose services have been engaged for the conduct of a case. As it is put in the Guide to the Professional Conduct of Advocates (5^th ed.), issued by the Faculty of Advocates, at para.1.2.3:

'[A]lthough it is said that the client or his agent 'instructs an Advocate' or 'instructs Counsel', this does not mean that he can give orders. An Advocate is however obliged to follow instructions as to basic matters such as the line of defence in criminal cases.'"

In our view this means that counsel in terms of his duty to represent his client in a professional manner and to the best of his ability, and to protect his client's interest, cannot be under any duty to obey instructions from his client, whether express or implied, to call particular witnesses to give evidence, unless failing to do so would ignore, or have a material effect, on his responsibility to present the appellant's line of defence. This conclusion is clearly supported both by the relevant authorities and by the Faculty of Advocates' Guide to Professional Conduct. For the sake of completeness we again note that there is no suggestion here that the appellant's line of defence was not put before the court.

[9] The same point is more generally made in Burzala v HM Advocate 2008 SLT 61, a case with some similarities to the present one. At para. [33] Lord Macfadyen said in discussing the nature of an appeal on the ground of defective representation:

".... Such an appeal, like any other, can only succeed if there has been a miscarriage of justice (Criminal Procedure (Scotland) Act 1995, s 106(3)). That can only be said to have occurred if the conduct of the defence has deprived the appellant of his right to a fair trial (Anderson, p. 43 (p. 163: p. 131F); (Grant, (p.209; p. 565) para. 21). That, in turn, can only be said to have occurred if the appellant's defence was not presented to the court (Anderson, p43 (p163, p131G); Grant (p209; p565) para 21). That may be so if the appellant's counsel or solicitor acted contrary to instructions and did not lay before the court the defence which the appellant wished to put forward (Anderson, pp 43-44 (p. 163; p.132A)). It may also be so if the defence was conducted in a way which no competent counsel or solicitor could reasonably have conducted it (Grant, (p. 209; p.565) para. 21); and that has been illustrated by reference to counsel having made a decision that was 'so absurd as to fly in the face of reason' (McBrearty, (p. 130, p. 922) para. 36), or 'contrary to the promptings of reason and good sense' (McIntyre, p.240H (p. 379; p. 388)). It is clear, however, that the way in which the defence is conducted is a matter for the professional judgment of counsel or the solicitor representing the accused person (Anderson, p. 43 (p.163; p. 131D)). Criticism of strategic or tactical decisions as to how the defence should be presented will not be sufficient to support an appeal on the ground of defective representation if these decisions were reasonably and responsibly made by counsel or the solicitor in accordance with his or her professional judgment (Grant, (p. 209; p. 565) para. 22)".

Needless to say, an acknowledgement of these principles, which continue to represent the settled law in this matter, could not consistently be made in terms of the appellant's submissions in the present case. In our view, however, the basic premise on which the appellant's submission proceeds, namely that counsel has no right to decline to lead a defence witness whom he was instructed or expected to lead, cannot as such form the basis of a claim for defective representation.

[10] This was further illustrated by a concession which counsel for the appellant required to make, correctly in our view, in the context of the present case. The concession took the form of his acceptance that his submission that trial counsel could not decline to call a witness whom the appellant anticipated or had instructed would be called, would still hold good even where, as here, there were valid considerations which would justify trial counsel's decision not to call the witness. If this submission were sound, it would mean that counsel would have no option other than to obey instructions given by his client to call witnesses even where in his view such a course would be adverse to his client's interests. His only alternative in these circumstances would be to withdraw from acting. That would in turn, in our view, impose an intolerable restriction on the ability of counsel to provide effective representation of accused persons before the court and place substantial impediments in the way of counsel's duty properly to present the instructed defence. It would reduce the traditional and vital role of the advocate in our criminal courts to that of a mere cipher and significantly erode the value of the necessary skills, training and experience which require to be brought to the defence of any accused person.

[11] In all these circumstances, and in terms of the authorities which we have cited, we can find no grounds for suggesting that the appellant was deprived of a fair trial. His line of defence, namely the incrimination of Ryan Forrester, was clearly and fully laid before the court. Counsel accepted that in this case there were valid considerations for not calling the witness Andrew Hamilton, apart from the question of the appellant's instructions. The decision not to call the witness was therefore within the ambit of the presentation of the line of defence, that is to say counsel's "instruction", and subject to his professional judgment and assessment. The decision cannot be described as contrary to good sense or so absurd as to fly in the face of reason and counsel for the appellant did not seek so to describe it.

[12] In these circumstances we can see no grounds in the submissions made to us that there may have been defective representation in this case leading to a miscarriage of justice. We therefore answer the question in the Stated Case in the affirmative.