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HIGH COURT
OF JUSTICIARY
[2006] HCJ 09
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OPINION OF
LORD BRAILSFORD
in the cause
HER MAJESTY'S ADVOCATE
against
THOMAS McGINLAY
___________
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30 October 2006
[1] The
trial in this case commenced on 19 September
2006 against Andrew Beaton, Ian McGinlay and Thomas McGinlay
("TM"). All three were charged with the
murder of Gerard Canning in Hood
Street, Clydebank on 21 March 2005. TM was represented by Mr Boag-Thomson, Q.C.
and Mr Maclaughlin, Advocate. On
9 October, the fourteenth day of the trial, both Andrew Beaton and Ian
McGinley pled guilty to charges of assault.
Mr Boag-Thomson sought, and was granted, an adjournment to allow
the former co-accused to be precognosced on behalf of TM. Both before and after the adjournment Mr Boag-Thomson
moved that the court should, in the interests of justice, desert the trial pro loco et tempore. On both occasions I refused that motion. After I had refused that motion for the
second time Mr Boag-Thomson indicated that for professional reasons neither
he nor Mr Maclaughlin could continue to represent TM. I interject to observe that as a result of
information I have subsequently heard in the course of the protracted and
difficult proceedings that have followed Mr Boag-Thomson's departure it
has become apparent that Mr Boag-Thomson was well justified in declining
to act further for TM.
[2] Following
Mr Boag-Thomson's withdrawal an adjournment was sought, and granted, to
enable alternative counsel to be instructed.
After a delay of three days Mr Lamb, Q.C. and Mr Smart,
Advocate appeared on behalf of TM on 12 October. Initially Mr Lamb moved me, the third occasion such a motion had been made on behalf
of TM, to desert the trial diet. I heard
argument and again refused the motion. Mr Lamb
then moved me for time to prepare for trial.
He initially requested transcripts of all evidence heard to date. Whilst it is not a normal part of Scot's
criminal procedure to provide parties with transcripts of evidence during trial
I perceived no objection in principle to this course. Enquiry by my clerk with the agency which
transcribes court tapes revealed however that it takes three days to transcribe
one day's court evidence. Even allowing
for Mr Lamb's concession that he did not require all the evidence transcribed
and would be content with transcripts of the evidence of three witnesses the
task of preparing transcripts would have required approximately ten days. I considered that to be an unwarranted and
unnecessary delay. As an alternative,
and following argument and discussion on the point, I indicated to Mr Lamb
that the court was prepared to make available to him tapes of the evidence of
the witnesses he had identified.
12 October, the date of this stage of proceedings, was a
Thursday. The proposal I made was an
adjournment until Tuesday 17 October, that is
four clear days in which to listen to the tapes and prepare to continue the
trial. Having made the necessary
arrangements with the court administration I indicated that the courtroom,
tapes and recording equipment would be made available to Mr Lamb and
Mr Smart over the weekend of 14-15 October. He would be able to hear the tapes, repeating
them or parts of them as often as he wished.
Only my macer would be present. I
also reminded Mr Lamb that in addition to this facility he would have
available to him the notes of evidence made by Mr Maclaughlin who had been
present throughout all the evidence thus far heard and the notes taken by or on
behalf of his instructing agent. I was
also informed that the Crown had informally offered to make available to Mr Lamb
the Crown junior's notes. I was of the
opinion that armed with all that information, and given the timescale I
suggested Mr Lamb would be properly able to conduct the defence of
TM. Mr Lamb accepted that position
and accordingly I adjourned until Tuesday 17 October.
[3] When
the court re-convened on 17 October Mr Lamb informed me that TM had
dispensed with his services and those of his junior Mr Smart. Following their departure the court was addressed
by TM. He indicated that he did not wish
to represent himself but considered that he regarded Mr Lamb as improperly
prepared to conduct his defence. In
particular at consultation the previous afternoon, 16 October, Mr Lamb
had been unable to deal with certain points arising from the evidence that he,
TM, had put to him. TM's position was
that only by having transcripts of all the civilian witnesses so far led in
evidence, the evidence of the police officer who had interviewed a witness
Joseph Bradley and the paramedic witness could someone be adequately prepared
to defend him. I asked him if he was
making a motion for the tapes of the witnesses he had identified to be
transcribed. He indicated he was. At that stage I retired to consider the position.
[4] I
formed the view that I was faced with a difficult point in the law relating to
criminal practice. An accused person had
dispensed with the services of two teams of experienced senior and junior
counsel charged with his defence. He was
not moving the court to allow a process of transcription of evidence which was
not only highly unusual in Scot's practice but would have as a practical
consequence the possibly fatal disruption of a trial on a serious charge where
there had already been nearly three weeks evidence. Having regard to the difficult and novelty of
this question, and its' potential impact on criminal practice, I decided to
invoke the provisions of section 1(5) of the Criminal Procedure (Scotland)
Act 1995 and invite two other judges to join me in a bench of three to
determine this issue. Accordingly on the
afternoon of 17 October I sat with Lord Hardie and Lord McEwan to hear
TM's motion.
[5] At
this hearing TM repeated that he thought Mr Lamb was inadequately
prepared. He indicated, and this was new
information to the court, that he had been content with Mr Boag-Thomson's
conduct of his defence. On being pressed
he did however confirm that he had changed his instructions to Mr Boag-Thomson. He then stated that he had originally indicated
Mr Boag-Thomson that he would, and I quote from my notes, "plead to a culpable if my brother walked
away". His position changed when his
brother pled guilty to assault. He said
that with his brother "walking" he
changed his position. He could not allow
a situation where his parents had both of their sons in jail and therefore
wanted his counsel to proceed on the basis that he denied all involvement in
any attack and was seeking acquittal.
Hitherto, Mr Boag-Thomson had presented the defence on the footing
that his client accepted responsibility for killing Gerard Canning but without
murderous intention. In light of this
change of stance Mr Boag-Thomson's professional difficulty becomes
obvious. There was further argument
presented and the court also enquired of TM's agent, who was a solicitor
advocate and who had remained instructed throughout these procedural events,
what his position was. At the conclusion
the court was unanimously of the view that TM's motion was unwarranted, that he
had been given adequate opportunity to instruct alternative counsel, that
counsel had been given sufficient time and facilities to prepare and that the
interests of justice demanded that the trial should continue. The motion was accordingly refused and, it by
then being almost 4.00pm, the case
was adjourned until the following morning when TM would either have to defend
himself or be represented by his agent in his capacity as a solicitor advocate.
[6] When
the case called the following day, 18 October, Mr Reilly, Advocate
and Mr Toner, Advocate appeared.
They indicated that they had been instructed to represent TM. Notwithstanding the court's decision of the
previous afternoon I was prepared to permit Mr Reilly to make
representations on behalf of TM. I
considered this to be in the interests of substantial justice and, frankly,
likely to induce the best conduct of the case.
Notwithstanding the court's ruling the previous day and the by now
pressing need for progress I was, as I made him aware, likely to look favourably
on an application by Mr Reilly for time to prepare. Mr Reilly accepted this and indicated he
would need time. After a recess to
discuss matters further with his client Mr Reilly addressed me again. He indicated that he had a problem concerning
a forensic science report that had been obtained by the defence. The report, by Annette Olga Clarey a Forensic
Biologist and dated 31 May
2006, dealt inter alia
with blood staining on items of clothing recovered from TM. Mr Reilly submitted that this report
took no account of additional information now provided by TM. He then moved a motion in two alternative
parts. Firstly, and
primarily, to adjourn until 7 November to enable the defence to obtain a
new forensic report from Miss Clarey. Secondly, and in the event I was against the
first part of the motion to desert the diet pro
loco et tempore.
[7] I
pressed Mr Reilly as to why the suggested course was necessary and he
initially confined himself to indicating that this arose because of "issues now
identified that came to light" when the former co-accused were
precognosced. When pressed further he
said that he could not reveal what those matters were without breaching client
confidentiality. On further pressing by
me he, quite correctly in my view, sought leave to consult with the Dean of
Faculty regarding his professional duties and his obligation to the court. I allowed Mr Reilly time to consult with
the Dean. Following his return he
advised me that he had further information to give to me, but that its
sensitivity in the context of this trial was such that he could only safely
impart it if the court was cleared. In
the exceptional circumstances that had developed I acceded to this and cleared
the court. Mr Reilly then informed
me that TM's position was that by reason of intoxication through a combination
of drink and drugs he had no recollection of any involvement in an attack on
Gerard Canning. Following the
precognition of the former co-accused Beaton and his brother Ian McGinlay he
was now prepared to accept his involvement in a non-murderous attack on
Canning, they having vouched his involvement.
The scenario was of a non-murderous attack involving TM outside 39 Hood
Street.
Such an attack accounted for the presence of Canning's blood on TM's
clothing. A second murderous attack
subsequently occurred further up Hood
Street, perpetrated by an unidentified
assailant and after TM left the scene. A
forensic report was now required to investigate this scenario. In questioning Mr Reilly about this
position I put to him that the critical question might be whether the
information which gave rise to the perceived need for a further forensic report
truly arose from information new to TM.
[8] The
Crown opposed this motion. The advocate
depute indicated that he was in possession of information which established
that, contrary to the position now being advanced, TM's position throughout the
pre-trial process had been of recollection of involvement in events outside
39 Hood Street, Clydebank. In this
regard the advocate depute indicated to me that
following receipt of the defence forensic report the Crown had precognosced
Miss Clarey. Miss Clarey had
been questioned about certain aspects of her report and in responding indicated
that she had been
"... informed by the
defence that Thomas McGinlay has stated that he was present when the accused
Andrew Beaton assaulted the deceased with a metal bar."
Such a position, contended the
advocate depute, was inconsistent with a position now stated by TM that he had
no memory of events.
[9] Before
giving my views and decision I indicated my appreciation to Mr Reilly and
Mr Toner for appearing in this case in the exceptionally difficult
circumstances that have developed. Their
willingness to attempt to assist both the court and TM and thereby assist the
process of delivering criminal justice in Scotland reflected well on them and
was consistent with the public service tradition of the Faculty of
Advocates.
[10] I consider the position advanced on behalf of TM wholly untenable. I stress this is no fault of or reflection on
Mr Reilly's conduct which, I repeat, was laudable. I cannot however accept TM's position. I cannot accept that the information he now
presents as novel and obtained only when Beaton and Ian McGinlay were
precognosced was in fact new to him.
Critically, and with regret, I cannot on the information presented to me
accept his contention that he had no memory because of drink and drugs of the
events outside 39 Hood Street. I reached this view for two reasons. Firstly, the information in the precognition
obtained from Annette Clarey, particularly the passage where she reveals that
she was informed that TM stated he was present when Beaton assaulted Canning
with a metal bar. That is patently
inconsistent with no memory of these matters.
I interject here to recognise the force in Mr Reilly's submission
that I should be careful with the weight I attach to this information. It is information obtained without the check
of cross-examination and would, further, be inadmissible in the trial. I accept all of that. If this information stood alone I would be
hesitant in relying on it. There is however
one further important piece of information.
As already noted TM had previously expressed his satisfaction with Mr Boag-Thomson
and indicated that he only lost his services when he, TM, changed his
instructions. His original instructions
to Mr Boag-Thomson were, as already noted, that he would plead to a
culpable if his brother walked. That
position is wholly inconsistent with the position he now maintains of no
knowledge of events. Having regard to
both these factors I refused Mc Reilly's motion in both its points and
adhered that the trial proceed without further
delay. I appreciated that this course
might involve TM requiring to conduct his own defence
in a murder trial. In my opinion that
was the inevitable, or unfortunate, consequence of his conduct in instructing
counsel.
