Man who murdered wife loses ‘defective representation’ appeal but judges call for change in solicitor advocate instruction rules
The Criminal Appeal Court has “very strongly” suggested that consideration should be given to changing the rules on the instruction of solicitor advocates, in disposing of an appeal claiming “defective representation”.
In refusing an appeal against conviction by Ahmad Yazdanparast, who was found guilty of murdering his wife by pouring petrol over her and igniting it, Lady Dorrian , Lord Bracadale and Lord Drummond Young observed that the current rules were “inadequate” to ensure that accused persons facing the most serious charges are represented by suitably experienced lawyers and that their defence may be “objectively conducted, free from any risk created by conflicting interests”.
The three grounds of appeal were defective representation in the preparation for the trial, defective representation in the conduct of the trial, and defective representation that his ability to select appropriate representation was restricted.
It was submitted that those acting for the appellant failed adequately to investigate his state of mind prior to trial - both in relation to his fitness for trial and his fitness at the time of the offence - but this ground of appeal was dismissed as there was no suggestion in the reports obtained prior to trial that the accused was suffering from a mental illness of personality disorder, and “no material” before the court to support a plea of “diminished responsibility”.
Delivering the opinion of the court, Lady Dorrian said: “In light of these circumstances it cannot be said that the mental state of the appellant was not fully and properly addressed and considered prior to trial.”
She added: “In a situation such as this, before the court could be satisfied that the appellant’s defence was not put before the jury, it would require to have material from which it could conclude that there was such a defence available. Without such material it would be impossible for the court to conclude that there had been a miscarriage of justice.
“The appellant’s position was that of accident/self-defence, and a defence of those lines was fully advanced during the course of the trial. It is conjecture to suggest that there might have been the possibility for another line to be advanced. An appeal on such a basis cannot succeed.”
The second ground of appeal related to the leading of evidence that the appellant had a previous conviction for assaulting his wife. The appellant argued that his instructions were not sought prior to the eliciting of this evidence and his affidavit alleged that doing so was “directly contrary to my instruction”, but the judges said there was no merit in this complaint.
And given that both substantive grounds had failed, the claim of defective representation concerning the restriction in his ability to select appropriate representation could not be sustained, as that could only succeed as an “adjunct” to a successful appeal based on defective representation as to the merits of a case.
However, the judges considered it appropriate to comment on the issue in view of the previous cases of Woodside and Addison, which also concerned representation by solicitor advocates - the appeal court having “repeatedly emphasised the importance of a free and informed choice” being made by someone facing serious charges, particularly the most serious charge of murder.
“We have real concerns in this case about whether this obligation was properly met,” Lady Dorrian said.
The court heard that on his arrest the accused had initially consulted solicitor George Pollock, who had been representing him in divorce proceedings, who recommended the firm of Belmonte & Co to act on his behalf.
At his trial the appellant was represented by solicitor advocate Mr Belmonte, assisted by Mr Tait, a solicitor advocate and partner in the firm of Capital Defence Lawyers - both of whom were instructed by Mr Mannifield, an associate in Belmonte & Co.
The judges were critical the appellant’s representatives’ “cavalier” use of the term “counsel” in relation to solicitor advocates and of “senior counsel” in relation to senior solicitor advocate, the latter of which in fact refers to Queen’s Counsel.
“If the instructing solicitor is himself confused as to the nature and status of these respective roles, how much greater scope for confusion is there on the part of an accused person?” Lady Dorrian noted.
“The terms of the responses as a whole give us grave reason to doubt whether full and adequate information on the issue of representation was in fact given to the appellant. The court has made it clear that a mere recitation of the options will not suffice, particularly in the case where, as here, there is a conflict of interest in that one of the solicitor advocates instructed is a senior member of the firm in which the solicitor is employed.
“The difficulties which might be faced by someone in such a position ‘instructing’ his senior partner are obvious,” she added.
Mr Belmonte stated that in cases where he is instructed the Law Society of Scotland regulations were “adhered to” and a “Chinese walls” policy operated with the instructing solicitor to avoid a conflict of interest, but the judges were “not clear” what he meant by thus.
Lady Dorrian continued: “Whatever it is intended to mean, the principal difficulty remains: it is nowhere indicated that robust procedures are in place to enable the instructing solicitor to carry out his job entirely independently and without being subjected even to indirect influence which may arise from the nature of the relationship between them.”
She concluded: “The issue is not one of ‘Chinese walls’ as Mr Belmonte put it; the issue is whether a system is in place to ensure that an in-house arrangement retains all the degree of independence which would be present in an arm’s length instruction…
“It is perhaps surprising that the terms of rule 1(2) of the Rules for the Conduct of Solicitor Advocates 2002 have not been reconsidered, standing the clear criticism of its operation which was made in both Woodside andAddison. As was graphically explained in Woodside, the current rules do nothing to safeguard an accused from being defended by one whose reach exceeds his grasp.
“Most significantly, the rules countenance a situation where a manifest conflict of interest arises, without ensuring that any such conflict is addressed and dealt with in a way which secures the true and informed consent of the accused. There is no indication in the present case that any real consideration was given to the question of informed consent.
“In cases such as the present, it is clearly in the interests of justice that those against whom the most serious charges are levelled are provided with representation at a commensurate level of experience and ability, so that his defence may be objectively conducted, free from any risk created by conflicting interests. That the issue continues to surface in this court suggests very strongly that the current rules are inadequate to achieve this end, and that consideration should be given to their amendment.”
© Scottish Legal News Ltd 2019