Mcfarlane, R v [1999] EWCA Crim 496 (23 February 1999)

THE VICE PRESIDENT: On 24th November 1995, at the Central Criminal Court, following a trial before His Honour Judge Hawkins QC, the applicant was convicted on count 1, murder, and on count 2, affray, and sentenced respectively to life imprisonment and 18 months' imprisonment concurrently.

He now renews his application for leave to appeal against conviction following refusal of leave by the Single Judge, a differently constituted division of this Court having granted an extension of time of 1 year and 11 months in which to make this application.

There were two co-accused, a man called Berkerey and another called Williamson-White, who were both convicted of doing an act tending and intended to pervert the course of public justice, which was the third count in the indictment. They were both acquitted on the second count of affray. They were both sentenced to 3 years' imprisonment for the perversion of public justice offence.

The charge of affray arose from an attack on both the deceased and his companion at the time, a witness called Gibbs-Jenkins. The third count, in relation to perverting the course of justice, arose from the actions of the two co-accused in disposing of the knife used in the killing.

At the trial, the applicant, who had a financial interest in the Tumblers public house, did not give evidence. But it was accepted on his behalf that he had been present at the time of the stabbing and had driven off, in a black BMW motorcar, not long afterwards. The defence sought to show that the evidence identifying the applicant as the person who had stabbed Cook was unrealiable.

The evidence, in a little more detail, so far as it is material for present purposes, was to the effect that, on the evening of 19th March 1995, Cook and Gibbs-Jenkins had been drinking together in the Tumblers public house. In the course of the evening, Cook had sought to force his attentions on a woman called Corina Steadman, who was a prosecution witness and had, at one stage, punched her in the back, when she rebuffed his advances.

The evidence was that the man who had stabbed Mr Cook had a bald or shaved head and wore earrings. He was a black male. There had, at one time in the public house, been another black male with a moustache; he was rather older than the man identified as stabbing, and he had left the public house some little time before the stabbing occurred.

Shortly after the stabbing, police officers came to the public house. There was evidence that one of them had pointed out the applicant to a witness as matching the description of the assailant, but the witness had said that the applicant had not been the assailant. That witness was Gibbs-Jenkins. His explanation of his failure to identify the applicant, at that stage, was that he had been preoccupied with trying to help Mr Cook. At all events, at a subsequent identification parade, Gibbs-Jenkins did not pick out the applicant as the assailant; he picked out a volunteer.

Corina Steadman gave evidence about Cook being the worse for drink, making a nuisance of himself and punching her in the back. She described following Cook out of the public house, into the lobby, and being herself called back. She also described the applicant as following Cook into the lobby. She said Cook pushed the applicant and said something insulting about the applicant being black, but she did not see any more and moved away.

Some time later, a telephone call was received by her. The applicant was on the other end and he asked her not to give his name to the police. Indeed, she gave a witness statement to the police which did not disclose the applicant's name. But, subsequently, she picked him out at an identification parade and made a further statement, naming the applicant as the man who had been involved in the altercation with Mr Cook, although, as we have said, she did not see any stabbing.

Another woman called Georgina Allen also gave evidence. She also, in her first witness statement, failed to disclose the name of the applicant, which she well knew. Subsequently, she picked the applicant out on an identification parade.

There were a number of male witnesses, unknown to the applicant, who were travellers and who gave evidence for the prosecution. Patrick Ward described Cook leaving the public house and a black male with earrings coming up behind him and saying "go on, make a move." He then described the black male stabbing Mr Cook and then coming back into the public house and saying "nobody saw anything, its all over."

A day or two later, Mr Ward saw a black male driving a BMW motorcar, whom he identified as the male with the earrings, and he took a note of the car number. It transpired, in due course, that this was indeed the number of the applicant's BMW motorcar.

Francis Mongan described a black male, with a bald head and earrings, engaged in a dispute with Cook and he heard the black male say "make your move." Shortly afterwards, that man stabbed Cook and indeed kicked him. A little afterwards the black male came back into public house and said "you've seen or heard nothing." He, on a subsequent identification parade, picked out a volunteer, not the applicant, as the assailant.

Patrick Mongan gave evidence of Mr Cook being stabbed by a black male, wearing earrings. There was other evidence also called on behalf of the prosecution. None of the witnesses who had seen the stabbing picked out the applicant on an identification parade.

Police officers, who came to the scene, gave evidence of seeing a black male with a shaven head and earrings coming from the Tumblers and driving off in a black BMW. They did not pick out the applicant on a subsequent identification parade. But it was accepted, in the course of the trial, that the applicant had indeed been the driver of the black BMW on that occasion. Indeed, a pair of earrings were found in the applicant's ears, when he was arrested, which matched the description of those which the witnesses had identified.

"flagrant incompetence" of the defendant's solicitor, Mr Rajani. It is said that Mr Rajani ignored the defendant's instructions that he was acting in self-defence when he stabbed Cook, and prevailed on the defendant to rely on challenging the evidence as to the identity of the killer. To this end, it is said that Mr Rajani persuaded the defendant not to answer any questions in interview, to say nothing of his true defence of self-defence to either of the counsel who represented him at trial and to give no evidence before the jury.

Without dissent from either side, and taking into account the considerations, among others, identified in section 23 of the Criminal Appeal Act 1968, as amended, this Court heard evidence from the applicant, who was cross-examined by counsel on behalf of the Crown, and the Court called Mr Rajani, who was cross-examined on behalf of the Crown and the applicant. No application was made for further evidence to be called on the applicant's behalf.

Immediately after the stabbing, the applicant sought to dissociate himself from it. He told the eyewitnesses that they had "seen nothing". He disposed of the knife or caused it to be disposed of and it was never recovered.

After the police had arrived, he left the public house and drove away in his BMW. About half-an-hour later, he spoke on the telephone to Corina Steadman, and said "tell the police what happened but don't tell them it was me." Corina did not disclose the defendant's name in her first statement to the police but she did so later.

Following his arrest on 25th March, having asked for a Mr Brownlow as his solicitor, the applicant was seen by Mr Rajani, a partner in the same firm, whom he did not know. Mr Rajani said he wanted the full truth. The applicant told him he had killed Cook and became distressed. Mr Rajani did not record this admission or, at any time, tell counsel of it. At identification parades, none of the witnesses to the stabbing picked out the applicant. The witnesses, in particular, Corina Steadman and Georgina Allen, who ultimately identified the applicant as being present at the public house, did not see the stabbing.

In his observations, recorded in writing on 13th July 1995, which were the result of a careful analysis of the prosecution case by both the defendant and Mr Rajani, the defendant commented, in detail, on the prosecution witnesses' statements. It is manifest, by virtue of those comments, that the defendant was, at that time, keeping open the possibility of challenging the identification evidence as well as the possibility of a defence of self-defence.

Those observations, in due course, accompanied the brief to counsel for the old-style committal proceedings which took place. The brief to junior counsel for those committal proceedings, prepared on 17th July, instructed counsel to challenge the identification evidence and an unsuccessful submission of no case was made on the basis of the inadequacy of that evidence.

On 7th September, at Parkhurst Prison, a man called Stewart Blackstock was interviewed at length about the deceased, by Mr Rajani. He had known the deceased many years before, but not recently. There is a detailed note of the interview. It appears that he said little, if anything, to sustain a defence of self-defence. By the end of September, the defendant had clearly abandoned the possibility of relying on self-defence. When counsel advised on evidence, on 2nd October, a full proof had still not been obtained from the defendant, and counsel was still in the dark as to whether the defendant was admitting that he had been at the public house. On 11th October, in instructions in his own handwriting, the defendant described, as "total rubbish" the suggestion that he had been Cook's attacker. By 13th October, the defendant was saying that he had been at the public house and was aware of the incident but had not been involved in it. He also claimed not to know whether he had been driving his BMW on the relevant date. Misidentification was, by this time, plainly the defence of choice.

On 27th October, the defendant's, apparently final, written statement, the accuracy of which he confirmed on 7th November, asserted "someone had been stabbed, I had nothing to do with it" a statement which Mr Rajani, in his evidence before us, accepted he knew was untrue. This statement accompanied the brief to counsel for trial. The instructions in that brief said "it is thought that the tactic to be put forward to best serve the defendant would be to argue that the jury could not be sure that the man who stabbed Cook" was the defendant.

There were conferences between the defendant and counsel, at which Mr Rajani was present, on 19th July, 2nd November and 9th November, that on the 9th attended by leading and junior counsel and lasting all day. Self-defence was never mentioned at any of those conferences, by the defendant or anyone else. The defendant did not give evidence at trial. The decision that he would not do so was freely made by him, following full advice from counsel. He endorsed leading counsel's brief to this effect, as appears from trial junior's counsel's handwritten advice on appeal. Immediately after the verdict, the defendant thanked all his defence team for doing the best they could. His present complaints are the product of a long period of gestation. He required the extension of time to which earlier we referred.

We find that, at no stage, did the defendant give instructions to Mr Rajani that, in stabbing Cook, he had acted in self-defence. We specifically reject his evidence that he did so in the police cell when he first met Mr Rajani.

We do not accept that the defendant was persuaded by Mr Rajani to challenge the identification evidence when his true instructions were to run self-defence. Both the applicant and Mr Rajani wanted to and did keep open, until the last possible stage, a decision as to which defence should be run.

Ultimately, the defendant's instructions, particularly those to which we have referred in his own handwriting, were that he was not the killer. It is inconceivable that if this defendant, intelligent and experienced as he is, had wanted to run self-defence, he would not have mentioned this to counsel at or subsequently to the committal proceedings and particularly in the three conferences with counsel to which we have referred. We reject his evidence that he was, in effect, cowed by Mr Rajani, into not raising the matter with counsel.

In the light of these findings, there is no arguable prospect of success in challenging the safety of the applicant's convictions, on the basis that it was Mr Rajani's misconduct which caused misidentification rather than self-defence, to be the defence at trial. We accept, as we have already found, that Mr Rajani wanted to do his best to keep the defendant's options open, and forbore from taking specific instructions, until he and the defendant had carefully, and in detail, analysed the prosecution case.

There are undoubtedly grounds for criticising Mr Rajani's conduct. He described it as "an error of judgment" to conceal from counsel the fact that, when he first saw the defendant he had confessed to the stabbing. It was more than that. We do not understand why, in his attendance note relating to 25th March, Mr Rajani did not record the confession to the stabbing which, it is common ground, the applicant then made to him. Had he done so, some of the present criticisms of Mr Rajani could not have arisen.

His explanation to us was that there was no need to record it and, in view of the defendant's distress at the time, he was anxious to calm him in readiness for forthcoming police interview. That is an unacceptable explanation. The reality is that, in an attempt to do the best he could for his client, he was deliberately not taking his instructions. He hoped, thereby, as we have found, to keep the defendant's options open as long as possible. That was a course in which the defendant readily acquiesced.

In our judgment, a solicitor is entitled to defer taking full instructions from his client until the detail of the prosecution case against him is known, and it was entirely proper for Mr Rajani to instruct counsel, at the committal proceedings, to challenge the quality of the identification evidence. But he should have, contemporaneously, recorded the defendant's confession to the stabbing and told counsel about that confession. He ought also to have obtained the defendant's written and signed instructions as to the essence of his defence soon after the committal proceedings, at the latest.

Solicitors have a duty to do the best they properly can for their clients. They also have a duty not to mislead or seek to mislead the court by being party to the putting forward of a case which they know or have good reason to believe is false.

It is incompatible with these duties for a solicitor either to make up or to select a defence to a criminal charge. A solicitor seeking to "keep options open", when that may involve a change in story by the client, will almost always lay himself open to subsequent criticism by his client, by the court, or, as in the present case, by both. Once he has his client's instructions as to his defence, a solicitor should advise, or seek advice from counsel, on the relevant law, and make appropriate enquiries as to evidence which may support that defence. What, emphatically, he should not do is encourage a client to procrastinate before saying what his defence is. This is particularly so when the possibility of very different defences arises. The sooner the client identifies his defence to those advising him, the sooner can its preparation and presentation be properly undertaken.

England and Wales Court of Appeal (Criminal Division) Decisions

SIDNEY LEE MCFARLANE, R v. [1999] EWCA Crim 496 (23rd February, 1999)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mcfarlane, R v [1999] EWCA Crim 496 (23 February 1999) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1999/496.html Cite as: [1999] EWCA Crim 496