Armed robber fails in ‘defective representation’ appeal

Peter Boath, who was sentenced to nine years imprisonment for attacking an employee and robbing £200 from the till in the Subway sandwich shop on Leith Walk in Edinburgh in March 2015, and assaulting a customer in the store, argued that a “miscarriage of justice” had occurred.

However, the Criminal Appeal Court refused the appeal against conviction after ruling that the appellant failed to persuade the judges that his defence had not been presented and that his counsel had disregarded his instructions or conducted the defence in a way which no reasonable counsel could reasonably have done.

But an appeal against sentence, which was based on a contention that the advocate depute “misled” the trial judge by stating that the appellant had a previous conviction for assaulting and robbing an elderly woman, was granted and his sentence was reduced to seven years.

The Lord Justice General, Lord Carloway, sitting with Lady Paton and Lord Menzies, heard that the appellant was convicted of two charges following a trial at the High Court in Edinburgh in September 2015.

There had originally been a co-accused, Alexander Johnston, but he had pled guilty to one of the charges at a preliminary hearing and was sentenced to five years and seven months imprisonment, discounted from eight years for the early plea.

The appellant appealed on the ground of defective representation in the preparation for trial, arguing that his solicitors and counsel failed to carry out the necessary pre-trial investigations, including the commissioning of reports on CCTV and DNA evidence.

The first ground was that there was “no eyewitness identification evidence” of the appellant in the shop or running down Leith Walk.

The appellant maintained that he instructed his legal representatives to have an analysis of CCTV images from Subway and a nearby Tesco carried out because this would have established that the male wearing a hat in the Tesco CCTV (the accused) was not the robber.

But the appellant’s trial agents reported that the images from Tesco “clearly showed” the appellant entering the shop and disposing of the hat and the knife.

The appellant’s second ground was that he had wanted his legal representatives to obtain an independent DNA report, but this was not done despite his express instructions.

However, his solicitors pointed out that the appellant’s DNA was found on the knife and the hat, and he had accepted that the knife and hat were his and that there would thus have been “no point” in having the analysis redone or checked.

The appellant also stated that he had wished to call the co-accused as a witness as he understood that Mr Johnston would say that the appellant was not the other robber, but he complained that no steps were taken to precognosce the co-accused.

However, counsel advised that the appellant’s agent had been told by the co-accused’s solicitor that the Mr Johnston would not co-operate with any precognition and would incriminate the appellant.

The appellant further submitted that he sought to dispense with the services of his trial representatives as he believed his instructions were not being followed, and that he was asked to sign a disclaimer but refused to do, while his lawyers said that he had not been asked to sign a disclaimer, but a confirmation of his decision not to give evidence or call any witnesses.

His agents also described his behaviour during the trial as “deplorable”, forming the view that his intention had been to “thwart the trial process”, while counsel also said he had been told by his instructing agents that the appellant had threatened to assault him.

Refusing the appeal, the judges observed that in Grant v HM Advocate 2006 JC 2005, it was made clear by the Lord Justice Clerk (Gill) that a defective representation ground cannot be based simply upon a criticism of strategic and tactical decisions reasonably and responsibly made and that that there required to be objective support for the allegations advanced.

Delivering the opinion of the court, the Lord Justice general said: “In this case there was and is no objective support for the appellant’s allegations. There is no material upon which to have based the assertion that CCTV analysis would have established that the facial features of the man in the images from Subway were different from those of the man in the Tesco CCTV. Trial counsel has explained that he did not focus upon the images for tactical reasons; notably the danger of highlighting the ‘glaring similarities’ of the clothing of the robber and the clothing of the appellant.

“Similar considerations apply to the assertion that there ought to have been an independent DNA analysis. There is no basis upon which it can be said that any further analysis would have differed from that produced by the Crown. The appellant accepted, in discussions with his legal representatives, that the hat found in Tesco, with the stocking within it, had belonged to him.”

“The decision not to call the co-accused was a tactical one which was fully justified on the basis that, not only would he not be precognosced, he would, if called, incriminate the appellant,” Lord Carloway added.

However, the appeal against sentence was allowed after it emerged that the advocate depute, on moving for sentence immediately after the verdict had been returned, had told the court that in 2005 the appellant had received a sentence of four years for theft by housebreaking in which he had assaulted a 90-year old homeowner.

In fact, the conviction was one in the High Court in 2007 and was only for theft by housebreaking, the former libel in the indictment of violence having been deleted.

“For these reasons,” the Lord Justice General said, “this court requires to review the sentence imposed on the appellant in light of what can only be described as most unfortunate circumstances.”

“Nevertheless,” the appeal judges concluded, “this was an armed robbery against a background of offending. The court has also had regard to the sentence imposed on the co-accused. It will, nevertheless, substitute a sentence of seven years imprisonment.”