A recent decision from the Inner House of the Court of Session, delivered by Lady Dorrian, has confirmed the ability of Counsel to use their own professional judgement in making decisions and provides helpful guidance on the legal test for "defective representation".
The reclaimer in this action, having been convicted of six charges relating to his time as a member of staff at a residential school, asked the Scottish Criminal Cases Review Commission ("SCCRC") to refer his case to the High Court for an appeal on the basis of defective representation. The reclaimer's grounds of appeal were, amongst other things, that certain witnesses were not called to give evidence on his behalf at trial, contrary to his wishes, which in his view, would have exonerated him and led to his acquittal. He argued that as a result, his defence was not properly put forward to the jury.
The SCCRC refused the application on the basis that the statutory grounds for making a reference to the High Court for review of the reclaimer's conviction were not satisfied. In terms of s.194C of the Criminal Procedure (Scotland) Act 1995, it must be shown that (a) that a miscarriage of justice may have occurred; and (b) it is in the interests of justice that a reference should be made.
The reclaimer sought to challenge the SCCRC's decision not to pursue an appeal and pursued a petition for judicial review to the Court of Session, which was refused by the Lord Ordinary at first instance. This reclaiming motion appealed against that refusal.
The reclaimer’s asserted that the SCCRC had improperly exercised its discretion, however the case ultimately proceeded on a far narrower basis: that the SCCRC had applied the correct test, but not applied it correctly to the facts of the case, nor given sufficient weight to certain pieces of evidence, which led it to a decision no reasonable body could have reached.
The arguments focused on the evidence of the two witnesses that had not been called on behalf of the reclaimer at his criminal trial, allegedly with no compelling reason having been given to him for not doing so. It was submitted that Counsel who acted for the reclaimer in the original trial failed to acknowledge the potential benefit of calling these witnesses, which outweighed any small risk involved in leading them. It was said that the SCCRC ought to have concluded that the decisions in question were beyond the scope of strategic or tactical decisions which might reasonably be taken by the defence team.
The Inner House disagreed. It found that the SCCRC took account of comments made by Senior Counsel who had acted for the reclaimer in the criminal trial to the effect that she felt she had taken sufficient evidence from other witnesses and did not need to add any risk by calling those that might end up hurting the defence, when their evidence would not materially add to the evidence already before the jury. The SCCRC decided that this was a decision reasonably open to Counsel to make. This decision was supported by the trial judge, in his appeal report, who considered that calling these witnesses would not have advanced the defence case, and that calling one of them in particular could have been dangerous, which reflected the view of Senior Counsel.
The Inner House stated that it was clear that Senior Counsel made decisions that required the exercise of her professional judgment, calling upon her experience and her impressions of the trial at that point. A defective representation ground could succeed only if it could be said that such decisions were so flagrantly wrong that they would not have been taken by any reasonably competent Counsel. The Inner House agreed that it would have been "inefficient and potentially hazardous" to call multiple witnesses to speak to the same issue. It also commented upon looking at decisions in the context of the stressful, shifting atmosphere of defending serious charges in the High Court where there will be room for professional disagreement about approaches that could or should have been taken. The fact that a different strategic or tactical decision could have been made does not amount to defective representation; unless the decision in question was one which no competent Counsel could reasonably have taken.
The court concluded that, in making its decision, the SCCRC had applied the correct legal test, had an evidential basis for its conclusion, took account of all relevant material and gave full and cogent reasons. The Lord Ordinary was entitled to reject the reclaimer's application. The court therefore refused the reclaiming motion on the basis that no error of law has been demonstrated, by the SCCRC or the Lord Ordinary.
This case underlines the fact that the test for defective representation is a high one. It confirms that decisions taken by Counsel, or indeed any lawyer, in exercise of their professional judgment, require to be viewed in context. Such decisions will not amount to defective representation, even if in hindsight a different decision could have been taken, provided it is a decision a reasonably competent Advocate would have made.