APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord MacLean	[2006] HCJAC 13 Appeal No: XC283/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by CLIFFROY JAMES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Bell QC, Hawkes; George Mathers & Co., Aberdeen

For the Crown: Miss Grahame, AD; Crown Agent

7 February 2006

The conviction

[1] On 9 August 2002 the appellant was convicted at the High Court at Stonehaven of inter alia the following charge, as amended:

"On 29 September 1999, at 625 Clifton Road, Aberdeen and elsewhere you, while acting along with others were concerned in the supplying of a controlled drug, namely Cocaine, a Class A drug specified in Part I of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

The background

[2] On 29 September 1999 officers of Grampian Police Drug Squad executed a search warrant at a flat at the locus libelled. They found the appellant, Devon Lloyd Harvey and Graham Duncan Ross in a bedroom. According to two police officers, the appellant was sitting on the edge of the bed. When they entered the room, he stood up and a knotted plastic bag fell from him to the floor. It contained 11 clingfilm packages containing 6.97 grammes of crack cocaine. On the dressing table in the room there were two packages of crack cocaine and a knife and a set of digital scales, both with traces of powder. On the floor there was a roll of clingfilm and on the television set a roll of plastic bags. No evidence was led at the trial about the remainder of the search; but the advocate depute has informed us that in the living room the police found a tick list on which were Ross's fingerprints and that Harvey was found to be in possession of £125, a recognised price for a 1/16^th oz cocaine deal.

[13] The appellant, Harvey and Ross were charged on indictment under section 4(3)(b) of the Misuse of Drugs Act 1971. Harvey and Ross incriminated each other, and both of them incriminated the appellant. The appellant twice failed to attend when the case called for trial. A warrant was granted for his arrest. In the event, at a diet in October 2001, for reasons that the advocate depute was not in a position to explain, the Crown accepted pleas of not guilty to the section 4(3)(b) charge from Harvey and from Ross. During these proceedings Ross was represented by Caird Vaughan, solicitors, Dundee. According to their file on the case, Mr Ian Vaughan, the senior partner, was personally involved in the preparation of Ross's defence.

[4] In April 2002 the appellant was arrested under the warrant and taken to Craiginches Prison, Aberdeen. He was thereafter indicted on his own on six charges, the first of which was the section 4(3)(b) charge relating to the incident on 29 September 1999. The appellant became dissatisfied with the first solicitor who represented him. He then consulted Mr Shepherd of Aberdein Considine, Aberdeen. Mr Shepherd declined to act for him because he had acted for Harvey in the same matter. Mr Ian Vaughan thereafter acted for the appellant.

[5] On 25 June 2002 Mr Vaughan consulted with the appellant at Craiginches regarding the transfer of the agency. According to the appellant, Mr Vaughan explained to him that he had acted for Ross, but that he would seek the authority of the Law Society to act for the appellant. The appellant understood that Mr Vaughan was given that authority; but Caird Vaughan's files do not show that any application was made for it. The point is not crucial and we need not attempt to resolve it.

[6] On 2 July 2002 Mr Vaughan consulted with the appellant. The prison visit sheet merely records "advising re indictment." There is no reference to the question of conflict of interest.

[7] On 8 July 2002 Mr Vaughan wrote to the appellant saying that he would take instructions from counsel as to whether or not it was appropriate that he should remain in the case. On the same day, Mr Vaughan instructed Mr Graeme Robertson, advocate. His letter of instruction raised the question of conflict of interest in the following way.

"You will see that he appears on his own on the indictment, however, we did appear at one stage for a co-accused who faced the same charges. These charges however were not proceeded with and Cliffroy does want us to proceed on our (sic) behalf. I do not see any particular difficulty with this, however, it may be better that I have a chat with you about it. Also a consultation should be arranged as quickly as possible."

This letter does not name Ross as the co-accused to whom Mr Vaughan is referring, or disclose that Ross incriminated the appellant; nor does it say what information Ross gave to Caird Vaughan about the appellant in relation to the section 4(3)(b) charge.

[8] Mr Robertson did not write an opinion or hold a consultation on the question. As we now know, he was satisfied straightaway that Mr Vaughan could continue to act for the appellant and we infer that he expressed that view to Mr Vaughan at the time.

[9] On 11 July 2002 Miss Gail Russell, a solicitor employed by Caird Vaughan, visited the appellant. The purpose of the visit, according to the prison visit sheet, was "To advise re possible conflict & advise of G Robertsons point of view." Under the heading "what done at visit" the sheet records "Going over transcript of client & transcript of co-accused. Client discussing incriminating Devlin (sic) & also advising Graeme Robertson is advocate." The meaning of the reference to the transcript of the co-accused is not clear.

[10] On 20 July 2002, Miss Russell visited the appellant with counsel. Under the heading "what done at visit" the prison visit sheet records "Initial Consultation. Taking full instructions."

[11] On 24 July 2002 Miss Russell visited the appellant with counsel. Under the heading "what done at visit" the prison visit sheet records "Going over statement & Adv advising him re Incriminating Devron (sic) Jessup & McGuire. Client agreeing to Incriminate them." In the "Notes" section the sheet records "GR to Incriminate the above." The names Jessup and McGuire relate to other charges. It seems clear that neither Mr Vaughan nor Miss Russell prepared a precognition of the appellant. There is no such precognition in the file and none is charged for in the legal aid account.

[12] In a letter to Mr Robertson dated 25 July 2002 Miss Russell said the following

"I am about to do the notice of Incrimination. Please could you confirm whether you also (sic) Devon Lloyd Harvey to be incriminated?"

Those mentioned in the draft Notice were Harvey and two persons involved in an unrelated charge. Notwithstanding the prison visit sheet for 24 July and this letter, no special defence was lodged before the trial.

[13] Neither Mr Vaughan nor Miss Russell sought Mr Robertson's advice as to whether Ross should be incriminated and there is no evidence that Mr Robertson raised that possibility. There is nothing in the file to suggest that the possibility was ever discussed with the appellant.

[14] The appellant's trial began on 8 August 2002. At the outset, Mr Robertson was allowed to lodge a special defence of incrimination against Harvey. He cross-examined the police officers who carried out the search on the basis that the package found on the bedroom floor had not fallen from the appellant. The appellant was the only defence witness. He said that he had come from Wolverhampton to Aberdeen to go clubbing. Harvey had let him sleep on a settee at the flat. He did not know that there were drugs in the flat. He knew nothing about the drugs that were recovered by the police. No package had fallen from his clothing. Harvey and Ross were in the bedroom when he entered it. It was then that he first saw the drugs on the dressing table. That was only moments before the police arrived.

[15] Mr Robertson addressed the jury on the basis that it was not proved beyond reasonable doubt that the appellant had anything to do with the drugs or other items found in the bedroom, and in particular that there was no scientific or fingerprint evidence to link the appellant to them. He did not mention either Harvey or Ross. He did not mention the special defence; but he did not withdraw it.

The grounds of appeal

[16] The appellant lodged an Anderson appeal in which he accused Mr Robertson and Mr Vaughan of various deficiencies in their conduct of the defence. He later added six further grounds, all of them based on the contention that Mr Vaughan, in breach of his professional duty, acted for the appellant despite a conflict of interest.

The response of counsel and solicitor

[17] In his comments to the court on the conflict of interest point, Mr Vaughan failed to deal with the allegation that he said that he would seek authority from the Law Society to act for the appellant. In a letter dated 24 September 2004 he said that the question of conflict of interest was taken up with counsel in writing; but he did not deal with the point that his letter of instruction to counsel did not disclose the full circumstances. In a letter dated 22 April 2005, Mr Robertson said inter alia

"When I was instructed to act for Mr James by Messrs Caird Vaughan, Solicitors I had no prior knowledge of or involvement in this or any other case in which Mr James or Graham Ross had been involved. I was informed by the partners of Caird Vaughan that they had previously acted for Graham Ross. They felt that this did not compromise them representing Mr James. I was informed that the case against Graham Ross had been dealt with. I do not recall being told that Mr Ross had incriminated Mr James in earlier proceedings. I was further informed that Mr James had no objection to Caird Vaughan representing him. In those circumstances I did not feel that there was any real issue in Caird Vaughan representing Mr James. I did not feel inhibited or compromised in my representing Mr James."

[18] In their comments on the Anderson ground, Mr Robertson and Mr Vaughan both made the point that the appellant did not instruct them at any stage to blame Ross.

Submissions for the appellant

[19] Counsel for the appellant submitted that Mr Vaughan had a conflict of interest. Ross had incriminated the appellant. Caird Vaughan owed a continuing professional duty to respect Ross' confidence. As a partner in Caird Vaughan, Mr Vaughan was not free to disclose to the appellant confidential instructions that had been given by Ross. He could not properly advise the appellant as to whether Ross should be incriminated. To do so would be a breach of his professional duty to Ross. He was therefore in breach of the Law Society's Code of Conduct for Criminal Work for Solicitors (sv "conflict of interest").

[20] On the Anderson ground, counsel submitted that the appellant was only a chance overnight visitor to the flat. Since he claimed that he did not know that there was cocaine in the flat, an issue arose as to the guilt of Harvey and Ross. Mr Vaughan advised the appellant to incriminate Harvey, but did not advise him to incriminate Ross. In consequence, the question of Ross' possession of the cocaine could not be pursued at the trial. Counsel too failed to follow up this line of defence. It was crucial to the case. The appellant was therefore deprived of a fair trial (Winter v HM Adv 2002 SCCR 720; McBrearty v HM Adv 2004 SCCR 337).

[21] There was also a breach of article 6.3 of the Convention which guaranteed the minimum right of legal assistance of the appellant's own choosing and the right to examine witnesses against him. Since Mr Vaughan, despite his and counsel's view, could not give full and impartial advice to the appellant, the appellant's rights under article 6 were denied.

Submissions for the Crown

[22] The advocate depute did not take issue with the main submissions for the appellant on the conflict of interest point; but she submitted that the appellant was properly defended and that in the circumstances there was no miscarriage of justice. The appellant gave evidence. His position was clearly placed before the jury. He blamed Harvey and he did not blame Ross. In cross-examination he accepted that Harvey could have been concerned in supplying cocaine. There was evidence against Harvey, including the money in his possession and the fact that he was living at the locus. The trial judge specifically directed the jury on the special defence. There was a strong case against the appellant. The package fell to the floor when he stood up. To have blamed Ross would not have altered that issue. On the appellant's own evidence there was nothing against Ross other than his mere presence in the bedroom. Although the tick list was recovered in the living room, it was open to the jury, even without a special defence of incrimination against Ross, to take note of Ross' presence in the bedroom if they thought that it was helpful to the defence case.

Conclusions

Conflict of interest

[23] We cannot understand how Mr Vaughan could have been in any doubt that there was a conflict of interest in this case. His firm had acted for Ross in his defence to the same charge and, on Ross' instructions, had incriminated the appellant. He himself had taken part in the preparation of Ross' defence. The circumstances were too obvious to require counsel's advice on the point. But when he referred the matter to counsel, Mr Vaughan should have disclosed that the co-accused to whom he was referring was Ross and should have specified the work that he and his firm had done on Ross' behalf. His letter of 8 July 2002 left all of that unsaid. It could have been read to mean that the charge against Ross had been dropped at an early stage.

[24] Despite being unaware of this additional information, counsel nevertheless knew that Mr Vaughan's firm had represented a co-accused on the same charge and he should at once have recognised the possibility of a conflict of interest. We cannot understand how Mr Robertson, without further knowledge of the history, could advise Mr Vaughan that it would be proper for him to act.

[25] In our view, Mr Robertsons's letter dated 22 April 2004 (supra) gives an inadequate justification of his decision. Since he knew that Ross had been indicted on the same charge, there was a clear prima facie conflict of interest on the part of Caird Vaughan. That, we think, was reason enough to advise Mr Vaughan that he could not act. But if that was not obvious to him, it should certainly have occurred to him that, before advising on the point, he should find out what steps Caird Vaughan, and Mr Vaughan in particular, had taken in Ross' case, and what he had told them about the facts of the case. Mr Robertson has failed to give us satisfactory reasons for the view that he took.

[26] In our opinion, when the appellant's defence was conducted in such circumstances, he did not receive a fair trial.

The Anderson ground

[27] Apart from the propriety of Mr Vaughan's acting, there is a separate question as to the competence with which the defence was conducted. If there was an obvious and relevant line of defence, it was Mr Robertson's and Mr Vaughan's duty to advise the appellant to take it. The appellant's case was that he was a chance overnight guest at the flat who knew nothing of the presence of cocaine there. Harvey and Ross were already in the bedroom when he entered it. The cocaine and the drugs paraphernalia were on open view in the room. If the appellant had nothing to do with the cocaine, the likely inference was that Harvey and Ross, or one of them, was connected with it. Counsel and agent would therefore have been justified in lodging a special defence to that effect. Even if involvement with the cocaine could not be proved against either Harvey or Ross, that defence could succeed if it raised a reasonable doubt in the minds of the jury. Prima facie, the case against Ross was as strong as the case against Harvey. In our opinion, it was stronger against Ross because of his fingerprints on the tick list.

[28] In these circumstances, we cannot understand why neither Mr Vaughan nor Mr Robertson even raised with the appellant the question of incriminating Ross. In their comments on this ground, Mr Robertson and Mr Vaughan have tendered the feeble excuse that the appellant did not instruct them to incriminate Ross. That is neither here nor there. It was their duty to advise the appellant that, on his own account of the facts, this obvious line of defence was open to him.

[29] Since Caird Vaughan had acted for Ross and since Ross had incriminated the appellant, the failure of Mr Robertson and Mr Vaughan to pursue this matter is, in our view, a cause for concern (cf R v Morris, (2005] EWCA Crim 1246). It would certainly convey to the informed observer the clear impression that the appellant had not received a fair trial.

[30] We conclude therefore that the appellant was not properly represented by Mr Robertson or by Mr Vaughan. Their deficiencies related to matters that would been obvious to any counsel or solicitor of average competence (A J E v HM Adv, 2002 JC 215; Winter v HM Adv, supra; McBrearty v HM Adv, supra). Since the failure in representation went to a significant point in the appellant's defence, the appellant did not receive a fair trial. There has been a miscarriage of justice.

[31] Counsel for the appellant has touched on other questions relating to the appellant's representation; for example, why Mr Vaughan and Mr Robertson embarked on this serious trial without a formal precognition from their client; why, when a decision to incriminate Harvey was taken on 24 July, the special defence was not lodged until the first morning of the trial; and whether the explanation given to the trial judge for the absence of the addresses on the defence list of witnesses was entirely candid. On the view that we have taken, these are side issues that need not be explored in the context of this appeal.

Decision

[32] We shall allow the appeal.