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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 57
P914/20
Lord Justice Clerk
Lord Woolman
Lord Doherty
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the Reclaiming Motion
by
PAUL VINCENT KELLY
Petitioner and Reclaimer
for
JUDICIAL REVIEW OF A DECISION OF THE SCOTTISH CRIMINAL CASES REVIEW
COMMISSION
Petitioner and Reclaimer: Dewar QC; Paterson Bell (for McKennas, Solicitors, Glenrothes)
Respondents: Pirie; Scottish Criminal Cases Review Commission
19 October 2021
Introduction
[1]
In July 2016 at the High Court in Glasgow, the reclaimer was convicted of six charges
of historic sexual assault and one of assault. He asked the respondents (`the SCCRC') to
refer his case to the High Court for an appeal on the basis of defective representation. It
2
declined to do so. The Lord Ordinary refused the reclaimer's petition for judicial review.
This is an appeal against his decision.
Background
[2]
The reclaimer had originally been indicted on a total of 63 charges. The complainers
were all boys within his care at St Ninian's, a residential school in Fife. Several other former
members of staff at the school appeared on the same indictment. The reclaimer gave
evidence denying the charges. Defence witnesses were also led. One, GMcQ, who had been
a pupil at St Ninian's at the material time, said that it was a common occurrence for boys to
sleep in the reclaimer's room. GMcQ himself had encountered no problems, and specifically
neither sexual nor physical abuse, at the school or from the reclaimer. He had invited the
reclaimer and a co-accused to his wedding. Another defence witness, AC, a former pupil of
the reclaimer when he taught at a day school in England, gave evidence of the reclaimer's
good character. The one co-accused remaining on the indictment at the conclusion of the
trial also gave evidence and called one of the acquitted co-accused in his defence.
[3]
The reclaimer sought to appeal his conviction on various grounds including fresh
evidence and disclosure issues relating to two witnesses, RD and SJ, whose evidence had not
been led at trial. That evidence was said to be capable of exonerating the reclaimer. The sift
judges found that the fresh evidence test was not met and that the ground of appeal was not
arguable.
[4]
The reclaimer made an application to the SCCRC requesting that it review his
conviction on the basis of defective representation. The primary focus was on the failure to
lead the evidence of RD and SJ. Complainer JR had given evidence that a group of fellow
pupils, including GMcQ and RD, had been involved in sexually abusing him in the presence
3
of, and with the encouragement of, the reclaimer. In his police statement RD denied that
any such abuse had taken place or that the reclaimer had abused pupils. It was submitted
that RD's evidence would have adversely affected the jury's assessment of JR's credibility,
and supported the reclaimer's defence. So far as SJ was concerned, he remembered being
taught by the reclaimer, and sleeping on the floor in his room in circumstances which were
not sinister. He spoke well of his time at the school. A number of other witnesses who could
also have assisted the defence, by giving evidence of the reclaimer's good character and of
their having no awareness of any abuse taking place, should also have been called.
[5]
The SCCRC decided that the statutory grounds for making a reference (Criminal
Procedure (Scotland) Act 1995, section 194C) were not satisfied. It was not persuaded that
any of the matters raised by the reclaimer met the criteria for defective representation set out
in Anderson v HMA 1996 JC 29; E v HMA 2002 SCCR 341; Jeffrey v HMA 2002 SCCR 822; SD v
McEwan v HMA 2010 SCL 557; McIntosh v HMA (No 2) 1997 SCCR 389; Urquhart v HMA
Ordinary agreed and refused the petition.
Decision and analysis
[6]
The task of deciding whether there has been a miscarriage of justice requiring a
reference to the High Court is one for the SCCRC (1995 Act, section 194C(1)(a) and (b); Raza
v SCCRC 2007 SCCR 403 at para 8). Such decisions are open to challenge by judicial review
only on conventional grounds of illegality (Sheridan v SCCRC 2019 SLT 586 (para [72])). No
doubt in recognition of this, the reclaimer's written submissions asserted that the SCCRC
had improperly exercised its discretion in that: (a) its decision was based upon a material
4
error of law in relation to the test for defective representation; (b) it failed to take account of
relevant and material considerations; (c) there was no proper factual basis underpinning the
determination; and (d) the decision was one that no reasonable decision maker exercising
the discretionary power conferred upon the SCCRC could have reached. It was asserted
that the Lord Ordinary had in turn erred in failing to recognise these errors in law.
[7]
In fact, as the argument was presented, it proceeded on a much narrower basis. It
was acknowledged that the SCCRC had applied the correct test (and thus that the
Lord Ordinary had been correct to make that finding). The dispute was with its application
of the test to the facts. Nor was it maintained that the SCCRC failed to take account of
material considerations or that there was no factual basis for the decision it reached. The
submission was rather that the SCCRC did not attach sufficient weight to certain factors in
the evidence, and that its assessment of that evidence led it to a decision that no reasonable
body could have reached.
[8]
The arguments focused on issues relating to witnesses RD and SJ. This was said to
have been an "all or nothing" case looked at from the reclaimer's perspective, having regard
to the very serious consequences which would follow on conviction of any of the charges.
There was said to be no compelling reason not to call each of those witnesses. Whatever
small risk was involved in leading either of them, it was said to be a risk that was crying out
to be taken. Counsel submitted that the SCCRC erred in failing to recognise this. It should
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.
[9]
We disagree. The SCCRC took account of the comments by senior counsel. She said
that, had RD been called as a witness for the Crown, she would have taken the opportunity
to question him about JR. However, from a tactical view point she was less inclined to call
5
him as a defence witness, given that his statement was not unequivocal and there was a risk
that part of his evidence might support the Crown case. She had called GMcQ, and his
evidence had been supportive of the defence. She was very wary of calling further
witnesses in case parts of their evidence might be harmful to the defence case. Her
impression was that the complainer JR had not been a good witness. In those circumstances
she decided that it was better not to risk calling either RD or SJ. In so far as other witnesses
gave evidence of the reclaimer's good character or of not having seen any abuse, their
evidence would not add materially to the evidence already before the jury. The SCCRC,
having considered the matter at large and in context, concluded that these were decisions
within a range of options reasonably open to counsel.
[10]
The trial judge, in his appeal report, considered that calling RD or SJ would not have
advanced the defence case, and that calling RD could have been dangerous. This reflected
the view of senior counsel as to the risks inherent in calling the latter.
[11]
In our opinion it is plain that the decisions which senior counsel took about which
defence witnesses to call necessitated the exercise of her professional judgement. 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.
[12]
So far as witnesses other than RD and SJ are concerned, calling numerous witnesses
to speak to the same issue, particularly where it is simply an assertion that they were not
aware of a particular matter, would be an inefficient and potentially hazardous way to run a
defence.
[13]
It is worth noting the setting in which decisions of the kind in question must be taken
by the SCCRC. The task of defending someone on serious charges in the High Court is
6
demanding, difficult and stressful. In any trial the dynamics will change from day to day.
Counsel will try to assess how witnesses may have presented themselves to the jury, what
the weaknesses and strengths of the Crown case are, and these will also change with the ebb
and flow of the case. Judgements have to be made based on professional experience and
impression. The nuances of a trial may mean that evidence can cut both ways: it may
appear to be favourable in one light, but there may be another way of looking at it which is
more troubling to the defence. These subtleties all feed into the decisions taken in the heat
of battle. On such matters there is room for professional disagreement. Different counsel
might legitimately favour different approaches, without either of them failing in their task of
properly representing an accused person. Decisions taken during the trial must be viewed
in the context of the situation at the time they were taken, and not with the benefit of
hindsight. It is for these reasons that the test for defective representation is a high one. The
fact that different strategic or tactical decisions could have been taken at trial does not
amount to defective representation resulting in an accused being deprived of a fair trial,
unless of course, the decision is one which no competent counsel could reasonably have
taken. The fact that a defence could have been improved with the benefit of hindsight and
further investigation does not render a failure to take such steps a miscarriage of justice
(Ditta v HM Advocate, 2002 SCCR 891 at [17].)
[14]
The SCCRC recognised all of this in considering the application made to it. We agree
with the Lord Ordinary that it was entitled to reject the application. It applied the correct
test, had an evidential basis for its conclusion, took account of all relevant material and gave
full and cogent reasons. The grounds for judicial review amount to no more than a
disagreement with the judgements which defence counsel made and a disagreement with
the SCCRC's assessment of those judgements. No error of law has been demonstrated,
7
either on the part of the SCCRC or the Lord Ordinary. The reclaiming motion will therefore
be refused.
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