Law Report: The ineptitude of counsel renders conviction unsafe: Regina v Clinton - Court of Appeal (Criminal Division) (Lord Justice Steyn, Mr Justice Garland and Mr Justice Rougier), 9 March 1993

Where defence counsel in a criminal trial has made decisions in good faith after proper consideration of the competing arguments and, where appropriate, after due discussion with the defendant, an appeal against conviction based on criticisms of defence counsel's conduct of the trial will not succeed since the verdict is not unsafe or unsatisfactory within section 2(i)(a) of the Criminal Appeal Act 1968. Where, exceptionally, it is shown that counsel's decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, the conviction may be set aside as unsafe and unsatisfactory.

The Court of Appeal (Criminal Division) gave reasons for allowing on 24 February an appeal by Dean Clinton against his conviction of kidnapping and indecent assault.

The victim of an abduction and indecent assault lasting an hour and a quarter described her attacker as 5ft 8in tall, with acne marks and no tattoos or scars.

Fourteen months after the incident, the victim saw the appellant and allegedly recognised him as her attacker.

During his trial, she gave evidence that her assailant's face had been pitted and pock-marked and he was not wearing gloves. The officer in charge stated that the appellant was 5ft 10in and had pock marks. The appellant was not advised to give evidence and no evidence was called on his behalf.

John F Maxwell, who did not appear below (Registrar of Criminal Appeals) for the appellant; Christopher Hodson (CPS, West Midlands) for the Crown.

MR JUSTICE ROUGIER, giving the judgment of the court, said that the reality of the appellant's appearance and physical characteristics differed from the descriptions given in a number of important respects.

The appellant was 6ft in height. He had for many years before the incident tattoos on the knuckles of all the fingers of both hands and a scar on his right hand. He had never had any pock marks.

The appellant should have been advised in the strongest possible terms that it was highly desirable that he should give evidence in order to underline those discrepancies.

His counsel at trial accepted that he did nothing to try and wean the appellant from his reluctance to testify. That, combined with the absence of any supporting evidence on the appellant's behalf, must be stigmatised as a grave error.

The nature of the prosecution evidence rendered the arguments in favour of direct rebuttal overwhelming. At the very least, evidence from others, such as members of his family, who could have dealt with those matters, should have been made available.

The correctness or otherwise of the identifying features recited by the complainant caused concern to the jury who sent a note to the judge after retiring, raising questions which the judge was unable to answer. It was a distinct possibility that had the true position been revealed to the jury, it might have tipped the balance in the appellant's favour.

The appellant's failure to give evidence had another unfortunate result connected with alleged remarks he made at the police station. His version was never put to the jury. The prosecution evidence was not even challenged.

A summary of police interviews, agreed by counsel who had advised the appellant before trial, gave a misleading picture, unfair to the appellant. The appellant had a far from feeble positive case which was never presented to the jury.

The circumstances in which a court was entitled to overset a jury's verdict when the grounds consisted wholly or substantially of criticisms of defence counsel's conduct of the trial must of necessity be extremely rare.

The correct approach, where the conduct of counsel was to be made the basis of a successful appeal, was to bring the case within section 2(i)(a) of the Criminal Appeal Act 1968 which provided that an appeal should be allowed if the conviction should be set aside because under all the circumstances of the case it was unsafe or unsatisfactory. To speak in terms of material irregularity in such cases was likely to be misleading.

Cases where the conduct of counsel could afford a basis for appeal must be regarded as wholly exceptional. During the course of any criminal trial, counsel for the defence was called upon to make a number of tactical decisions, not the least of which was whether or not to call his client to give evidence.

Provided counsel had properly discussed the case with his client, the court would not permit the defendant to have another opportunity to run an alternative defence which had not been run at his trial.

If the court had any lurking doubt that the appellant might have suffered some injustice as the result of flagrantly incompetent advocacy by his advocate, then it would quash the conviction. Those principles did not derogate from the plain wording of section 2(i)(a). It was basically to that wording itself that the court must look.

Where counsel had made decisions in good faith after proper consideration of competing arguments and, where appropriate, after due discussion with his client, such decisions could not possibly be said to render a subsequent verdict unsafe or unsatisfactory. That particularly applied to the decision as to whether or not to call the defendant.

Conversely, and exceptionally, where it was shown that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it might be open to an appellant court to set aside the verdict by reason of the terms of section 2(i)(a).

It was probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the subsection.

The criticisms outlined, which were not confined to counsel who conducted the case at the trial but extended to those who advised the appellant at an earlier stage, had rendered the conviction both unsafe and unsatisfactory.

Not all the criticism could be laid entirely at the door of the defence. The police had had in their possession for many years evidence as to the appellant's correct height and to the existence of his tattoo marks. The blame for failing to put those relevant facts before the jury must therefore be shared. Furthermore, the summary of interviews, although checked by the defence, was prepared solely by the prosecution.

The conviction must be quashed.

Ying Hui Tan, Barrister