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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Nimmo Smith
Lord MacLean
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[2007] HCJAC47
Appeal No: XC642/04
OPINION OF THE COURT
delivered by LORD OSBORNE
in
NOTE OF APPEAL AGAINST
CONVICTION AND SENTENCE
by
SCOTT PICKETT
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Shead,; McClure Collins,
Alt: Prentice, A.D.; Crown Agent
23 August 2007
A history of the
proceedings
[1] The appellant
was indicted in the High Court at Glasgow on three charges. These were in the following terms:
"(1) on
16 August 2003 at 65 Kilmorie Drive, Rutherglen, you did assault Edith
Kelly.... and pull a chain from her neck and slap her on the face;
(2) on
16 August 2003 at 65 Kilmorie Drive, Rutherglen, you did conduct
yourself in a disorderly manner, shout, swear, engage in a fight with Simon
George Weir, .... and commit a breach of the peace; and
(3) on
16 August 2003 at Kilmorie Drive at its junction with St Blane's
Drive, Rutherglen, you did assault Simon George Weir .... and did drive motor
vehicle registered number P12 KET at him, cause said motor vehicle to strike
him causing him to fall to the ground, and repeatedly drive said motor vehicle
over his body all to his severe injury and permanent disfigurement and you did
attempt to murder him and you did previously evince malice and ill-will towards
him."
[2] The date of 12 July
2004 was
fixed as a trial diet. On that date, the
appellant was represented by Mr Anthony Quinn, "Mr Quinn", solicitor
advocate, instructed by Messrs Beltrami Berlow, solicitors, Glasgow. When the case called in Court, Mr Quinn
intimated to the Court that the appellant wished to plead guilty to charges (1) and
(2), as libelled, and guilty to charge (3) under deletion of the words
"and you did attempt to murder him and you did previously evince malice and
ill-will towards him". The Advocate
depute then stated that a plea of guilty in those terms was acceptable to the
Crown. The plea was thereafter recorded
in the Minute Book and signed by the appellant, the presiding temporary judge
and the Advocate depute. The Advocate
depute then moved for sentence and laid before the Court a copy schedule of
previous convictions relating to the appellant.
He gave to the Court a narrative of the offences to which the appellant
had pled guilty. The Court then
adjourned the diet until 2 August 2004 for the purpose of obtaining a
Social Enquiry Report. Mr Quinn
reserved his plea in mitigation of sentence until that adjourned diet. The appellant was remanded in custody, bail
having been refused.
[3] On 2 August
2004 the Social
Enquiry Report previously ordered was available. It is production 7 in these
proceedings. Mr Quinn then
addressed the Court in mitigation of sentence;
he also laid before the Court several character references relating to
the appellant. These are now available
to us. The Court sentenced the appellant
to six years imprisonment in cumulo
on charges (1), (2) and (3), which sentence was ordered to commence on 12
July 2004. Certain other orders were made relating to
the appellant's driving licence. The
Court advised the appellant that, on account of the guilty plea that he had
tendered, his references, age and clean driving record, the period of
imprisonment had been reduced from eight years.
[4] By a Note of
Appeal, dated 16 August 2004, the appellant appealed against his
sentence on the following grounds:
"1. The
sentence of six years imprisonment is excessive for the following reasons: (a) The
appellant appeared with one minor previous conviction and the sentencing Judge
indicated that she would ignore the previous conviction and treat him as a
first offender. (b) The appellant pled guilty at the trial diet
after negotiation with the Crown.
(c) There were significant
deletions in the libel in charge 3 'attempted murder' was deleted and 'did
previously evince malice and ill-will towards him'. (d) There was no allegation of danger to life
in the amended Indictment and the complainer's injuries were not serious and he
made a successful recovery from them.
(e) The appellant was employed and was in a responsible position as a Junior
Manager with South Lanarkshire Council. (f)
The background to the offence involved
an unexpected meeting between the complainer and the accused against a
complicated background. The complainers (sic) had behaved in a provocative
manner and just before the offence was committed, had approached the appellant
who was in the process of driving off from the locus, shouting challenges to fight. (g)
After the commission of the offence, the appellant had returned to the locus to ascertain whether the
complainer had been injured and thereafter handed himself over to the police
and provided a statement. (h) The Social Enquiry Report was in favourable
terms. There were numerous references
favourable to the appellant before the Court.
2. Due
regard was not given to section 196 of the Criminal Procedure (Scotland) Act 1995."
[5] The
appellant's appeal against sentence came before this Court on 19 November
2004, when
it was continued to a date to be afterwards fixed to allow counsel for the
appellant to consider whether there was a proper basis for lodging an appeal
against conviction. On 9 May
2005 grounds
of appeal against conviction were lodged on behalf of the appellant. These are in the following terms:
"On 12 July 2004 the appellant appeared in the High
Court of Justiciary sitting at Glasgow and pleaded guilty to three
charges. The appeal is directed only to
the last charge. The main allegation
against the appellant had been one of attempted murder but the plea tendered
was to a reduced libel. On that occasion
the advocate depute narrated the circumstances of the offence and the diet was
adjourned for the preparation of reports.
On 2 August the appellant was sentenced to six years' imprisonment.
The
appellant maintains that he was under a material misapprehension as to the
nature of the charge to which he was pleading guilty. He had previously instructed his agents that
he was not guilty of the offence charged.
However, a few days before he was due to appear for trial he was told by
his agent that the Crown was prepared to 'drop' the attempted murder charge and
he was advised strongly to plead guilty to a lesser charge. However he was not advised of the nature or
terms of the charge to which he would be pleading guilty nor was he advised of
the narrative that would be presented by the advocate depute. All he was told was that he may not like what
he was going to hear in Court but he was not to say anything since he would
have the opportunity to have his position presented in three weeks time. On the day the pleas of guilty were tendered
he was remanded in custody. He did not
have the opportunity to consult with his advisers again until the day on which
he was due to be sentenced.
On
2 August he consulted briefly with his advisers but there was no
discussion of the contents of the social enquiry report in so far as it related
to the appellant's account of the offences.
The
appellant did not and does not accept that he was guilty of assaulting the
complainer Simon Weir. That being so the
plea tendered was based on a material misunderstanding as to the nature of the
offence. Accordingly, the plea having
been tendered under material error, his conviction on that charge should be
quashed.
Separatim. His legal advisers failed to give the
appellant adequate advice so as to ensure that he understood the nature of the
charge to which he was pleading guilty.
He thought that he was pleading guilty to an offence relating to the
driving of his vehicle whereby the complainer was injured. That being so his instructions were not
properly followed and the plea to that charge should not have been tendered. In any event no attempt was made to take the
appellant's instructions on the terms of the social enquiry report. Had that been done properly it would have
become obvious that the plea should not have been tendered on the earlier
occasion. In the circumstances he was
denied the fair hearing to which he was entitled.
Accordingly
there has been a miscarriage of justice."
[6] On 6 May
2005 at a procedural hearing, this Court allowed the foregoing grounds of
appeal against conviction to be received late and remitted them to the sift
procedure. Leave to appeal against
conviction was granted on 16 May 2005.
[7] On 14 February
2006 this
Court, having heard counsel and being satisfied that the circumstances
surrounding the conviction of the appellant required further inquiry, continued
the appeal to a date to be afterwards fixed.
Warrant was granted for the citation of certain witnesses. Thereafter, on 23 and 24
May 2006,
evidence was led from the appellant himself, his father, Edward Pickett, Jason Joseph
Beltrami, "Mr Beltrami", a solicitor, and Matthew Philip Berlow, "Mr Berlow",
also a solicitor. Since that diet had
proved insufficient to enable all the evidence to be led, it was adjourned to a
further diet on 9 and 10 May 2007.
On that occasion the evidence of Mr Quinn was led and submissions
made to the Court.
The circumstances of
the offences
[8] In her report
to this Court, the temporary judge before whom the present case came has given
an account of the circumstances of the offences involved, based upon the
narrative put before her by the Crown.
Those circumstances were as follows.
The complainer in charge (1), Edith Kelly, had had a relationship
with the appellant for some time. It
appeared that they had been together for approximately seven years. There was a daughter of the
relationship. Their relationship had
been stormy and they had separated on several occasions. Miss Kelly and Simon Weir, "Mr Weir", the
complainer in charge (3), were former work colleagues. They had met in December 2002 when
Miss Kelly was separated from the appellant. Subsequently Miss Kelly and the
appellant had resumed their relationship, but Miss Kelly had told the
appellant that during the period of that separation she had had an affair with Mr Weir. According to Miss Kelly, the appellant's
behaviour after that had become more abusive and more jealous. In June 2003 the appellant and
Miss Kelly separated for the last time.
On 16 August 2003, Miss Kelly and Mr Weir
met for lunch in Glasgow.
Miss Kelly's child, who was aged 21/2 years at the time, was with her
father, the appellant. The arrangement
was that he would return the child to Miss Kelly at about 6pm.
Miss Kelly then changed the arrangement and telephoned the
appellant requesting him to bring the child to her sister-in-law's house in
Rutherglen. This was agreed. Miss Kelly arrived at her
sister-in-law's house in Kilmorie Drive at about 6pm.
To avoid a possible confrontation, she suggested to Mr Weir that he
should remain in a taxi until he received a text message from her advising him
that the appellant had dropped the child off and had left the house. At approximately 6.05pm, the appellant arrived with his
daughter. He was driving a "Honda Jeep". He delivered the child to the house but an
argument developed between him and Miss Kelly in connection with the
intention of the latter to remove to a flat of her own. After the argument the appellant left the
scene. Miss Kelly sent a text
message to Mr Weir to come to the house.
He arrived a few minutes later.
Shortly thereafter, the appellant returned to the house and spoke to
Miss Kelly, demanding to know who was in the house. An argument thereafter developed between the
appellant and Mr Weir after the latter had made his presence in the house obvious. Miss Kelly became involved in the
argument. During its course the
appellant pulled a chain from her neck and slapped her on the face. Thereafter the appellant and Mr Weir
started fighting with each other;
punches were exchanged.
Eventually the fighting stopped and the appellant walked away. Miss Kelly followed him and another
argument took place in the street with the parties shouting at each other. Mr Weir went out of the house to see
what was going on. At that point it
appeared that the appellant drove off in his vehicle. He drove a short distance into St Blane's
Drive, when Mr Weir walked out into the middle of the road and shouted
after him: "Come on then". The appellant
stopped his vehicle, paused for a few seconds and then reversed down
St Blane's Drive to the point at which Mr Weir was standing. The appellant's vehicle hit Mr Weir, who
fell to the ground. The appellant then
reversed the vehicle over Mr Weir.
He came to a halt while Mr Weir was still under the vehicle. One of the wheels of the appellant's vehicle
had gone over Mr Weir's stomach.
Miss Kelly was heard to shout and scream: "Don't drive away, Simon's under the car". The appellant paused for a few seconds and
then drove forward over Mr Weir's stomach and legs and drove away at speed
along Kilmorie Drive. Mr Weir got
to his feet and was helped to the pavement.
He was covered in blood and shocked.
An ambulance was called and he was taken to hospital. He underwent two operations when he was found
to have a deep wound to his groin and a fracture of part of the pelvic
area. A bone was chipped. There was a concave depression on the inside
of the pelvic area. It was thought that
the injury would leave permanent scarring, although Mr Weir had made a
good recovery. When the appellant was
detained and questioned following these events, he admitted his involvement,
but claimed that the incident to which charge (3) related was an
accident. Production 6 is a
transcript of the tape-recorded interview of the appellant by the police,
following his detention. It should also be
recorded that the appellant and his father, Edward Pickett, have sworn
affidavits relative to the present appeal, which are productions 9 and 10.
The evidence
[9] The appellant himself was led in evidence. He explained that he was a joiner to trade,
but had become a junior manager in South Lanarkshire Council. He had lost that employment on account of his
imprisonment. After explaining his
involvement in the criminal proceedings already narrated, he explained that,
after the incident on 16 August 2003, he had gone to Rutherglen Police
Office to report the matter and his involvement in it. He had been detained and was subsequently
interviewed under tape-recorded conditions.
At the conclusion of that interview, the appellant was arrested,
cautioned and charged with the attempted murder of Mr Weir. At that stage he made no reply. Prior to his subsequent appearance in court
on petition, the appellant saw a solicitor, Mr Berlow, who had been asked
by the appellant's parents to assist. He
had not met him before, but provided him with a brief account of what had
occurred. When the appellant appeared on
petition in court, he was represented by Mr Beltrami, solicitor, who was
then the partner of Mr Berlow. At
that stage bail was sought and granted.
A week or two after that, the appellant had an interview with
Mr Beltrami. That occurred on or
about 26 August 2003.
A further meeting took place on 4 September
2003, which
was attended by both the appellant and his father. The appellant said that he was assured that
the preparation of his defence was proceeding as planned. Thereafter, further meetings took place, at
which the details of the case were considered.
In particular, a meeting occurred on 15 June 2004 at which the terms of the indictment
were considered. The appellant then raised
a number of issues concerning possible witnesses for the defence, when he was
reassured that everything necessary was being done.
[10] The appellant
recounted his first meeting with Mr Quinn, solicitor advocate, in
Mr Beltrami's office on 16 June 2004.
He was to represent the appellant in court. This meeting was brief. The appellant explained that he had not given
a detailed statement concerning the circumstances of the incidents to his
solicitors. A further meeting took place
between the appellant and Mr Quinn on 23 June 2004, which was again short; the appellant had been assured that
preparation of his case was being undertaken as required. The appellant expressed certain criticisms of
what was being done at that stage. In
particular, he had been dissatisfied that no photographs of the vehicle
involved in the incident had been taken, which he had considered
important. The vehicle had belonged to
the appellant's father. The appellant
thought that the damage done to the vehicle might have been relevant. There had been discussion relating to the
terms of the transcript of the tape-recorded interview with the police. The appellant had made clear that he had not
deliberately driven the vehicle over Mr Weir. That position had been explained briefly to
Mr Quinn.
[11] On 7 July
2004, the
appellant again had had a consultation with Mr Quinn, when matters of
detail were gone over; possible
negotiations with the Advocate depute responsible for the prosecution were
discussed. The appellant said that he
had not contemplated a plea of guilty, although he admitted that he had pulled
the chain from Miss Kelly's neck, although he denied slapping her. He stated that he had not thrown punches at
Mr Weir. However, at this meeting
with Mr Quinn the circumstances relating to charge (3) had been
uppermost in his mind. The appellant
accepted that, at this meeting, Mr Quinn had indicated that there would be
a discussion between himself and the procurator fiscal. Mr Quinn had advised the appellant that
it was in his best interests that such a discussion should take place. If the appellant were to have been found
guilty on charge (3) as it stood, he understood that he would have been facing
a sentence of six to eight years imprisonment.
However, so far as the appellant was concerned, at that stage, he
intended to go to trial.
[12] A further
meeting between the appellant and Mr Quinn took place on 8 July
2004, at
which matters of detail and possible discussions with the Advocate depute were
considered. No such discussion had yet
occurred. The appellant had been
promised that Mr Quinn would revert to him later that day, or the next day,
concerning that matter. The position was
that the appellant had been due to appear for trial on Monday,
12 July 2004. The appellant had not heard from
his solicitors again on 8 July 2004, but did do so on 9 July
2004. On that latter date, he had received a
telephone call from Mr Berlow. He had
advised the appellant concerning the negotiations which had been held with the
procurator fiscal. He had told the
appellant that there had been a "great result".
The charge of attempted murder was to be dropped, if a plea of guilty to
"the other charges" was forthcoming. No
more had been said other than that Mr Berlow would see the appellant on
the following Monday morning at the court.
Later on 9 July 2004 the appellant had seen his parents
at 16 Strathclyde Drive, Rutherglen, where he was then
living. He had said to them that: "They'd dropped the attempted murder charge
and that I was advised to plead guilty".
That had been said as a result of the appellant's conversation on the
telephone with Mr Berlow. The
appellant went onto describe his conversation with his father. The appellant had said: "I am going to plead guilty". His father had replied: "What to?"
The appellant said: "They've
dropped the attempted murder charge.
It's a great result". He said
that his father's reaction to this conversation had been one of great surprise,
since he had understood that that the appellant would be going to trial. The appellant had explained to him what had
happened on 16 August 2003.
[13] At this point
in his evidence, the appellant was asked what he had considered that he would
have been pleading guilty to. He replied:
"To pulling the chain off Edith Kelly's
neck and fighting with Simon Weir." He
was asked specifically about charge (3) in the indictment to which he
replied: "My solicitor said the procurator
fiscal had agreed to drop it".
[14] The appellant
had attended at the High Court in Glasgow on 12 July
2004, where
he met Mr Berlow and Mr Quinn.
The interview had lasted only five or ten minutes. It was explained to him that he would require
to "sign a book"; he would not like what
he was going to hear. However, it had
been explained to him that his story would be brought out in three weeks
time. He had understood that, following
the proceedings on that date, bail would be continued.
[15] When, in due
course, the appellant's case was called he was indeed asked to "sign a book"; he had not read what he was signing. He said that he had just signed it. He did not recollect what had been said in
court before that stage of the proceedings.
He had thought that he had been pleading guilty to the lesser
charges (1) and (2); he had thought
that his signature was referable to that.
He explained that he had been very nervous and frightened at the time. He stated that he had not understood that he
was pleading guilty to any part of charge (3). After the plea of guilty had been recorded,
the Advocate depute explained the circumstances in some detail to the
judge. The appellant had listened to
what was said. It was to the effect that
the appellant had deliberately driven his vehicle over Mr Weir. However, he had not objected to what was
happening at that time because of what he had been told by Mr Berlow and
Mr Quinn before the proceedings began about not liking what he would hear.
[16] At the close
of the proceedings, the appellant had been shocked by being remanded in
custody. He had seen Mr Quinn and
Mr Berlow following his remand. He had
not raised his concerns with them regarding the plea which had been tendered,
although he had heard the temporary judge say that he was being remanded in
custody because it was a "very serious charge".
In answer to a question by the court, the appellant said that had not
been sure to what the temporary judge had been referring. He had not made a connection between what the
Advocate depute had said and what the temporary judge had said. The appellant had been reassured by having
been told that his side of the story "would come out in three weeks time." The appellant claimed that he had not
realised that he had plead guilty to a "very serious charge".
[17] The appellant
went onto explain that he had not seen Mr Quinn again until 2 August
2004 at the
court. During the period of the
appellant's remand in custody, he had been interviewed by a social worker, who
had prepared a Social Enquiry Report.
That report is production 7.
The appellant agreed that the section of that report which dealt with
the offending behaviour involved a consideration of the appellant's having
driven over Mr Weir. When
questioned by the Court regarding that, the appellant said that he had been
confused regarding the situation, but thought that everything would be all right
in three weeks time. He had just
answered the social worker's questions.
He had still not realised that he had pled guilty to an assault on Mr Weir
to severe injury and permanent disfigurement.
[18] The appellant
described what had happened on 2 August 2004 at the court appearance. He had met Mr Beltrami and Mr Quinn prior to
the hearing. He had furnished them with
references which he had obtained. He was
assured that his story would be put before the temporary judge. There had been no discussion concerning the
circumstances of the offence as described in the Social Enquiry Report. He had earlier been warned by them not to
speak to the social worker while on remand without their being present. The appellant did not understand the reason
for that.
[19] In the court
itself, the appellant said that Mr Quinn had not said some of what he had
wanted him to say, in particular, that he had not deliberately driven over
Mr Weir. The temporary judge had
asked Mr Quinn why the Social Enquiry Report appeared to be in conflict
with the appellant's plea. Mr Quinn
replied that the Social Enquiry Report had been compiled while the appellant
was "possibly under pressure". After the
sentence was pronounced, Mr Beltrami and Mr Quinn expressed the opinion that it
was harsh and that an appeal against it would be lodged. However, by the time that the appeal
documentation had come to be prepared, the appellant's family were seeking
other legal representation. Accordingly,
the appellant had not complained to Mr Beltrami and Mr Quinn about
what had happened. In court the
temporary judge had specifically asked Mr Quinn whether the appellant had been
aware of the nature of his plea of guilty, to which the reply was that he had.
[20] In evidence,
the appellant was next taken through the note prepared by Mr Quinn in
response to an invitation by the court, production 4. He could not agree with what was said
there. He claimed that, before he had
signed the court record of the plea of guilty, his solicitors had not gone over
the indictment with him, although he agreed that he had received a copy of
it. Throughout the discussions with his
legal advisors he had made it clear that he had not deliberately run over
Mr Weir. The appellant said that he
had not understood that he was pleading guilty to any part of
charge (3). He could not remember
any discussion along those lines. He
would never have agreed to pleading guilty to any part of charge (3). What had happened at the incident was that
the appellant had reversed the vehicle towards Mr Weir, who had been
coming towards it. He had jumped on top
of the spare wheel of the vehicle, mounted at the back, but had fallen off,
whereupon the vehicle went over him.
There had been a collision. The
appellant agreed that he could have stopped the vehicle. There was no possibility that he had
discussed the possibility of a plea of guilty to any part of charge (3)
with his legal advisors. It had not been
explained to him that that was what was to be done. The appellant was then examined as to the
terms of his affidavit, production 9.
He stood by its terms. He
observed that he did not think that his case had been properly prepared by Mr Beltrami
and Mr Quinn. Certain witnesses who
should have been interviewed had not been.
He agreed that he had been told that the charges which he was facing
after the negotiation of the plea of guilty were still serious, as described in
paragraph 17 of the affidavit.
[21] In cross
examination, the appellant admitted that he had understood that he had been
facing serious charges, including a charge of attempted murder. He had understood that he was charged with
assault, the nature of which crime he understood. The appellant had had several discussions
with his legal advisors. He could not
remember now all that had been said.
[22] In regard to
the meeting on 8 July 2004, the appellant agreed that he had
been advised that negotiations with the procurator fiscal were in his best
interests. He had put his faith in his
legal advisors, but had continued to believe that he was going to trial. What was said in paragraphs 13 and 14 of
production 9 was correct, as were the contents of paragraph 15. The appellant had read those parts of the
affidavit before he had signed it. The
appellant had given instructions for a plea of guilty for the first time only
during the course of the telephone call on 9 July 2004 from Mr Berlow. Nevertheless, even then he had been unclear
as to the nature of the pleas to be offered.
Despite that, he had not sought clarification. As regards the first court hearing, on 12 July
2004, the
appellant reaffirmed that he had not read the contents of the book which he had
signed, although he was not in the habit of signing things which he had not
read. He claimed that he had not
realised that he was pleading guilty to charge (3) under deletions. That had never been explained to him. The appellant was unable to explain why he
had not asked for details of the pleas tendered. It had been wrong of Mr Quinn to say to
the temporary judge that the appellant had understood what he had pled guilty
to. However the appellant admitted that
he had not protested about what was happening at that stage. When the sentence of six years imprisonment had
been imposed, the appellant knew that it must have been in respect of something
more serious than charges (1) and (2).
He had not been expecting a prison sentence at all. When the temporary judge had imposed her
sentence, the appellant had understood that she had been talking about the
incident with the vehicle and had been taking into account the circumstances of
that.
[23] The
appellant's father, Edward Pickett, next gave evidence. He confirmed the sequence of events that had
followed the appellant's arrest following the incident of 16 August
2003. He had attended at the High Court building on
12 July 2004 and 2 August 2004, but had not actually been in the
courtroom on the former occasion. He
explained that the appellant had, at an early stage, informed him that he had
been involved in an accident. Following
the incident, the appellant had reported to a police office. The appellant had informed the witness that
he had been charged with attempted murder.
The firm of Messrs Beltrami Berlow had been engaged on 17 August
2003 to
represent the appellant. The witness had
attended a meeting with Mr Beltrami some two or three weeks after the
appellant's first appearance in court on 18 August 2003, along with the appellant. They had been assured that no stone would be
left unturned in the preparation of the appellant's case. The vehicle involved in the incident had belonged
to the witness. The witness had been
concerned that the damage to the vehicle should be photographed. The witness himself had taken
photographs. He had been interested in
the damage to the roof of the vehicle.
He had been informed that a heavy instrument had been used on the
roof. The vehicle possessed a step at
the rear. It appeared that someone had
jumped onto it. After the initial
stages, the witness had continued to take an interest in his son's position and
in the progress of the case.
[24] The witness
confirmed that the trial diet was 12 July 2004.
On the Friday before that, 9 July 2004, the witness had been working. He had spoken to the appellant regarding the
case after work, since he wished to know what was to happen on 12
July 2004. On 9 July 2004 the appellant had come home in the
evening. He had not been his usual
self. The witness had asked him if he
was worried, to which he replied that he was.
The witness himself was then aware of the terms of the charges which the
appellant faced. The appellant had said
to him: "I am advised to plead guilty".
The witness said: "How can you?"
The appellant then said: "I've been advised to plead to a lesser
charge", however he had been unable to say exactly what the lesser charge
was. The witness considered that this
situation was what he called "a turnaround".
At the court building, on 12 July 2004, following the appellant's remand in
custody, Mr Berlow had said to the witness: "I've got egg on my face". This was a reference to Mr Berlow's
previous expectation that the appellant would be granted bail. After the appellant had been sentenced, the
witness had contemplated finding a fresh solicitor for him, because he
considered that the first one had not done a proper job. The witness had not understood why the
solicitors first involved had made the appellant change his plea.
[25] In cross
examination the witness confirmed that on 9 July 2004 he had come to understand that there
was to be a change of heart. The
appellant was to plead to a lesser charge or lesser charges. He had asked the appellant what he was
pleading to, but the latter was unable to tell him. However, he had made it clear that it related
to Mr Weir and the vehicle, in some form.
The appellant had understood that he had knocked down Mr Weir. That was what he was told he was pleading
guilty about. The witness had understood
that the allegation of attempted murder was to be deleted. He was in no doubt, from what the appellant
had said, that it was that incident to which the plea was to relate. The appellant had said to him that his
lawyers had advised this course. The
witness said that he had understood that the appellant was to plead guilty to
knocking down Mr Weir; not driving over
him.
[26] The next
witness led on behalf of the appellant was Mr Beltrami, a solicitor in
private practice, who had previously been in partnership with Mr Berlow. The partnership had ended in October
2005. Prior to that, the witness had
represented the appellant in connection with the present matter. The witness was taken through the details of production 11,
a copy of the account incurred to the witness' firm in this connection. Mr Quinn had been instructed to
represent the appellant at the High Court hearings. The witness had little recollection of what
had occurred prior to the court hearings.
The witness was taken through the documentation contained in productions 12
and 13, which related to the preparation of the case. The witness had not been involved in
discussions concerning the plea of guilty, since he had been on holiday at that
particular time. Furthermore he did not
have a recollection of what had been discussed on 2 August
2004.
[27] In cross
examination, the witness explained his practices and procedures in relation to
the preparation of criminal cases for trial.
He had explained the relevant procedure to the appellant; he stated that there was no apparent lack of
or difficulty concerning understanding such matters on the part of the
appellant. He did not recollect any
requests for clarification. He explained
that, having received a courtesy copy of the High Court indictment, his
practice would have been to read it to the client. The witness was in no doubt that the
appellant had understood the nature of the charges brought against him. Each charge would have been discussed
individually with the appellant, with a view to obtaining his
instructions. This witness had attended
the consultations held on 16 and 23 June 2004.
When the witness had gone on holiday prior to 12 July
2004 he had
understood that there was to be a trial.
He was unable to say whether there had been any discussions concerning
the possibility of a plea of guilty.
When the witness had returned from holiday, he learned that a plea of
guilty had been tendered in particular terms.
The plea represented a change of position so far as the appellant was
concerned, but at no time had the appellant complained concerning the recording
of the plea of guilty. Had that
occurred, the witness would have remembered.
[28] The next
witness led on behalf of the appellant was Mr Berlow, who had been in
partnership at the material time with Mr Beltrami. He recollected the appellant's case. He confirmed what had taken place in the
case, by reference to the account of his firm, production 11. In particular he confirmed that consultations
had occurred on 7 and 8 July 2004, attended by Mr Quinn, solicitor
advocate. During that particular week
there had been negotiations with the Crown in connection with the prosecution,
with which Mr Quinn had dealt. The
situation had been somewhat fraught because the appellant was worried about the
case, as he should have been. The legal
aspects of the case had been explained to him.
The witness had not been involved in discussions with the procurator
fiscal or the Advocate depute. What had
in fact occurred was that Mr Quinn had had discussions with the Advocate depute
and had negotiated a plea to an offence far less serious than that charged in
charge (3). The witness had not
spoken to the appellant between the time of the meeting on 8 July
2004 and the
attendance at the High Court on 12 July 2004.
He was unable to confirm what might have been said during the course of
any telephone conversation between Mr Quinn and the appellant on 9 July
2004.
[29] As regards the
appellant's instruction in relation to negotiations, the witness confirmed that
the appellant would have had explained to him the various options and the
sentences which might be imposed in different situations. In particular it would have been made clear
to the appellant that the sentence imposed following a plea of guilty to a
serious assault would be less than one imposed following a plea of guilty to
attempted murder. Mr Berlow said that a
plea of guilty would never have been tendered to the court without the client's
clear instructions. Furthermore, the
terms of any plea to be tendered would have been arranged before the appearance
at the court. The recollection of the
witness was that during the somewhat fraught consultations on 7 and 8 July
2004
instructions had been obtained from the appellant regarding a plea of
guilty. In consequence the witnesses
cited for the trial were countermanded on 9 July 2004.
[30] Asked about an
entry in his firm's account, production 11, dated 10 July 2004, which related to the making of
preparations for a trial, the witness said that pleas of guilty did not always
materialise; it was necessary to be
prepared. He accepted that he might have
been the conduit through which the outcome of the negotiations had been
communicated to the appellant. He might
have described the dropping of the element of attempted murder in charge (3)
as a "great result". The witness was
clear that he had explained to the appellant at length that the reversing of
the motor vehicle into Mr Weir amounted to an assault. Likewise Mr Quinn had explained that aspect
of the case in great detail.
[31] Looking
generally upon the appellant as a client, the witness said that he had had
difficulty in accepting certain things.
In consequence of that, the witness and Mr Quinn had explained the
different crimes potentially involved in the indictment and their
characteristics. The appellant had been
very anxious and nervous. Clients
differed greatly. Explanations on
different levels might require to be given, depending upon the client. The appellant himself was an educated
man; the witness had had no reason to
suppose that he was not understanding what was explained to him. If the appellant had stated to the witness
that what had occurred was an accident, the event could not properly have been
treated as an assault. The witness was
quite unable to accept that the appellant could have thought that charge (3),
as a whole, was to be dropped by the Crown.
One aspect of the case about which the appellant had been concerned was
the length of the sentence which he might receive. The witness had not considered that he would
receive a sentence of six years imprisonment;
he had been surprised at that sentence.
Once again, the witness affirmed that the appellant had given instructions
to tender a plea of guilty to charge (3), as modified. He was one hundred per cent sure that the
appellant had understood what had been said to him. The witness had not obtained written consent
from the appellant to tender the plea, since he had no reason to think that
there was any failure of understanding.
[32] As regards the
appearance in the High Court on 12 July 2004, the witness did not recollect the
Crown's narrative of the offence to which charge (3) related. He had been surprised when bail had been
withdrawn. He did not recall meeting the
appellant in the cells following his remand in custody. He agreed that he would have been embarrassed
in the circumstances, since he had expected that bail would have been
continued. The witness was unable to
comment on the entry in his firm's account, production 11, dated 16
July 2004; on that date he had been in Barra on a locus
inspection.
[33] Under cross
examination, the witness stated that any telephone call on 16 July
2004 could
have had nothing to do with the plea of guilty.
The witness explained that, initially, the appellant's position had been
that the incident involving the motor vehicle had been an accident. However, on 7 July
2004,
discussions about that took place.
Mr Quinn had obtained further information about the evidence
available to the Crown, which appeared to be damaging to the appellant. That information had come from an earlier
meeting with the Advocate depute. That
material had been explained to the appellant.
In particular, he had been made aware of the existence of a witness who
stated that they had shouted to the appellant: "Do not move the car because
there is someone underneath it". The
appellant had then driven off and run over Mr Weir for a second time. That state of affairs had been explained to
the appellant with the advice that it was desirable to avoid a trial.
[34] The witness
was questioned about the possibility that the appellant had been advised to
plead guilty to charges (1) and (2), but not guilty to charge (3). He replied that advice of that nature would
never have been given in the circumstances.
The discussions with the appellant on 7 and 8 July
2004 had
been about the possibility of discussing with the Crown some modification of
charge (3). The appellant could not
have been in doubt about that. What was
contemplated was the reduction of the charge of attempted murder to a lesser
charge.
[35] The witness
recollected being in attendance at the meeting with the appellant on 8 July
2004 when
charge (3) had been discussed.
Mr Quinn had said that the charge might be reduced to one of
assault to severe injury. It was left to
him to resolve the matter with the Advocate depute. In due course, the Advocate depute had agreed
to drop the allegation of attempted murder from charge (3). Mr Quinn certainly had had authority to
agree to such a proposal with the Advocate depute.
[36] On Monday
12 July 2004 the witness thought that everything had fallen into place. He had warned the appellant that a custodial
sentence was a possibility. At court on
that date, the witness had met with the appellant. They had had to wait for two hours before the
case was called in court. There appeared
to be no doubt in his mind as to what was the nature of his plea; it had been explained to him previously.
[37] In
re-examination, the witness stated that the risks of going to trial had been
explained to the appellant. One outcome
of that could have been that he would have been convicted of attempted murder; if the charge could be reduced, that was a
benefit which could make a difference of years in the sentence of imprisonment
to be imposed.
[38] The final
witness for the appellant was Mr Quinn, a solicitor advocate, with rights
of audience in the High Court of Justiciary since 1994. He had been instructed to represent the
appellant by Messrs Beltrami Berlow. He
had furnished a note in writing in response to the appellant's grounds of
appeal against conviction, which was production 4. In that note there were recorded the various
meetings and consultations that the witness had had with the appellant. In addition, the witness had met with the Advocate
depute assigned to the case on two occasions in the Crown Office. What was recorded in this note was based upon
the witness' recollection and diary entries.
The witness was taken through the entries in Messrs Beltrami Berlow's
account, production 11. On 8 July
2004, there
was a reference to a possible negotiations with the Advocate depute, but that
matter had been discussed also on 7 July 2004.
The witness had had meetings with the Advocate depute on 6 and 9 July
2004. By the latter date, the witness
had had instructions to negotiate a plea.
At the earlier meeting with the Advocate depute, the witness had been
given information regarding the Crown's case on charge (3). In particular, the Crown had a medical
witness able to speak to the injuries inflicted on Mr Weir; in addition, there was an independent eye-witness
to the matters which formed the basis of charge (3). Prior to 7 July 2004, preparations were being made for a
trial, but, on that occasion, discussions took place regarding a possible
plea. A factor in the consideration of Mr Quinn
had been that the independent eye-witness's evidence was very compelling
against the appellant. There was
explained to the appellant the fact that a conviction for attempted murder was
a possibility, if the matter went to trial.
On 8 July 2004, the witness had recapitulated the
options open to the appellant and had repeated the advice given to him on the
previous day, to the effect that there was a "strong possibility" of a
conviction of attempted murder. It had
also been explained to the appellant that, on charge (3), there was a
serious chance of a custodial sentence being imposed. The outcome of the discussion on 8 July
2004 had
been that the appellant had instructed Mr Quinn to approach the Crown with
a view to negotiating a plea in regard to charge (3). He had been prepared to plead guilty to
anything short of attempted murder. In
the opinion of the witness, the appellant had had no difficulty in
understanding what was being said to him.
The instructions given on 8 July 2004 amounted to a radical change in his
position.
[39] At the
witness's meeting with the Advocate depute on 9 July 2004, it had been indicated by the latter
that the Crown was prepared to delete attempted murder and the averment
regarding the evincing of malice and ill-will from charge (3), if a plea
were to be forthcoming. The witness
explained that thereafter, he had spoken to Mr Berlow, asking him to
advise the appellant as regards what had been achieved.
[40] On 12 July
2004, the
witness had come to the High Court on the understanding that the case was going
to be resolved. When he met the
appellant at the court building on that day, he had confirmed his
instructions. He had explained to the
appellant that his plea in mitigation would be reserved for the sentencing diet
on 2 August 2004. He had told
the appellant that he hoped that the latter would again be admitted to bail,
but that that could not be guaranteed.
When the case came into court the Crown narrative had been given,
following which the temporary judge ordered a Social Enquiry Report. The witness had seen the appellant in the
court cells following his appearance, when he was distressed at having been
remanded in custody. The appellant had
signed the court book recording a plea of guilty without difficulty; he had been warned that it would be necessary
for him to do so.
[41] On 2 August
2004, the
witness had spoken to the appellant, but did not have a recollection about the
subject matter of the conversation. He
considered that he would have seen the terms of the Social Enquiry Report
before the case was called. He
recollected that the appellant had provided him with written references to be
put before the court. The witness was
taken through the terms of the Social Enquiry Report, in particular the section
dealing with offending behaviour. He
confirmed that his final instructions from the appellant were that he been responsible
for an assault upon Mr Weir. He had
instructed that he had twice driven over Mr Weir.
[42] The witness
confirmed that an interchange with the temporary judge, such as that described
on page five of her Report, production 8, had taken place. What the witness was narrated as having said
there was correct. The significance of
what was narrated in the Social Enquiry Report had not struck the witness on 2 August
2004; sometimes his experience suggested that
accused persons gave mitigatory statements to social workers. In summary, the witness stated that there was
no possibility whatsoever that the appellant had misunderstood what was
discussed, particularly at the meeting of 7 July 2004.
[43] In cross
examination, the witness outlined his extensive experience of advocacy in
criminal matters. He had worked in that
area of practice since 1980. Asked about
the independent eye-witness previously referred to, the witness said that they
had heard Edith Kelly shout: "Don't drive off, Simon's under the car". It was the fact that the appellant had indeed
then driven off that persuaded Miss Kelly that he had done so
deliberately. The witness was in no
doubt that he had received instructions from the appellant to negotiate with the
Crown concerning the withdrawal of the allegation of attempted murder. There had been no question of the appellant
pleading guilty merely to a road traffic offence. Furthermore, there was no question of
charge (3) being dropped as a whole.
The witness stated that, had he not had instructions to negotiate a plea
from the appellant, he would not have approached the Advocate depute. It was not his practice to obtain
instructions for a plea of guilty in writing.
In consequence of the agreement reached with the Advocate depute as to
the terms of the plea, witnesses for the trial had been countermanded.
[44] At the
conclusion of the evidence for the appellant, the Advocate depute indicated
that the Crown did not intend to lead evidence.
Submissions of the
Appellant
[45] Counsel for
the appellant commenced by drawing our attention to Healy v HMA 1990 S.C.C.R.110,
a case concerned with an attempt to withdraw a plea of guilty. He stated that that matter did not arise in
the present case, but that certain observations made in the case were of
assistance here. At page 118, the Lord
Justice Clerk indicated that it would not be in the interest of justice if
individuals, after they had been sentenced, were permitted lightly or easily to
withdraw a plea of guilty which had been tendered merely by asserting that, on
their part, there had never been any real willingness to make the plea. The test was whether the pleas had been
tendered under some real error or misconception, or in situations which were
clearly prejudicial to the appellant.
Counsel submitted that there were prejudicial features in being in the
present case. In particular, the
appellant's legal advisors did not have complete knowledge of the Crown's
case. There was a conflict between the
need to do justice and the need for finality in criminal proceedings. The former was the dominant
consideration. Turning to the evidence,
counsel acknowledged that there was a conflict between the appellant's evidence
and that of other witnesses, particularly Mr Quinn. It was not suggested that any person had been
dishonest in the giving of their evidence;
the matter was one of perceptions and different perceptions existed. Counsel acknowledged, in response to a
question by the court, that the appellant had not intervened when his pleas of
guilty had been tendered. It was
suggested that he might have been frightened or confused at that time. Putting the matter simply, if the appellant had
told the truth in his evidence to this court, he should succeed in his appeal; if he had not, the appeal should fail. The unsatisfactory nature of the situation
was highlighted by the fact that the sentencing judge had become concerned
about the pleas recorded, as appeared from her report.
[46] The background
to the matter was that the defence case for the appellant had not been properly
prepared for trial. At least as late as 7 July
2004, the
appellant had thought that he was going to plead not guilty and go to
trial. However, it was suggested that
soon afterwards he gave instructions to plead guilty to "anything short of
attempted murder". A conflict had
emerged between the description of the offending behaviour in the Social
Enquiry Report, obtained after the pleas of guilty had been recorded, and those
pleas. In the face of that, professional
action had been necessary. There should
have been a consultation on the matter and it should have been resolved. However, it was not dealt with
satisfactorily. It was accepted that Mr
Quinn had been very clear in his own mind as to what his instructions
were. However, for one reason or
another, the appellant thought that his viewpoint was to be expressed on 2
August 2004. A factor of significance was that, in the
reference from the Minister of Rutherglen West Parish Church, dated 28
July 2004,
it was said that the appellant had pleaded guilty to a charge of serious
assault, but maintained that "it was not done intentionally". That gave rise to serious concern about the
appellant's state of mind and understanding of the circumstances.
[47] Counsel
recognised that the road that he had to follow was a hard one, with obstacles
in the way. However, the appellant
wished his position to be put before the court.
In bringing this appeal, the appellant had always understood that, in
the event of its success, there could be a second prosecution. If there were doubts in the mind of the court
regarding the justice of the situation, those doubts should outweigh the need
for finality in criminal proceedings. It
was contended that there had been serious misunderstanding regarding the
incident giving rise to charge (3) between the appellant, on the one hand,
and Mr Quinn, on the other. The
appellant had expected his position to have been put before the temporary judge
on 2 August 2004. There had
been no question in the present case of an agreed Crown narrative. As previously submitted, there was no
question of dishonesty on the part of any witness. There had been a series of unfortunate
misunderstandings. The approach adopted
in Healy v HMA should be applied; the
appeal should be allowed in order to do justice. The conviction of the appellant should be
quashed. There was no obvious obstacle
to a retrial. If there were technical
objections to a remedy being granted, the present appeal could be treated as an
application to the nobile officium.
Submissions of the
Crown
[48] The Advocate depute submitted
that there was a need for finality in criminal proceedings. Pleas of guilty should not be questioned,
save in the most exceptional circumstances.
There did not appear to be any difference of view between the parties as
to the law in that respect. At the heart
of the case was a conflict of fact. It
was said that the appellant throughout had thought that he was pleading guilty
to two minor charges, charges (1) and (2), but not to any charge concerned
with driving over Mr Weir. The
evidence of Mr Quinn and Mr Berlow suggested that that was not the
position. The position of Mr Quinn
and Mr Berlow was that there were to be negotiations with the Crown
concerning the terms of charge (3).
A plea of guilty to that charge would be made upon the basis that the
allegation of attempted murder was withdrawn.
The evidence of the appellant's father was of some significance. His evidence indicated that the appellant had
understood that he would be pleading guilty to a charge relating to the
knocking down of Mr Weir, with the deletion of the allegation of attempted
murder. That was in stark contrast with
what the appellant had said in his evidence.
The evidence of Edward Pickett was in conformity with the position
of Mr Quinn and Mr Berlow. The
Court was being asked to believe that those two experienced solicitors had
laboured under a serious misapprehension regarding the appellant's
understanding and instructions. That was
against a background in which it was not said that the appellant had any
learning or language difficulties. The
opposite was the case. The appellant had
held employment in a managerial position.
He knew very well at the time of the interview by the police that he was
facing a charge of attempted murder.
That charge had appeared in the petition at the outset of the case and
had appeared as charge (3) in the indictment served upon him. Instructions must necessarily have been taken
from him on that charge. It would
stretch credibility to breaking point to argue that the appellant was in a
"daze" at all consultations and in court on two occasions.
[49] Mr Quinn
had not been challenged as regards his evidence concerning the advice that he
had been given relating to the categories of assault. Plainly there had been discussion of assault
to the danger of life. Furthermore, his
suggestion that he had received instructions to negotiate with the Crown was
not challenged. Indeed, in paragraph 14
of the affidavit sworn by the appellant, production 9, he affirmed that he
had agreed to negotiations taking place.
That material supported the evidence of Mr Berlow and Mr Quinn
regarding the nature of the discussions which occurred. If the appellant had not been prepared to agree
to a modified plea to charge (3) there would have been no purpose in the
negotiations. Mr Quinn was an
experienced solicitor in criminal matters.
It would have been inconceivable that he would have opened discussions with
the Crown and agreed a plea, if he was not clear as to the nature of his
instructions.
[50] Certain
criticisms had been ventilated in examination by counsel for the appellant and
faintly in submissions regarding the preparation of the appellant's case. That did not feature as a ground of
appeal. In any event, such criticisms
were not borne out by the evidence. What
remained to be done was that two witnesses had to be precognosced. Mr Quinn met with the Advocate depute and had
been told about the evidence that they could give. Thus, Mr Quinn had all the material
necessary for the proper conduct of the case.
This appeal was not concerned with bad advice or a failure to obtain
evidence; it was based upon the view
that instructions had not been given for a plea of guilty to a modified
charge (3). The suggestion was that
Mr Quinn had acted in defiance of the appellant's instructions. A major difficulty for the appellant was that,
the plea of guilty having been tendered and accepted, there followed confirmatory
events that required the appellant's participation. In particular, he required to sign the court
record of the plea, which he did without protest. Mr Quinn had given evidence to the
effect that, on 12 July 2004, he had confirmed with the appellant
his position regarding the plea. The
appellant himself was present in court during the proceedings. He must have heard Mr Quinn tell the
temporary judge that he was pleading guilty to charges (1), (2) and (3),
under deletion of the allegation of attempted murder and of having previously
evinced malice and ill-will. If he had
thought that he was pleading guilty only to charges (1) and (2), he might
reasonably have been expected to make that clear at the time. There followed the Crown narrative which
embraced the circumstances of charge (3).
Following the court hearing on 12 July 2004, the appellant said nothing to his
legal advisers concerning the problem which he now said existed.
[51] Something had
been said about the terms of the Social Enquiry Report, but a fair reading of
it showed that it was not materially inconsistent with the appellant's
plea. Reference was made to page 2
of that document. The section of the
report headed "Review and Conclusion" was significant. It narrated that the appellant had
acknowledged the seriousness of his actions.
That was inconsistent with the notion of a mere accident.
[52] The Advocate
depute went on to draw our attention to certain authorities. He said that Reedie v HM Advocate 2005 SCCR 407 set out the proper approach to be taken to a case such as
this. At paragraph 11 the Lord
Justice Clerk stated that, in view of the conclusive nature of a plea of
guilty, it could be withdrawn only in exceptional circumstances, examples of
which were given. The Court ought to be
very slow to accept claims that a plea of guilty was tendered under material
error. In this connection the Advocate
depute relied upon Healy v HM Advocate at pages 118-119. An example of such exceptional circumstances
was to be found in Boyle v HM Advocate 1976 S.L.T. 126 at
pages 127 and 129. The Advocate depute also
relied on Regina v Green 15 September 1995, (C.A.) In the present case, there had been no fewer
than four consultations in a case which was of a relatively simple character.
[53] As regards
procedure, the present proceedings were an appeal under section 106 of the
Criminal Procedure (Scotland) Act 1995. That was a correct vehicle in which to raise
the issue, as appeared from Evans,
Petitioner 1991 S.C.C.R. 160 at pages 163-164. In all the foregoing circumstances, the
appeal should be refused.
The decision
The nature of the present proceedings
[54] There can be no doubt that the present
proceedings are an appeal brought under the provisions of section 106 of the
1995 Act. When they commenced, the
appeal was confined to one against sentence, as appears from the Note of
Appeal, dated 16 August 2004.
In consequence of the interlocutor of this Court, dated 6 May
2005, the
scope of the appeal was allowed to be extended to embrace an appeal against
conviction, when the grounds of appeal against conviction were allowed to be
received late. At one stage during the
submissions of counsel for the appellant, it was suggested that these proceedings
might be treated as an application to the nobile
officium of the Court, if it were considered that the appellant's plea of
guilty to charge (3) could not be "withdrawn", in the context of an appeal
under section 106 of the 1995 Act. In
our view, for the reasons explained by Lord Justice General Hope in Evans, Petitioner at pages 163 and 164 of the report in that case, there can
be no question of these proceedings being treated as a competent application to
the nobile officium.
[55] Certain
consequences follow from a proper appreciation of the nature of the present
proceedings. First, the powers of this
Court in the context of this appeal are as defined in section 118 of the
1995 Act. Those powers do not embrace a
power in the Court to authorise the withdrawal of the appellant's plea of
guilty to charge (3) in the indictment.
Secondly, the only question for this Court in the present appeal is
whether there has been a miscarriage of justice in the circumstances of this
case, which is a consequence of the provisions of section 106(3) of the 1995
Act. In the event of the Court
concluding that a miscarriage of justice has occurred, the Court's only option
would be to quash the appellant's conviction on charge (3) of the
indictment; there could be no question
of an order being pronounced which would have the effect of restoring these
proceedings to the state in which they stood prior to the appellant's tendering
of pleas of guilty. In other words, in
these proceedings, the clock cannot be turned back.
[56] Since, in the
course of the hearing before us, in examination, cross-examination and
argument, certain criticisms were made of the adequacy of the preparations made
by the appellant's then legal advisors for the trial contemplated before the
pleas of guilty were tendered and accepted, we think it right to say that we
regard such criticisms as irrelevant to the issues properly arising in the
case. There is no ground of appeal
reflecting such criticisms. Furthermore,
in the context of the present case, there could be no reliance upon the principles
set out in Anderson v HM Advocate 1996 JC 29.
That case was concerned with the question of whether a representative's
skill or diligence, or lack of it in preparation or conduct of a defence in a
trial could constitute a miscarriage of justice. In our opinion, the principles expressed in
that case can have no application in the context of a prosecution resolved by a
plea of guilty, such as this.
[57] The concept of
a miscarriage of justice has not been and probably cannot be comprehensively defined. However, we consider that guidance may be
derived from authority as to the criterion which this Court ought to apply in a
context where it is suggested that a plea of guilty has wrongly been made and
accepted and a sentence passed upon the resulting conviction. In the highly exceptional circumstances of Boyle v HM Advocate, such a situation existed. It became evident that the applicant for
leave to appeal in that case had pled guilty to a charge of which he was
innocent. It was conceded by the Crown
that the applicant could not have been concerned in the robbery to which he had
pled guilty and that there had been a miscarriage of justice in respect of the
conviction. In delivering the Opinion of
the Court at page 129, Lord Cameron said:
"It is obvious, however, that very
grave difficulties must lie in the path of an applicant who seeks to complain
of a miscarriage of justice in a case in which he himself has not only tendered
a plea of guilty to the charge libelled against him on which the conviction
sought to be appealed against is recorded, but has done so when acting with
legal advice and in full knowledge of the nature and detail of the charge to
which deliberately and falsely he has tendered that plea and further, has
through the mouth of his counsel, presented a precise and detailed plea in
mitigation of sentence. While that is
necessarily so, it does not follow that there cannot be a case in which appeal
against conviction following a recorded plea of guilty may not be competently
submitted to this court."
[58] While in Rimmer, Petitioner, 2002 S.C.C.R. 1, at page 8, certain reservations
were expressed by Lord Cameron of Lochbroom concerning the procedural aspects
of the decision in Healy v HM Advocate, we do not think that those
criticisms extend to what was said in the latter case about the circumstances
in which the Court may grant a remedy where it is averred that a plea of guilty
has wrongly been tendered. At
page 118, Lord Justice Clerk Ross indicated that before the Court would
grant a remedy in relation to such a plea of guilty
"the court would require to be
satisfied that there were exceptional circumstances justifying such a
course. As the advocate-depute put it,
it would have to be shown that the pleas had been tendered under some real
error or misconception or in circumstances which were clearly prejudicial to
the appellant. We are satisfied that
that is the approach which must be made because it is a recognised principle of
the law that there must be some finality in litigation and it would not be in
the interests of justice if individuals after they had been sentenced were
permitted lightly or easily to withdraw pleas of guilty which had been tendered
merely by asserting that on their part there had never been any real willingness
to make the plea."
[57] These views
were echoed in Reedie v HM Advocate. Lord Justice Clerk Gill, at paragraph 11
(of the Opinion of the Court), said this:
"A plea of guilty constitutes a full
admission of the libel in all its particulars (Healy v HM Advocate). It is not a conditional admission that is
subject to reconsideration in the light of a subsequent decision of the court (Dirom v Howdle 1995 S.C.C.R. 368), nor, in our view, in the light of a
subsequent verdict in the trial of another party on the same charge. In view of the conclusive nature of such a
plea, it can be withdrawn only in exceptional circumstances (Dirom v Howdle): for example, where it is tendered by mistake (MacGregor v MacNeill 1975
J.C. 54) or without the authority of the accused (Crossan v HM Advocate 1996
S.C.C.R 279). There is little scope, if
any, for the withdrawal of a plea that has been tendered on legal advice and
with the admitted authority of the accused (Rimmer,
Petitioner)."
It is upon the basis of the foregoing statements of the
appropriate criterion in a context such as this that we now proceed.
Our assessment of the
evidence
[60] Plainly, the principal basis of the
appellant's case that his plea of guilty to charge (3) was tendered under
real error or misconception must be his own evidence. As regards his testimony concerning the
incident involving the motor vehicle which he was driving and the complainer,
Simon Weir, we did not find his evidence particularly impressive. In relation to his several meetings with his
legal advisers, he was, at times, vague.
It appeared to us that he was also at pains to minimise the duration of
these meetings, although that was the subject of precise records in the account
of Messrs Beltrami Berlow, production 11.
Furthermore, he appeared to say different things at different times
concerning his pleas of guilty, particularly in regard to charge (3). He said that he had told his father that he
was pleading guilty since the Crown had dropped the attempted murder charge,
that is to say that he was pleading guilty to charge (3), under deletion
of the reference to attempted murder.
However, at other stages in his evidence he stated that he did not
understand that he was pleading guilty to any part of charge (3). This latter position seemed difficult to
reconcile with the position which he adopted with the author of the Social
Enquiry Report, production 7, to whom he acknowledged "the seriousness of
his actions". That could hardly be a
reference to the subject matter of charges (1) and (2) in the indictment. In addition, we have great difficulty with
the appellant's explanation of why he did not protest to his legal advisors on
the occasion of the court hearing on 12 July 2004, when the terms of the pleas were
signed by him and were the subject of oral discussion in court. We find it almost inconceivable that a man,
such as the appellant, who was plainly of some ability, had held a managerial
position with his former employers and whose mental health was not in question,
could sit silently in court while, according to him, Mr Quinn, his
solicitor advocate, grossly misrepresented his position. During the course of his evidence, the
appellant repeatedly claimed that matters relating to the scope of his plea to
charge (3) had not been explained to him by his legal advisors. As we shall explain later, having regard to
the evidence of those advisors, we find that position impossible to
accept.
[61] The
appellant's father, Edward Pickett, gave evidence generally about his son's
position. However, he also gave evidence
of importance concerning a conversation which he had had with the appellant on Friday 9
July 2004
after Mr Berlow had telephoned the appellant to say that the Crown was
prepared to drop the attempted murder element in the indictment. He explained that the appellant had said to
him that he had been advised to plead guilty to a lesser charge. This witness asked the appellant what he was
pleading guilty to. He then said that
the appellant had replied that it related to Mr Weir and the car in some
form. He said that the appellant
understood that he had knocked Mr Weir down. It was that that he was pleading guilty to. Edward Pickett understood from what the
appellant said to him that the allegation of attempted murder was coming out
but that he was pleading guilty in connection with that particular
incident. However, Edward Pickett later
said that while the appellant was to plead guilty to knocking down Mr Weir, he
was not pleading guilty to driving over him;
that was his belief.
[62] We have no
reason to doubt the evidence of Edward Pickett regarding this particular
conversation. Its importance is this,
that it completely undermines the suggestion made by the appellant himself that
he was not pleading guilty to any part of charge (3).
[63] As regards the
evidence of Mr Beltrami, he was not involved in the crucial discussions
about the case, since he was on holiday around the time of the court appearance
on 12 July 2004. Furthermore,
his memory relating to such dealings as he had had with the case was limited.
[64] The evidence
of Mr Berlow was, however, different.
He had been closely involved with the discussions leading up to the
tendering of the plea of guilty to charge (3) on 12 July
2004. He gave evidence of full explanations having
been given to the appellant concerning the legal implications of the charges in
the indictment. He was quite adamant
that a plea of guilty would never be tendered without an accused's clear
instructions. He explained how the
various scenarios might emerge in this case, depending on whether the appellant
went to trial, or pled guilty on some agreed basis. Plainly the risk of conviction of attempted
murder was an important factor in the discussions. He described the consultations on 7 and 8
July 2004 as
"fraught", but instructions were obtained regarding a plea to a lesser form of
charge (3). He said that he could
not accept that the appellant could have thought that charge (3) as a
whole was to be dropped. On the
contrary, Mr Berlow testified that the appellant had given instructions to
tender a plea of guilty to charge (3), as modified. He agreed that initially, the appellant's
position had been that what had happened to Mr Weir had been an accident. However, in the discussion on 7
July 2004 he
stated that Mr Quinn had obtained further information about damaging evidence
that might have been led against the appellant, if he were to go to trial. That evidence had been explained to the
appellant. It related to the shouting to
the appellant not to move the car because someone was underneath it. It was on the basis of this and the other
evidence that advice had been given to plead guilty as indicated.
[65] Perhaps Mr Quinn
was the source of the most cogent evidence regarding the discussions which led
up to the tendering of the modified plea of guilty to charge (3). We found him to be an impressive
witness. He had many years of experience
as a solicitor advocate and previously as a solicitor in criminal matters. He indicated how he had explained to the
appellant his various options in the face of the evidential difficulties which
existed for him. On 7 July
2004 he had asked
the appellant to consider the various options overnight so that the matter
could be discussed again on 8 July 2004.
On 8 July 2004 Mr Quinn had recapitulated the
options available to the appellant and had advised him that, at a trial, there
was a strong possibility that there could be a conviction of attempted
murder. It was against that background
that the appellant had been advised to explore the possibility of negotiating a
plea to a lesser charge. He specifically
testified that he had explained to the appellant the nature of assault and
assault to severe injury. The outcome of
the discussion was that the appellant had instructed Mr Quinn to approach
the Crown. Mr Quinn stated that the
appellant's position was that he would plead guilty to anything short of
attempted murder. He also said that, in
his opinion, the appellant had had no difficulty in understanding what he had
said to him. On the occasion of the
appearance in court on 12 July 2004, Mr Quinn testified that he had
confirmed his instructions with the appellant.
We have no difficulty in accepting the evidence given by Mr Quinn
on these matters.
[66] Having regard
to the evidence of Edward Pickett, Mr Berlow and Mr Quinn, we find it
quite impossible to hold that it has been proved on the basis of the
appellant's evidence that his plea of guilty to charge (3), as modified, was
tendered "under some real error or misconception or in circumstances which were
clearly prejudicial to the appellant", to quote the words used in Healy v HMA at page 118. We are
satisfied from the evidence of the appellant's solicitor, Mr Berlow, and
his solicitor advocate, Mr Quinn, that he was given full advice relating
to the implications of the indictment which he faced, particularly of
charge (3), and concerning the various options open to him. It appears to us on the basis of that
evidence that the appellant was advised concerning the risk of conviction of
attempted murder, if he went to trial.
In the face of that risk, he was advised that it would be in his best
interests that, if possible, he should plead guilty to a limited form of charge
(3), with the reference to attempted murder and having previously evinced
malice and ill-will being deleted. That
was a course which, in the event, the Crown were prepared to accept. Whatever private thoughts the appellant may
have had about his situation, we are satisfied that he was under no
misapprehension concerning the nature of the plea to be tendered on his
behalf. We consider that the appellant's
conduct in court on 12 July 2004, to which we have already referred,
is consistent with our conclusion in this regard.
[67] In all of
these circumstances and having regard to the criterion which must be applied in
a case of this kind, which we have enunciated, we are quite unable to hold that
a miscarriage of justice has occurred.
In these circumstances the appeal against conviction is refused. The appeal against sentence will require to
be heard on a date to be fixed.
