STEWART GILLESPIE v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Kirkwood Lord Osborne Lady Cosgrove | Appeal No: C714/96 OPINION OF THE COURT delivered by LADY COSGROVE in NOTE OF APPEAL AGAINST CONVICTION by STEWART GILLESPIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: G. Bell, Q.C., A. Brown; Balfour & Manson
Respondent: Batchelor, Q.C., A.D.; Crown Agent
10 January 2002
Introduction
[1]The appellant was found guilty in the High Court at Glasgow on 18 October 1996 of a charge of murder. He was also found guilty of three other crimes, including a charge of attempted murder involving the use of a firearm, in respect of which he was sentenced to a total of 10 years imprisonment to take effect from 7 June 1996. The amended grounds of appeal lodged in May 1997 relate to the conviction on the murder charge only.
[2]This appeal has a long and unsatisfactory history. Amended and supplementary grounds of appeal have been allowed at various stages. It was eventually heard by us on 30 and 31 August and 17 December 2001 and, finally, on 10 January 2002. On 17 December 2001, the third day of the appeal hearing, leave was sought on behalf of the appellant by Mr. Bell, Q.C. to amend the fourth ground of appeal; the effect of that proposed amendment was to assert that the trial judge had misdirected the jury on the crucial issue of the sufficiency of the evidence against the appellant. Although this amendment came at a very late stage and sought to introduce a wholly new argument not reflected in any of the existing grounds, we decided to allow it to be received. Having heard Mr. Bell's submissions on that ground as amended, we reached the view, for reasons which we explain later in this opinion, that it was without merit and refused it.
[3]Thereafter, also on 17 December 2001, Mr. Bell lodged a wholly new ground of appeal to the effect that the appellant's right to a hearing within a reasonable time guaranteed by Article 6(1) of the European Convention on Human Rights had been violated by the time taken to hear and dispose of this appeal. At the hearing on 10 January 2002 it was accepted on behalf of the appellant that consideration of this ground should be deferred until other cases pertinent to this issue and presently pending before the Privy Council had been decided. The advocate depute was content with that approach. In this connection we note that the appellant continues, at the present time, to serve the sentence of 10 years imprisonment imposed in respect of his conviction on the other charges not appealed against. Ground 4 of the grounds of appeal having been disposed of on 17 December 2001, and the other grounds having been departed from, the submissions as finally presented to us at the hearing on 10 January 2002 were restricted to the matter raised in ground 1, to the effect that the representation of the appellant by his solicitor, Mr. Dennis Coffield, was negligent and resulted in a miscarriage of justice.
The murder charge and the evidence led in support of it
[4]The murder charge of which the appellant was convicted and which is the subject of this appeal was in the following terms:
"On 23 May 1996 in Glencoats Drive, Paisley you Stewart Gillespie while acting with other persons did assault Mark Rennie, care of 17 Glencoats Drive, Paisley now deceased and repeatedly discharge a firearm at him and shoot him on the body and you did murder him."
[5]The trial judge explains in his report that the appellant was found guilty of that charge, but on the evidence it was clear that it could only have been on an art and part basis. The evidence led at the trial as to the circumstances surrounding the murder of Mark Rennie on 23 May 1996 are described by the trial judge in his report to this court and in his note to the Parole Board. He tells us that, according to the deceased's partner, Rita McLeod, who lived at 17 Glencoats Drive, Paisley, there had been ill-feeling between the deceased and the Gillespie family. The deceased was said to have damaged the car of the appellant, Stewart Gillespie, and also that of his brother, William Gillespie who lived at No. 2 Glencoats Drive. She said that the appellant had threatened to put a bullet through the heads of both herself and her partner. In particular, he had made that threat between 6 and 7 p.m. on the night of 23 May 1996. The deceased had been in and out of his partner's house all day and he had, to use her words, "snorted some speed" at one point. She had informed him about a group of four unknown men whom she had seen going into William Gillespie's house. The men had then walked up Glencoats Drive on the opposite side of the street from her house but kept looking over at her house. They stopped at the corner and one of the men seemed to be using a mobile telephone. They then walked back down the street looking over at her house and returned to William Gillespie's house.
[6]When Rita McLeod told the deceased about these men, he went out and then came back about five minutes later. She did not know where he had been, but he told her not to leave the house until the police helicopter had arrived. He then said he was going out. She thought he was attempting to draw the four men away from her house and she tried to stop him going by grabbing his jacket. She then felt something up his sleeve and realised that he had a gun concealed there. The deceased left the house and Rita McLeod watched him go down the street. As he passed No. 8 Glencoats Drive, which was on the other side of the road, a man came running out of it. He was wearing gloves and a scarf and was holding a hand gun. That man ran towards the deceased and, when he was a short distance away, he fired the gun. She heard a bang but did not see the deceased. Later someone came and told her that he had been shot, and she went out and found him lying near the junction of Dalskeith Road and Dalskeith Avenue which is not far from Glencoats Drive. At first she told the police that the appellant had shot the deceased, but the following day she identified the gunman from photographs as a man by the name of Stewart Boyd. Stewart Boyd subsequently stood trial for the murder of the deceased but was acquitted.
[7]The trial judge tells us that the Crown case against the appellant was that he had acted in concert with others unnamed in the murder of the deceased. The Crown relied on the evidence of the various threats which the appellant had made against Rita McLeod and the deceased. The main evidence, however, came from a witness called Sheila McKirdy, who lived at No. 8 Glencoats Drive with her partner, George Kerr. The latter was living at that house on the day of the murder, having absconded from Dungavel Prison.
[8]Sheila McKirdy said in her evidence that at about 8.30 p.m. on 23 May 1996 the appellant came in the back door of her house. She and George Kerr were in the livingroom. She was not expecting the appellant. He asked if he could go upstairs. She did not object and so the appellant had gone upstairs to a front room window overlooking Glencoats Place, where, during the day, the deceased, Mark Rennie, had been seen coming and going from a house at No. 17 Glencoats Place. The witness stayed in the livingroom while the appellant was upstairs. She said that the phone rang at some stage and it was answered upstairs. After about five minutes she heard the appellant say "There's the bastard there." At that moment a man came running through her house from the back door. He brushed past her and went into the hall where George Kerr was. She said that the man, who was wearing a black top with the hood up, was Stewart Boyd. She saw Mark Rennie on the other side of the street. He started running. Boyd ran after him. She heard a bang and then Boyd ran back across the road and ran up the side of William Gillespie's house at No. 2 Glencoats Drive. The appellant then came down the stairs of her house and said "Did he miss the bastard?" He then left her house by the back door. Later that evening the appellant telephoned her and said that "Everything will be all right."
[9]The trial judge tells us that George Kerr's evidence differed from that of Sheila McKirdy in material respects. George Kerr said that the appellant had phoned him on the evening of 23 May 1996 and asked if he could have some temgesics. George Kerr said that he told him that he could, and the appellant came round for them at about 9 o'clock. He came in through the back door and George Kerr told him that the temgesics were lying on the window-sill of the front bedroom. The appellant then went upstairs and, as he was coming down again, Stewart Boyd came running through the house and out the front door and shot the deceased. While George Kerr's evidence placed the appellant in the house at 8 Glencoats Drive that night, he maintained that that was a pure coincidence. The trial judge points out that, while George Kerr's evidence exculpated the appellant of any involvement in the murder of Mark Rennie, the important point for the prosecution was that it placed him at the locus at the time of the murder, whereas the appellant's defence was one of alibi to the effect that he was at his mother's house when the deceased was shot. Although the alibi was supported by the appellant's brother and his brother's wife, it was clearly rejected because the jury returned a unanimous verdict on this charge.
Ground 4 as amended
[10]Ground 4 as stated in the amended grounds of appeal lodged on 21 May 1997 is in the following terms:
"That in any event the evidence given by Kerr was insufficient to entitle the jury to hold that the appellant was guilty of murder. His evidence was insufficient to corroborate the evidence of the witness McKirdy as to whether the appellant said or did anything to show he was art and part guilty of murder."
The amendment which Mr. Bell sought and was granted leave to make to that ground on 17 December 2001 was as follows:
"By adding at the end of the existing ground 4
Esto there was other evidence sufficient to constitute corroboration of McKirdy from Rita McLeod as now contained in the supplementary report by the trial judge received on 4 October 2001, the jury were not directed that they would have to be satisfied that the appellant had made threats in the terms set out in the report and the absence of a specific direction on this matter constituted a misdirection by the trial judge resulting in a miscarriage of justice."
[11]Mr. Bell, in presenting this amended ground of appeal, directed our attention to the passage in the trial judge's charge to the jury in which he explained that the Crown relied on the evidence of Rita McLeod and of Sheila McKirdy, whom he described as a crucial witness. He suggested to the jury that they might be slow to convict the appellant if they had any reasonable doubt as to the credibility and reliability of her evidence because it was really she who set the scene for the whole incident in so far as it might affect the appellant. The trial judge then went on to refer to the evidence of George Kerr and reminded them of the fact that one thing that witness did say was that the appellant was in the house when Stewart Boyd ran through and shot Mark Rennie in the street. Mr. Bell made reference to the fact that George Kerr had previously given a statement to the police in which he had gone much further towards incriminating the appellant, but when he gave his evidence in court he denied having made that statement. The trial judge had very properly directed the jury that that statement was not, in the circumstances, evidence in the case.
[12]Mr. Bell's submission was that the evidence of George Kerr did not provide corroboration of the appellant's involvement in the murder on an art and part basis: that witness spoke to the appellant's presence in the house at the time, but mere presence at the locus could not be incriminatory; the witness gave no evidence as to anything said or done by the appellant that would indicate knowledge of the activities of the gunman.
[13]Mr. Bell explained that efforts had been made to have the notes of the evidence of the witness Rita McLeod extended but that had proved impossible, the shorthand writer no longer being available. The trial judge had, however, provided a supplementary report in which he summarises the evidence of that witness. It was clear from that report that Rita McLeod spoke to the fact that there had been ill-feeling between the deceased and the appellant for several weeks prior to the murder. The deceased had smashed up the appellant's brother's car two to three weeks before his death. She saw the appellant a few times during the week before the deceased was shot. He said something to her and threatened to put a bullet through her head. He had threatened three or four times between the Sunday and the Thursday prior to the murder to shoot her and the deceased. She took his threats seriously.
[14]Mr. Bell's submission in support of his amended ground of appeal was to the effect that the trial judge's charge contained what was said to be no more than a hint that what was being relied upon as corroboration of the appellant's involvement was the evidence of the threats spoken to by Rita McLeod. The jury were not directed that they would require, before they could convict the appellant, to accept as credible and reliable Rita McLeod's evidence in relation to these threats. If the jury had followed the trial judge's directions it would have been open to them to ask themselves if they accepted the evidence of George Kerr as to the appellant's presence at the house and that of Sheila McKirdy as to what he said and, if the answer to both of these questions was in the affirmative, to convict the appellant. They were not directed, as they should have been, that they could only find him guilty if they were also satisfied that he had made the threats spoken to by Rita McLeod. In these circumstances it was impossible to ascertain whether they did in fact apply their minds to what was described as the necessary additional piece of evidence. The evidence of George Kerr as to the appellant's presence at the scene being insufficient to corroborate that of Sheila McKirdy, there had been a misdirection by the trial judge which constituted a miscarriage of justice.
[15]The advocate depute, in opposing Mr. Bell's motion for leave to amend ground 4, drew our attention to the fact that the suggestion that there had been a misdirection by the trial judge on the issue of sufficiency was entirely new and was a matter which was not reflected in any of the existing grounds of appeal. The trial judge had been asked to report on what the evidence was, but it had never been brought to his attention that there was a suggestion of a misdirection and he had accordingly not had any opportunity to comment upon it.
[16]Although we decided to allow the amendment, the advocate depute's criticism is, in our view, wholly justified. More than five years have elapsed since the date of the trial without any hint that the judge's charge was to be challenged on the ground that there had been a misdirection on the issue of sufficiency of evidence. In any event, we consider that this amended ground is without merit. It was the evidence of the witness Sheila McKirdy which was the vital evidence against the appellant on this charge. The trial judge correctly describes it as the main evidence against him. He was therefore correct to give the direction which he did in relation to that evidence and, in particular, to tell the jury that Sheila McKirdy was a crucial witness because it was really she who set the scene for the appellant's involvement in the incident. He was also correct to point out, as he did, that the Crown relied on the evidence of Rita McLeod, and to explain that the evidence of George Kerr was another part of the Crown case against the appellant. It was not, in our view, necessary in the circumstances, and having regard to the nature of the evidence of these witnesses, for him to give any further more specific direction. It is misleading in our view to categorise George Kerr's evidence against the appellant as evidence of no more than mere presence at the locus. The notes of evidence disclose that what George Kerr said was that the appellant entered 8 Glencoats Drive through the back door at about 9 o'clock and was there for only about five minutes. It was as the appellant was coming down the stairs, having gone to an upstairs room to fetch some temgesics, that the hooded gunman entered, uninvited, and also through the back rather than the front door, and ran through the house to shoot Mark Rennie. The appellant's brief presence in the house thus coincided exactly with the arrival of the gunman. Moreover, as the trial judge tells us, the importance of this evidence for the prosecution lay in the fact that the appellant's defence was an alibi to the effect that he was at his mother's house when the deceased was shot. Having made it clear to the jury that the evidence of Sheila McKirdy was the important starting point of their deliberations, and that it is a fundamental principle that no person can be convicted of a crime unless there are at least two separate and independent sources of acceptable evidence pointing to his guilt, a more specific direction as to corroboration as suggested by Mr. Bell was, in our view, quite unnecessary in the circumstances. We accordingly refused the fourth ground of appeal.
The allegation of defective representation by the appellant's solicitor
[17]The first of the amended grounds of appeal is in the following terms: "The representation of the appellant by his solicitor, Mr. Dennis Coffield, was negligent and resulted in a miscarriage of justice." The grounds go on to specify under headings (a) to (g) the particular respects in which Mr. Coffield is said to have been negligent. Essentially, there are two matters complained of: firstly, that he advised the appellant not to lodge a special defence of incrimination against the Crown witness, George Kerr; and secondly, that, prior to the trial, he was acting for the said George Kerr and for the Crown witness, Sheila McKirdy, that he failed to disclose that fact to the appellant and that there was a conflict of interest between the appellant's interests and those of George Kerr and Sheila McKirdy.
[18]In accordance with the direction of the court at an earlier hearing we heard evidence in August 2001 from the following witnesses: (1) the appellant, (2) Mr. Herbert Kerrigan, Q.C., who represented the appellant at the trial, (3) Mr. Dennis Coffield, the appellant's solicitor, (4) George Kerr, the suggested incriminee, and (5) Janice Green who was, at the material time, Mr. Coffield's qualified assistant.
The evidence
(i)The appellant
[19]The essential aspects of the appellant's evidence, so far as relevant to this ground of appeal, can be summarised as follows. Following his arrest on 7 June 1996 the appellant asked for the services of Mr. Dennis Coffield who came to see him that afternoon and appeared with him at Paisley Sheriff Court on the following day, and also at full committal one week later. Mr. Coffield subsequently visited him at Greenock Prison. Having received information from other prisoners at Greenock that George Kerr was involved in the murder, the appellant said he decided that he should incriminate him and he told Mr. Coffield that that was what he wanted to do. According to the appellant, Mr. Coffield said to him "Leave it to me, I will go and see Kerr." That conversation was said to have taken place at Gateside Prison, Greenock on 29 July 1996. The appellant said that Mr. Coffield then came to see him some time later and told him he had spoken to George Kerr and that there was "no need for an incrimination". The witness said that he did not ask his solicitor for a reason for that advice.
[20]The appellant admitted that, during his trial, he was advised by his counsel, Mr. Kerrigan, Q.C. that he should incriminate, amongst others, George Kerr. He also admitted that on Monday 14 October 1996 he signed a document prepared by Mr. Kerrigan in which he confirmed that he was not prepared to accept the advice offered. According to the appellant, his reason for refusing to accept counsel's advice was "I just went with what Mr. Coffield said when he came up to see me. That was before the trial. Just stick with your alibi, everything is all right, just go with your alibi, never mind incrimination." The appellant said that right up until his trial he thought that "going with the alibi" was the best thing. But he now realised he should not have done so and should have gone instead for a defence of incrimination.
(ii)Mr. H. Kerrigan, Q.C.
[21]For reasons set out later in this opinion the evidence of Mr. Kerrigan is of particular significance to this appeal. That evidence was very clear and unambiguous in its terms and was not challenged in any material respect. Mr. Kerrigan said that he was instructed on 27 September 1996 to represent the appellant at his trial which started at the High Court in Glasgow on 2 October 1996 and finished on 18 October 1996. He said he consulted with the appellant prior to the trial. He drew to the appellant's attention the contents of the statement by George Kerr which had been lodged as a production by the Crown and from which it was clear to him that, if Mr. Kerr stood by his statement, his evidence would undoubtedly be a problem for the appellant. According to Mr. Kerrigan, he was repeatedly told by the appellant that George Kerr's evidence would not be a problem for him. He was never given any cogent reason as to why the appellant did not want to incriminate George Kerr and, in particular, he was never told by him that he had received advice from Mr. Coffield to that effect. The witness said that he was aware of a previous relationship between Mr. Coffield and George Kerr but that did not cause him any concern because his understanding was that that relationship was in the past and, in any event, it was not in his view relevant to his situation.
[22]Mr. Kerrigan explained that in the course of the trial he sought, and was granted, an adjournment from the Thursday (10 October) until the Tuesday (15 October) in order to have investigated, and to discuss with the appellant, some information that had come to his attention. He said that during the period of the adjournment he saw the appellant at Barlinnie on the Saturday, and again on the Monday, and advised him that he ought to incriminate not only George Kerr but also Sheila McKirdy and others. The appellant gave specific instructions that he did not wish a special defence of incrimination to be lodged; he wished to adhere to his defence of alibi. Mr. Kerrigan said that he decided to put his advice in relation to the lodging of a special defence of incrimination in writing and that he warned the appellant of the consequences of his actions in respect not only of the trial but also of any future appeal. He prepared a document which the appellant read and signed and in which he confirmed that senior counsel had explained the situation to him and in which he stated:
"I do not wish an incrimination to be lodged as advised. I fully appreciate the handicap this places on my defence and the added risk of conviction it creates. I also understand that by taking this action I forfeit the right to have the matter raised on appeal. I do however give the instruction that no action is to be taken, no incrimination lodged, no further list of witnesses to be lodged. I also ask counsel to remain acting for me."
(iii)Dennis Coffield
[23]The salient features of the evidence of Mr. Coffield, a solicitor in practice in Paisley, so far as relevant to this appeal are as follows. He was instructed to appear for the appellant when he was first arrested on the murder charge on 7 June 1996. He was also acting as solicitor for George Kerr in about May 1996 and recollected seeing him at Mill Street Police Office in Paisley after he had been arrested following his absconding from custody (31 May 1996). He denied that he had ever had any discussion with or advised George Kerr in connection with his alleged involvement in the murder of Mark Rennie. The only information he had ever got from George Kerr was in relation to his position as a witness, and what he said about that was that he had said nothing to the police and was saying nothing to him.
[24]Although he represented the appellant when he appeared on petition in connection with the murder and also acted for George Kerr when he was re-arrested after absconding, and thereafter visited both men in prison, he was unaware of any connection between the two until he received the Crown productions in the appellant's case in about July 1996. He then saw that George Kerr was listed as a witness and that he had apparently given a statement to the police. Mr. Coffield's position about that statement was "As far as I can remember there was not very much in it which implicated Mr. Gillespie but just the fact that it was there concerned me." He said that "an alarm bell rang in my head" and that he saw both the appellant and George Kerr in prison on 29 July 1996. He advised the appellant of the fact that George Kerr had given a statement and asked him for his instructions. He told him that he had to see George Kerr about his statement to clear the matter up and to make sure he was still to be treated as a defence witness. He said that he told the appellant at that stage that if Kerr was to be a threat to him he (the witness) would have to consider his position. When he went to see George Kerr it was his position that he had not given the police a statement and that he was not a prosecution witness and would not be treated as one.
[25]Mr. Coffield denied that the question of lodging a special defence of incrimination against George Kerr was ever discussed with the appellant at any stage. The appellant gave him clear instructions that George Kerr had to be treated as a defence witness and he proceeded on that basis. It was his position that the first time that he had any idea that George Kerr had some involvement in the murder was when he received a telephone call from his assistant, Janice Green, in the middle of the trial; the information came as a considerable shock to him.
[26]The witness said that he wrote to George Kerr on 17 September 1996 and the purpose of that letter was to put on paper what he had said to him a few days previously during a visit to him at Shotts Prison, namely, that he could not act for him any longer. The witness dismissed as wholly untruthful the allegation by the appellant that he had assured him that he had been to see George Kerr and that he had nothing to fear from him and that there was no need to incriminate him.
[27]So far as the crown witness, Sheila McKirdy, was concerned Mr. Coffield admitted that, prior to August 1996, he had acted as her solicitor; he had attended at the district court on her behalf around that time but he received no instructions from her and the case did not call in court. He did not know at that stage that she had any connection whatsoever with the murder charge.
[28]Mr. Coffield was not personally present in court at the appellant's trial and was represented by his assistant, Janice Green.
(iv)George Kerr
[29]This witness said that when he was arrested after absconding from custody he was interviewed by police officers regarding incidents that had occurred on the day of the murder. It was his evidence that he did discuss with Mr. Coffield his position in relation to the murder. He gave him information as to who might be involved and that included the appellant.
[30]The witness said that he was told by Mr. Coffield not to worry about what his evidence would be in respect of the appellant, but was given no reason for that advice. He agreed that he had received a letter from Mr. Coffield dated 17 September 1996 referring to a recent meeting and in which he indicated that the statement allegedly made by the witness to the police is such that he could not properly continue to act for him and give him the independent advice which he required. George Kerr admitted that he had signed an affidavit to the effect that, the second time he was seen in prison by Mr. Coffield, he was advised by him that he could not act for him any more as he was a witness in the case against the appellant.
(v)Janice Green
[31]This witness was Mr. Coffield's qualified assistant at the relevant time. She saw both the appellant and George Kerr in prison. She said that the appellant did not give her any information at any time which would justify a discussion about incriminating any other person. The appellant's position was that his defence was one of alibi and he proffered no information which she considered would have entitled her to advise him to incriminate George Kerr. This witness was present in court throughout the appellant's trial.
The Law
[32]We now turn to consider the law applicable to the issues raised in this appeal. The starting point of Mr. Bell's submissions was the right to a fair trial, which has always been a principle of the common law of Scotland and which is expressed in Article 6 of the European Convention on Human Rights now enshrined in the domestic law by virtue of the Human Rights Act 1998. The law in Scotland is "jealous of its reputation for doing justice and for ensuring that justice is seen to be done" (Bradford v. McLeod 1985 S.C.C.R. 379 per the Lord Justice Clerk (Ross) at p. 383). Reference was also made in this connection to Hogg v. Normand 1992 S.C.C.R. 26 where Lord Murray said (at p. 29):
"We are satisfied that the effect of these cases is that, even without any actual unfairness, if the circumstances complained of are such as to create in the mind of a reasonable man a suspicion that justice is not impartial, a conviction cannot stand."
[33]Mr. Bell submitted that the need for impartiality and lack of bias on the part of the judicial authority must apply equally to the solicitor. The complaint against the solicitor in the present case was that in view of the clear conflict of interest between the appellant and the Crown witnesses, who were also represented by him, he could not have been impartial and could not have given proper advice to the appellant. Reference was made to McIntosh v. H.M. Advocate 1997 S.C.C.R. 389 where the court held that, as the conduct of the defence had from an early stage been in the hands of counsel, there was no relevant basis for an appeal based on the solicitor's conduct and its effect. It was submitted that McIntosh was not authority for the proposition that the involvement of counsel relieves the solicitor from the responsibility of ensuring that an accused has a fair trial. Each case has to be considered on its own particular facts and the present case fell to be distinguished from McIntosh since senior counsel had not been involved from an early stage but had been instructed only a few days before the trial began.
[34]In response, the advocate depute submitted that the law applicable to the situation in which senior counsel has been instructed to represent an accused at a trial was clear, and was as set out by the Lord Justice General (Hope) in McIntosh at p. 395:
"From that point onwards the overall responsibility for the preparation and conduct of the defence lay with senior counsel. It was his responsibility to ensure that the appellant's instructions as to his defence had been obtained. It was his responsibility to give directions to the instructing solicitor about the preparations which were required so that the defence could be presented to the court."
[35]It being accepted that Mr. Kerrigan acted properly, obtained instructions and followed the instructions given, an appeal on the ground of miscarriage of justice could not be founded on an allegation that, at some earlier stage, there had been a suggestion of a special defence of incrimination; and that was particularly so since that very issue was raised by senior counsel and rejected in writing by the appellant.
[36]We do not consider that anything that was done in the course of the appellant's trial was in breach of the principle that justice must be seen to be done. That is undoubtedly a principle of great importance and is fundamental to the proper conduct of proceedings in the criminal courts. In this case it has not been suggested that what occurred in open court during the trial was anything other than fair, and there is no reason to doubt that an observer at the trial would have been satisfied that justice had been done and could be seen to have been done. What is complained of is advice allegedly given in private to the appellant, not by the solicitor who was present during the trial proceedings, but by her employer, who denies giving that advice. The principle that justice must be seen to be done does not apply to what is done outwith the public view (Russell v. H.M. Advocate 1991 S.C.C.R. 790 per the Lord Justice General (Hope) at p.795).
[37]The approach to be taken to cases in which there is an allegation of defective representation is defined in the case of Anderson v. H.M. Advocate 1996 S.C.C.R. 114. In that case the court observed that the conduct of the defence by the accused's counsel or solicitor will provide a ground of appeal only in narrowly defined circumstances. The Lord Justice General (Emslie) said (at pp. 131F-132A):
"It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred where the conduct was such that the accused's defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence which he wished to be put or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him."
[38]The following statement of the duty of counsel is to be found at p.128D-E:
"Counsel who represents an accused person in a criminal trial must first obtain instructions from his client about his intended defence. Just as counsel may not tender a plea of guilty unless he has instructions to do so on his client's behalf, so also he may not conduct a defence for a client who pleads not guilty which is contrary to the instructions which he has received as to the basic nature of it. His duty is to act on the instructions which he has been given. How he acts on those instructions is a matter for him, as he is entitled to exercise his own discretion and judgment in the conduct of the defence. What he cannot do is deprive his client of his intended defence by acting contrary to his instructions in this matter."
The decision
[39]As has already been observed, the allegation of defective representation in the present case focuses on two matters, namely, the solicitor's advice not to incriminate George Kerr, and, secondly, his failure to disclose to the appellant that he was also acting for the two Crown witnesses, George Kerr and Sheila McKirdy, which was said to have given rise to a conflict of interest and to have prevented him from giving unfettered and unbiased advice. So far as the first matter is concerned, we do not consider that the appellant has established the factual basis of his complaint. Mr. Bell urged us to accept as credible and reliable the appellant's evidence that he instructed his solicitor to incriminate George Kerr when he came to see him in prison towards the end of July 1996, and also that he was subsequently advised by him that there was no need for him to do so. Corroboration of the appellant's evidence as to what he had said to his solicitor and of Mr. Coffield's alleged response (that he would go and see George Kerr at Shotts Prison) could, it was asserted, be found in the fact that prison records reveal that Mr. Coffield did visit George Kerr at Shotts on the same day as he had visited the appellant. Mr. Coffield's evidence about George Kerr's statement to the effect that, as far as he could remember, there was "not very much in it which implicated Mr. Gillespie" was criticised by Mr. Bell as being quite unacceptable and was relied upon as demonstrating his lack of credibility.
[40]We are not prepared to accept the appellant's evidence on this crucial matter. We cannot say that we were in any way impressed with his demeanour as a witness: he seemed to us to be evasive, inconsistent and unreliable. We prefer the evidence of Mr. Coffield to the effect that the appellant did not at any stage discuss with him the lodging of a special defence of incrimination against George Kerr and never made any request to him that he should do so. We do not consider that Mr. Coffield's evidence to us as to his recollection, some five years after the event, of the contents of George Kerr's police statement is of particular significance in the context of this appeal. What is important is to examine the action taken by him at the time. His explanation for visiting George Kerr on 29 July was that he had by then seen a police statement apparently from him which gave him cause for concern. He explained that an alarm bell rang in his head at that time because the appellant had informed him that George Kerr had said nothing to the police; when he saw the statement he became worried about a possible conflict of interest. When he went to see him, George Kerr's position was that he had not given a police statement, and was not a prosecution witness and would not be treated as one. We find support for Mr. Coffield's evidence that he was never instructed by the appellant to lodge a special defence of incrimination, and that he never advised him against doing so, in the contents of a precognition taken from the appellant. That precognition is undated but it is clear from its contents that it post-dated the receipt of the police statement from George Kerr which was incriminatory of the appellant: the appellant says "I have read George Kerr's statement and do not believe that he gave it." That, it seems to us, provides clear support for Mr. Coffield's evidence that the appellant indicated to him that he did not believe that George Kerr would give a statement to the police which would be favourable to the prosecution and that he would in fact be a witness more favourable to the defence than the Crown. We observe in this connection that, as it turned out, that was entirely consistent with what subsequently happened: both at the trial and also before us George Kerr continued to deny that he had said anything to the police incriminatory of the appellant other than that he was in his house on the night in question.
[41]Mr. Bell further submitted that when George Kerr's statement became available the question of lodging a special defence of incrimination ought to have been considered by Mr. Coffield. He did not do so and accordingly failed to give appropriate advice. That failure, it was asserted, arose because he was not in a position to give unfettered and unbiased advice on account of the conflict between the appellant's interests and those of his other clients, George Kerr and Sheila McKirdy. In this connection we are not satisfied as a matter of fact from the evidence led before us that there was any information available at the relevant time to justify a responsible legal adviser in lodging a special defence of incrimination. The defence offered by the appellant to his solicitor when he first saw him at the time of his arrest on 7 June 1996 was a defence of alibi. Janice Green, who visited the appellant in prison on several occasions, said that he did not, at any stage, give her any information which would have justified a discussion about incriminating any other person. Mr. Coffield said in evidence - correctly in our view - that even if he had been faced with a statement taken by the police from George Kerr which appeared on the face of it to be incriminatory of the appellant, that fact alone would not have given him any basis for, in turn, incriminating George Kerr. In this connection, we observe - as the advocate depute pointed out - that there was never any suggestion that George Kerr was involved in the murder other than the fact that he was staying in the house occupied by Sheila McKirdy at the time that the gunman ran through. While it must have been clear from his statement that he was present in the house at the time, there was never any suggestion that either George Kerr or Sheila McKirdy had been aware that the house was about to be used by the gunman (Mrs. McKirdy was asked why she allowed the gunman to enter her house and her response to that was that he was not the kind of person to whom one said no). Nor was there any suggestion of complicity by George Kerr in the murder or that he was involved in it in any way. When the appellant himself was invited at the trial to say whether he thought George Kerr had had any involvement it appears that he declined to give any positive response.
[42]Since we are not satisfied that a suitable factual basis for doing so existed in the circumstances of this case, it follows that the appellant's solicitor cannot be criticised for failing to advise the appellant to lodge a special defence of incrimination. In any event, even if such a failure had been established it would not, in our view, have resulted in a miscarriage of justice because it cannot be said in the circumstances of this case that the appellant was deprived of the opportunity to present a special defence of incrimination or that his counsel acted contrary to his instructions (Anderson, supra). The appellant was given clear advice by senior counsel that he should consider lodging such a defence. That advice was rejected by him notwithstanding the fact that he was given time to consider the matter. We are quite satisfied that Mr. Kerrigan explained clearly and emphatically to the appellant that a failure to lodge a special defence of incrimination would tie his hands in the conduct of his defence, and also that that matter could not be raised in the course of any appeal. The appellant remained adamant that his defence should be presented on the basis of alibi, and his specific instructions as to the conduct of his trial and, in particular, that there should not be a special defence of incrimination were followed by Mr. Kerrigan. In that situation it seems to us that it is not now open to him to assert that his defence as instructed was not presented to the court. The appellant's refusal to accept the clear and unambiguous advice given to him on this matter, is, in our view, fatal to this ground of appeal.
[43]Further, ex hypothesi there was a possible conflict at any time prior to the trial between the appellant's interests and those of the two Crown witnesses for whom Mr. Coffield acted - as to which we express no view - that cannot be shown to have had any effect on the conduct of the trial. In the first place, there was no suggestion whatsoever in the evidence given to this court by senior counsel that the appellant's defence to the charge he faced was inadequately prepared or that the information he was given as counsel was in any way defective. From the point at which he was instructed - some five days prior to the trial - the overall responsibility for the preparation and conduct of the defence lay with senior counsel. In relation to the preparation and proposed presentation of the appellant's case, it was to counsel that the appellant was entitled to look for advice and guidance (McIntosh at p. 395B). Mr. Kerrigan stressed in evidence that there was no way that Mr. Coffield could have influenced him in any way in respect of the manner of conducting the appellant's defence. It is clear from the transcripts of the evidence of George Kerr and Sheila McKirdy that their credibility was vigorously challenged in cross-examination and also that counsel ensured that the fact that Kerr was, at the time of the murder, an abscondee from prison was elicited from him and thus made known to the jury. It is impossible, in our view, to find it established that the conduct of the appellant's defence was in any way prejudiced by any act, or failure to act, on the part of Mr. Coffield.
[44]In conclusion, it seems to us to be important to stress that the right to a fair trial should not be viewed as involving a right to a retrial simply because things might have been done differently by the appellant's counsel or his solicitor (Anderson at page 123E). The appellant said, in the course of his evidence to us, "if I was going through it again I would definitely go for incrimination" and it appears that what he now seeks is an opportunity to do just that. But that is something to which he is not, in the circumstances, entitled.
[45]It follows from what had been said that this appeal is refused.