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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 51
P914/20
OPINION OF LORD ARTHURSON
In the petition
PAUL VINCENT KELLY
Petitioner
against
SCOTTISH CRIMINAL CASES REVIEW COMMISSION
Respondents
Petitioner: Bain QC; Paterson Bell
Respondents: Pirie, Advocate, Scottish Criminal Cases Review Commission
18 May 2021
Introduction
[1]
On 13 July 2016, following a 13 week trial on indictment at Glasgow High Court, the
petitioner was convicted of six charges related to the sexual abuse of three children during
periods libelled between 5 May 1981 and 31 July 1983 at St Ninian's School, Falkland, Fife.
He was in addition convicted of a single charge of assault against one of the three children.
In due course the petitioner was sentenced, on an in cumulo basis, to a period of 10 years
imprisonment. He remains a serving prisoner. The petitioner subsequently sought to
appeal against his conviction on a variety of meritsbased grounds. Leave to appeal was
refused in respect of all grounds of appeal at both first and second sift stages.
2
[2]
The petitioner thereafter applied to the responden ts seeking a review of his
conviction. The sole ground of review advanced was that of defective representation. In a
Statement of Reasons issued on 28 February 2020 ("SoR") the respondents set out the basis
upon which they declined to make a reference upon this ground of review. The respondents
were of the view that the petitioner had not suffered a miscarriage of justice. On behalf of
the petitioner a request was made that the respondents' decision be reviewed. In a brief
Supplementary Statement of Reasons dated 31 July 2020 ("SSoR"), the respondents stated
that their view had not altered and that none of the matters raised by the petitioner had met
the test for defective representation.
[3]
The petitioner has raised a petition seeking reduction of the respon dents' decisions
and for an order in terms of section 45(b) of the Court of Session Act 1988 ordaining the
respondents to reconsider his case.
Submissions for the petitioner
[4]
Senior counsel for the petitioner, adopting a detailed note of argument, submitted
that the petitioner was not consulted by his trial senior counsel and defence agent in relation
to defence witnesses who would or would not be called on his behalf at the trial. The
petitioner had provided an extensive list of potential defence witnesses. He had paid his
agents £10,000 specifically for defence witness costs such as travel and accommodation
expenses. In not being consulted about the calling of the defence witnesses, whom he had
wished to call, senior counsel submitted that those representing him at his trial did not
properly put forward his defence to the jury. The principal witnesses who were not called
were SJ and RD. By letter dated 22 October 2020, post-dating the respondents' decisions,
agents for the petitioner advised the respondents that the potential for SJ being a witness
3
had first been raised with the petitioner's trial agents in January 2016; accordingly, the
narrative provided at paragraph 30 of the SoR to the effect that SJ had not been named by
the petitioner during trial preparation as a potential witness was factually incorrect.
Further, in a hand written list of defence witnesses prepared by the petitioner's trial agent,
the final name on the list, given by surname only, referred to SJ. Senior counsel submitted
that the evidence of SJ, had it been led, would have assisted the defence materially in respect
that it would have bolstered support for the evidence of GMcQ, a defence witness who was
led at trial. SJ would have provided an explanation concerning the circumstances in which
boys visited the petitioner's room and slept overnight therein. SJ would have confirmed
that no sexual or physical abuse took place in the room while he was present. RD had been
identified by the petitioner as a witness in an email to his trial agents at the end of June 2015.
His evidence contradicted the evidence of one of the children who was a complainer in
charges in respect of which the jury had returned convictions; had RD given evidence senior
counsel at the trial would have been able to point the jury to an independent source directly
contradicting the evidence of that complainer. RD would also have provided support for the
evidence of GMcQ. The petitioner's trial agents had failed to cite and call RD against a
background of what they claimed to be tracing difficulties. As a matter of fact, however,
while the trial was ongoing the petitioner had himself obtained a home address for RD
through a local authority. With minimal effort therefore the witness RD could have been
located, precognosced, and cited as an additional defence witness.
[5]
Senior counsel listed six further witnesses whom the petitioner had advised that he
had wished called to give evidence on his behalf, namely GM, MB, MH, CB, EE and BB.
These potential witnesses were pupils and teachers at the school who would have given
evidence to the general effect that they had not seen or heard of any abuse of any kind at any
4
time on the part of the petitioner. Senior counsel submitted that these witnesses would have
been highly significant in a case in which the Crown proceeded upon the doctrine of mutual
corroboration. Referring to PGT v HMA [2020] HCJAC 14 at paragraphs 19 to 23, senior
counsel submitted that the evidence of witnesses undermining the Crown case in such a
way would have been available for the jury's consideration at large rather than in isolation.
The respondents had failed to consider the cumulative impact of the absence of such
available and relevant evidence.
[6]
Senior counsel thereafter turned to consider the application for review presented to
the respondents on behalf of the petitioner. The gravamen of the application was that there
had been a miscarriage of justice in terms of defective representation, the petitioner having
been thereby deprived of his right to a fair trial because his defence had not been presented
to the court. His trial counsel and agents had acted in a way that was contrary to the
petitioner's instructions and did not lay before the court the defence which the petitioner
wished to be put forward. There had been a failure to trace, cite, precognosce, and lead
witnesses to promote his defence. The petitioner had not been consulted or advised about
decisions made in respect of, inter alia, the calling of witnesses at his trial. The cumulative
effect of these failures on the part of his trial counsel and agent had resulted in important
exculpatory testimony not being led and his defence not being properly presented to the
jury. His instructions to those representing him at the trial had been disregarded. These
failures had resulted in a miscarriage of justice. Prior to the trial the petitioner had
anticipated a full and robust defence case, which had simply not materialised.
[7]
Senior counsel submitted that the respondents had used the label "counsel's
discretion" to cover all aspects of the criticisms made of the petitioner's trial counsel and
agent. Senior counsel submitted that although convenient, this label would prove to be the
5
undoing of the respondents and their rationale in this case. In the SoR at paragraphs 29
and 33 the respondents had concluded that the decision of counsel not to take steps to secure
RD and SJ as witnesses for the defence was a reasonable exercise of counsel's discretion. In
respect of the decision of trial counsel not to seek to present the evidence of RD to the jury, it
was submitted that the respondents' consideration of the explanation provided by trial
counsel was superficial and inadequate. Further, insofar as trial counsel had stated to the
respondents that the decision not to call SJ had been discussed with the petitioner, senior
counsel noted that there had been no mention by the trial agent of discussing SJ with the
petitioner or of any meeting between trial counsel and the petitioner to discuss this matter.
It was additionally submitted, with regard to the potentially available evidence of MH, CB,
EE, GM and MB, that the respondents' consideration of the explanation provided by those
advising the petitioner at trial relative to these witnesses was superficial and inadequate in
the absence of a specific exploration of why it was that the petitioner's express instructions
had not been followed.
[8]
In the petitioner's reconsideration request following receipt of the SoR, particular
focus had been placed upon the lack of consultation with the petitioner about the calling or
otherwise of SJ and RD. Senior counsel submitted that the SSoR made clear that the
respondents had not revisited the petitioner's position on this issue, nor had they explained
why they had accepted trial counsel's position over the petitioner's, other than advising that
they were relying on statements made by trial counsel and a review of the defence file. The
respondents had not considered the question of defective representation from the stand-
point of the cumulative effect of failing to call RD and SJ, whose combined evidence would
have challenged critical aspects of the crown case advanced at trial.
6
[9]
Senior counsel proceeded to address certain matters arising subsequent to the
challenged decisions of the respondents. Following retrieval of the defence file from the
respondents those acting for the petitioner had ascertained that there were no notes of any
meetings between the petitioner and his trial counsel and agent discussing RD or SJ. Senior
counsel further referred to an affidavit dated 8 April 2021 from the solicitor advocate dealing
with the application to the respondents; to an opinion dated 15 March 2021 prepared by a
highly experienced criminal defence senior counsel; and to extracts from the speech made to
the jury by senior counsel at the trial on 11 July 2016 setting out the material advanced by
her to undermine the Crown case in respect of two of the complainers. It was submitted that
what was not available to counsel conducting the trial and addressing the jury was the
evidence of a series of witnesses, a compelling body of evidence, undermining the Crown
case which could and should have been deployed on behalf of the petitioner at the trial.
[10]
In inviting the court to pronounce decree of reduction of the challenged decisions,
senior counsel submitted that the respondents had, in declining to make a reference,
improperly exercised the discretion conferred upon them in that their decisions (a) were
based upon a material error of law in relation to the test for defective representation; (b)
resulted from a failure to take into account relevant and material considerations; (c) had no
proper factual basis available to them upon which they made their decisions; and (d) their
decisions were unreasonable and ones that no reasonable decision maker could have
reached: Sheridan v SCCRC 2019 SLT 586 at paragraph 72.
[11]
In so far as the respondents had accepted that the decision whether or not to take
steps to secure the attendance of RD and SJ, or to call additional witnesses, were matters
falling within counsel's discretion, senior counsel submitted that the exercise of discretion
and independent judgement involved (i) the comparison and evaluation of possible courses
7
of conduct and (ii) the acting or making of a decision after the various possibilities had been
considered. In this case there could have been no proper exercise of counsel's discretion in
relation to the steps taken to secure the attendance of RD, as nothing had in fact been done
to that end until after the conclusion of the trial. In respect of SJ, there was no question of
the exercise of counsel's discretion to take steps to secure his attendance, SJ having as a
matter of fact attended at the trial. The respondents had therefore reached the conclusion
that the decisions made in respect of RD and SJ were ones within counsel's discretion in
circumstances where they had no proper factual basis to do so. The decisions made in
relation to SJ, RD and the other witnesses were not purely tactical or matters of professional
judgement, it was submitted, particularly where there was an instruction and an expectation
on the part of the petitioner that these witnesses would be called. The respondents had
failed to appreciate this point concerning the disregard of the petitioner's instructions. The
respondents had not applied the correct test in relation to defective representation in a case
of this nature as set out in Burzala v HMA 2008 SLT 61 at paragraph 33.
[12]
Senior counsel further submitted that the respondents' decisions were in any event
unreasonable and indeed ones that no reasonable decision maker could have reached. The
respondents had failed to have regard to the following matters, namely that the petitioner
was not given the opportunity to discuss the issue of witnesses or indeed any form of tactics
with his trial counsel and agent; that those representing him at the trial had acted contrary
to his instructions and had not laid before the court the defence which he had wished to
advance and had invested in financially; and that the respondents had failed to have regard
to the combined effect of the absence of the evidence of RD, SJ and the other witnesses
referred to. Reference was made to an affidavit of the petitioner himself dated 2 April 2021
for the proposition that it was clear that his instructions had not been followed at the trial.
8
[13]
While senior counsel referred principally to the passage in Burzala, cited supra, for
the proposition that the respondents had erred in law by failing to apply the cor rect test, the
following additional citations were also made: Grimason v HMA [2020] HCJAC 53
at paragraph 25 and DS v HMA 2008 SCCR 929 at paragraphs 42 to 44.
Submissions for the respondents
[14]
Counsel for the respondents submitted that each decision under review in the
present case amounted to a lawful response to the material then before the respondents. The
approach of the petitioner was in effect to ask the court to become an original decision
maker rather than a reviewing one. The determinations of the respondents, as the specialist
tribunal, could only be susceptible to review by the court on conventional grounds:
Sheridan, supra, paragraph 72. None of the grounds advanced had been made out. The
respondents had directed themselves correctly on the applicable law, and, having done so,
had applied that law to the material and submissions before them, all in a way that had
properly been open to them.
[15]
The statutory scheme under the Criminal Procedure (Scotland) Act 1995 gave
discretion to the respondents to refer a case to the High Court on the grounds "that they
believe (a) that a miscarriage of justice may have occurred; and (b) that it is in the in terests
of justice that a reference should be made": section 194C(1) of the 1995 Act. The phrase
"they believe" was, counsel submitted, a classic conferral of judgment by Parliament on a
specialist decision maker, operating with a very broad discretion.
[16]
The law which the court required to apply in reviewing the decisions of the
respondents was well-settled: Sheridan, supra, at paragraphs 77, 79 and 80. From these
passages counsel drew out the following propositions: it is primarily for an applicant to
9
recover evidence to advance a case put forward to the respondents; the respondents are
entitled to focus on what that applicant is saying to it as the outline basis of a prospective
appeal; any failure to recover evidence which an applicant has not asked for is not an error
of law; and the respondents are entitled to reach a view on materiality and take that into
account when dealing with requests made by an applicant.
[17]
The law which the respondents required to apply in making the decisions under
review was located in the dicta of the court in defective representation appeals in the
following cases: Hughes v Dyer 2010 JC 203 paragraphs 7, 8, 9 and 11, Anderson v HMA 1996
JC 29 at 43 and 44, Woodside v HMA 2009 SCCR 350 paragraph 45 to 51 and 53, and DS, supra,
paragraph 44. Counsel sought to advance from these dicta the following propositions: (i) a
defective representation appeal is not to be regarded as a performance appraisal in which
the court decides whether this line of evidence or that should have been pursued: Woodside,
paragraph 45; (ii) whether there has been defective representation is a narrow question of
precise and limited scope: Woodside, paragraph 45; (iii) there are two ways in which the test
in Anderson at 43 (defence not presented to the court) can be passed, namely (a) where the
representative acted contrary to instructions and did not lay the defence before the court, or
(b) where the defence was laid before the court, but the defence was conducted in a way that
no competent defence counsel could reasonably have conducted it: Hughes, paragraph 9,
citing Burzala, supra, paragraph 33; (iv) in respect of (iii)(a), "instructions" refers to
instructions on the line of defence: Hughes paragraphs 8 and 11, Anderson, 44 and Woodside,
paragraph 47; a refusal by a representative to lead defence evidence which an appellant had
ordered that representative to lead is insufficient; rather, a failure to present a line of defence
is required: Hughes, paragraphs 7 to 9 and 11; and a "line of defence" is the reason for an
acquittal rather than the evidence in respect of that reason: Hughes, paragraph 11, Woodside
10
paragraph 47 and DS paragraph 44; (v) in respect of (iii)(b), this refers to decisions by
counsel that are contrary to reason, and the court in this exercise recognises a variety of
matters, namely that the examination of some witnesses carries the risk that they give
harmful evidence; that criminal advocacy calls for tactical and strategic decisions; that these
decisions may have to be made in difficult circumstances; that the trial representative may
be better placed than an appellant in respect of how the line of defence is to be most
effectively presented; and that experienced practitioners may reasonably disagree about
what evidence may reasonably be led: Hughes paragraphs 9 and 11 and Woodside
paragraphs 46, 48- 51 and 53; and, (vi) if the above requirements are not satisfied, there is no
authority to the effect that a failure to discuss tactics with an appellant amounts to defective
representation.
[18]
Counsel observed that the principles expressed in Burzala, paragraph 33, were
quoted in Hughes, paragraph 9 and paraphrased in Woodside, paragraph 45. The
respondents in setting out their SoR had cited Hughes and in their SSoR had cited Woodside.
[19]
Counsel proceeded at this stage to develop a further short chapter of his submission,
contending that reasonableness can only be assessed on the basis of the material that the
decision maker had available to it at the time that it made its decision. Logic and the nature
of the supervisory jurisdiction to which such petitions are individual applications required
this to be so: Tsiklauri v Secretary of State for the Home Department [2020] CSIH 31 at
paragraph 13. Rule of law values also required this: Fardous v Secretary for the Home
trespassing on the jurisdiction of a tribunal competent to determine the matter in issue:
MIAB v Secretary of State for the Home Department 2016 SC 871 at paragraph 73. As a matter of
law, however, no limit having been placed in the statutory structure set out in the 1995 Act
11
on the number of applications that an applicant can make to the respondents, the post-
decision material relied on by senior counsel for the petitioner could of course be put of new
before the respondents in a fresh application. Accordingly, an alternative remedy exists,
counsel submitted.
[20]
Turning to the challenged decisions themselves, in respect of the SoR, from
paragraph 44 it was clear that the correct overall test had been identified and applied by the
respondents, namely the putting in evidence of the petitioner's defence. The self-directions
in terms of Hughes expressed at paragraphs 22 and 42 were correct in respect of the
applicable law, and in applying the law the respondents had taken into account the material
referred to in the petitioner's application: paragraphs 14 and 16. The respondents had made
their own enquiries, speaking to the petitioner's trial solicitor and senior counsel, and had
reached a view on the witnesses SJ, RD and the other witnesses at paragraphs 24 to 41.
From paragraph 43 it was plain that there was no suggestion that the petitioner's defence
had not been put; indeed, at paragraph 44 the respondents had gone so far as to state that
"the applicant's defence was fully prepared and put in evidence". The respondents had at
paragraph 43 further concluded that the decision not to call the witnesses was a reasonable
exercise of trial counsel's professional and practical judgement in presenting the instructed
defence.
[21]
In submitting that the conclusions reached by the respondents were within a
reasonable range of responses to the facts before them, counsel observed, under reference to
the terms of the SoR, that the trial had been a long and complicated one (paragraphs 2
and 3); the petitioner had given evidence denying the charges (paragraph 6); the petitioner's
co-accused and acquitted former co-accused had given evidence in his defence
(paragraph 7); there was an overlap between the potential evidence of SJ and RD and the
12
actual evidence given at the trial by GMcQ and AC (paragraphs 6, 16 and 24); and some
Crown witnesses had given evidence of the petitioner's good character (paragraph 41).
Counsel further referred to the police statement of RD denying any allegation of having
taken part in abuse instigated by the petitioner but recalling that the petitioner and teachers
at the school would take pupils into their rooms to sleep at night and commenting "I just
thought these were guys who didn't have a mum or dad but it's only now when you think
about it you realise something was wrong, but this just seemed normal at the time." Counsel
also noted the potential risk in bringing RD to give evidence (paragraph 28) and in
calling SJ, bearing in mind the similarity of SJ's evidence with that of GMcQ (paragraph 32).
Counsel further noted the availability to the respondents of the comments of the tr ial judge
in respect of what SJ and RD could have added. The trial judge had referred to the position
of RD as somewhat mixed and stated that it might well have been dangerous to call him as a
witness in any event. The trial judge had further expressed a view that the evidence of SJ
would not have advanced matters particularly.
[22]
With regard to the SSoR, counsel submitted that the decision expressed at
paragraph 5 therein was one which was open to the respondents having taken into account
the further submissions referred to at paragraph 2. This supplementary decision, in terms of
which the respondents adhered to their earlier decision, was accordingly a lawful one.
Discussion and decision
[23]
The kernel of the petitioner's application to this court for review of the challenged
decisions of the respondents, his senior counsel made clear, was located in the dictum of the
Court in Burzala, supra, at paragraph 33. In that passage, shorn of reference to the authorities
13
cited therein, the Court stated the position thus, in the context of an explanation as to why
the scope for an appeal on the ground of defective representation is limited in nature:
"The limitations are clearly established. Such an appeal, like any other, can only
succeed if there has been a miscarriage of justice. 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. That, in turn, can only be said to have occurred if the appellant's defence was
not presented to the court. 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. It may also be so if the defence was conducted in a
way in which no competent counsel or solicitor could reasonably have conducted it;
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', or `contrary to the promptings of reason
and good sense'."
[24]
It is of note that in the same passage the Court in Burzala went on to make clear that
the way in which the defence is conducted is a matter for the professional judgement of
counsel and that criticism of strategic or tactical decisions as to how that defence should be
presented will not be sufficient to support a defective representation appeal if these
decisions were reasonably and responsibly made by counsel in accordance with his or her
professional judgement. The
passage relied on by senior counsel for the petitioner in the
present case must accordingly be considered against the background of the Court's clear and
practical exposition of the limitations on the scope for a defective representation appeal. It
was contended for the petitioner that his representatives had in this case acted contrary to
instructions and had not laid before the court the defence which he had wished to put
forward. Senior counsel for the petitioner argued that the use of the label "counsel's
discretion" by the respondents was, in terms, simply not good enough, submitting that the
exercise of discretion and independent judgement involves the comparison and evaluation
of possible courses of conduct, and the active making of a decision only after such
possibilities have been duly considered. Senior counsel submitted that in the present case
such a comparative course could simply not have been embarked upon, the effective
14
absence from the evidence of the witnesses RD and SJ in particular being due to failure on
the part of those representing the petitioner at the trial.
[25]
I have concluded that this approach to the issues raised in the petitioner's case is
misconceived. In Hughes, supra, the Court at paragraph 8, in considering the correct
understanding of the nature of instructions given to counsel for the proper presentation of a
party's case, stated the applicable law to be as follows:
"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."
[26]
The Court in Hughes of course proceeded in the next paragraph to cite the dicta set
out in Burzala at paragraph 33, noting as it did so that the same point had been made in
Burzala, albeit more generally. Senior counsel's submission in the present case, however,
amounted to a contention that if those representing an accused at trial had received funding
to secure the attendance of witnesses and that the accused had indicated an express wish
that witnesses X and/or Y be led as part of the defence case, then counsel at the trial had in
effect no right to decline to lead such a witness whom she or he was expressly instructed or
expected to lead. This is the very elephant trap identified by the court in Hughes, in which
the Court made crystal clear that such a premise or contention cannot as such form the basis
of a claim for defective representation: Hughes, paragraph 9.
[27]
The correct question that requires to be considered in a case such as this is whether
the line of defence was fully laid before the court, the decision not to call a witness being
within the ambit of the presentation of the line of defence, referred to in Hughes at
15
paragraph 11 as "counsel's `instruction'", and as such subject to his or her professional
judgement and assessment. The Court in Woodside at paragraph 47 put matters thus: "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".
[28]
I am satisfied that on the material before them the respondents were entitled to
conclude that the line of defence was indeed placed before the jury in the course of the
petitioner's trial in 2016. The question as to whether the line of defence was presented to the
jury is intrinsically connected to the fundamental issue at large before the respondents
within their purview as the specialist tribunal upon which Parliament has conferred a
particular review role within the statutory scheme set out in terms of the 1995 Act, namely
whether there may have been a miscarriage of justice. Put short, I have concluded that none
of the conventional grounds of illegality referred to in Sheridan, at paragraph 72, as
articulated in the submissions advanced for the petitioner, have been made out. The
respondents have reached clear conclusions on the key question of miscarriage of justice,
applying the correct test in the context of a defective representation claim such as this, and
given full and cogent reasons in respect of the material available in the review exercise
before them.
[29]
In the passages concerning the grounds for judicial review set out in the petitioner's
note of argument, the petitioner more than once states in express terms that the respondents
"wrongly" accepted that the decision as to whether or not to take steps to secure the
attendance of the witnesses SJ and RD at trial, or to call additional witnesses in connection
with putting that defence, were both factors that fell within counsel's discretion. Having
considered the submissions developed by senior counsel on the proposed review grounds, I
am content to characterise the complaints advanced on behalf of the petitioner as being in
16
their substance a disagreement on the merits. The following passage in Sheridan at
paragraph 73 can accordingly be said to apply to the present petition in such circumstances:
"Although lip service is paid at an early stage in the petition, and sporadically
throughout it, to the test in Wordie Property Co (supra), what the petition consists of in
substance is little more than a contention that .... the respondents' decisions were
wrong. This is dressed up behind frequent references to certain matters amounting
to an 'error of law' on part of the respondents in circumstances in which no such
error is visible."
[30]
I have concluded that no error of law has been demonstrated in the present petition
on any of the purported bases contended for on behalf of the petitioner. While the petition
has very properly been framed in the language of a legality challenge, time and again in the
course of the arguments advanced for the petitioner at the substantive hearing, it appeared
to me that the court was in terms being asked to decide whether any reasonable respondent
(the Commission) could decide that any reasonable counsel (the petitioner's trial counsel)
could decide not to call the witnesses referred to in the petition in the particular
circumstances that the petitioner's senior counsel faced amid the heat and dust of a lengthy
and complex criminal trial. In so far as it was submitted that these witnesses would
materially have assisted the defence at trial and provided a body of evidence upon which
the petitioner's trial counsel could have relied when deploying submissions to the jury, in
my view what this amounts to is really a disagreement, albeit as it was presented a profound
one, which has been characterised in the petition, erroneously in my opinion, as an error of
law. The petitioner was in this way asking this court, which had not heard the evidence, to
take in hindsight a view about the weight that certain evidence which was not led would
have carried with the jury at the trial. This cannot be the function of a court of review in a
petition of this kind.
17
[31]
The respondents' exercise of judgment on the issue of a potential miscarriage of
justice on the material before it was accordingly a reasonable one, and in these
circumstances I have concluded that the petitioner's legality challenge fails. The
respondents, being the specialist tribunal charged by Parliament with forming a view on
whether there may or may not have been a miscarriage of justice, have appropriately dealt
with the material before them, fully considered and engaged with that material, correctly
self-directed themselves on the relevant law and duly applied the applicable law in a way
that cannot be faulted.
[32]
In concluding that each of the decisions under review constituted a lawful response
to the petitioner's application, I wish finally to deal with the short point raised by counsel
for the respondents to the effect that any assessment of the reasonableness of a respondent's
decision must be carried out solely on the basis of the material available to that decision
maker at the time of any challenged decision. This point was made in the context of senior
counsel for the petitioner seeking to rely on a significant amount of post-decision material.
While the respondents' point, advanced on the basis of a variety of strands of authority, was
in my view unanswerable, it may be of some comfort to the petitioner to note that the 1995
Act statutory scheme in respect of the respondents places no limit on the number of
applications that can be made, and, as was made clear in the respondents' covering letter
accompanying the SSoR, the petitioner would appear to have even now an opportunity to
apply of new to the respondents with any fresh material that he might wish to found upon.
[33]
In summary the position in this case can be stated as follows. The respondents'
decision in its SoR, adhered to in its SSoR, to conclude that the decision by senior counsel at
the petitioner's trial not to call the witnesses referred to in the petition was a reasonable
exercise of trial counsel's judgement (SoR paragraph 43) was a lawful response which was
18
open to the respondents to make on the material before them. It was further open to the
respondents to characterise the de quo of the petitioner's criticisms in this case as falling into
the category of a performance appraisal (SSoR paragraph 5), thereby being irrelevant to any
ground of review advanced on defective representation. I am therefore in these whole
circumstances satisfied that the respondents were entitled to decline to make a referral.
Disposal
[34]
The petition accordingly falls to be refused. I propose to sustain the respondents'
second and third pleas-in-law to that effect. All questions of expenses will meantime be
reserved.
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