Foster carer’s sexual assault conviction quashed following ‘defective representation’ appeal

The Appeal Court of the High Court of Justiciary upheld the “defective representation” appeal and ruled that there had been a “miscarriage of justice” after hearing that the solicitor advocate instructed by the appellant’s solicitor to represent him at the trial failed to lead material evidence that the appellant and his family adhered to a “strict protocol” which meant that the appellant would not be left alone with either child.

Lord Menzies, Lord Brodie and Lord Drummond Young heard that the appellant “BK” was sentenced to a total of three years’ imprisonment after being convicted in October 2015 following a trial at Glasgow Sheriff Court of two charges of lewd, indecent and libidinous practices and behaviour and one of sexual assault against two sisters, SA and BJA, who were placed with the appellant and his wife.

Defective representation

However, he appealed against conviction and sentence on the ground that his previous representatives failed to properly prepare his defence by failing to follow his “specific instructions” to pursue a request made to the Crown to disclose the two complainers’ medical and social work records and social work records for the appellant and his wife in respect of their work as foster carers for the complainers.

It was argued that the records ought to have been recovered by the representatives with a view to obtaining evidence that could be used at the trial to undermine the Crown case and that the failure to obtain relevant records meant that various relevant factual matters were not confirmed before the jury.

The solicitor advocate instructed by his solicitor to represent him at the trial failed to lead material evidence in support of his defence, namely that the appellant and his family adhered to a protocol when providing foster care to children where concerns had been identified that “false accusations” might be made.

Strict protocol

The appellant, 62, and his wife had been registered foster carers for many years, and had looked after more than 30 children before SA and BJA came to live with them.

His position with regard to the allegations contained in the charges was that nothing of the kind ever happened.

The events alleged could not have occurred as the household was always busy with people going in and out of rooms.

During the time that SA and BJA were living in the appellant’s house, three of their four children were also living at home, and on occasions there was another foster child staying with them.

The room in which the events were said to have occurred was the back living room, the door to which was never closed as the family was always coming in and out of the room or passing through it to the kitchen.

The appellant and his wife also had a rule whereby the appellant was never alone in a room with either of the complainers – if one of the complainers left the room, her sister had to do so as well.

The appellant never went into the complainers’ bedroom, and was never alone in the company of one girl without the other girl or another family member being present.

The appellant and his wife had been advised to adopt such a practice, having attended a course for foster carers organised by social services, to protect them against the risk of allegations of harm towards the children.

These precautions were “strictly enforced” and rendered the sort of incidents alleged in the charges “impossible”.

Unfair trial

It was argued that the social work records should have been obtained by those representing the appellant to show that the appellant and his wife had concerns about SA and BJA, that they had discussed these concerns with the social work department, and that mechanisms were in place to address these concerns.

The defence at trial would have been “significantly reinforced” by this evidence, at least to the extent of creating a “reasonable doubt”.

Counsel submitted that the appellant had told his solicitor advocate “RM” about the existence of the protocol– it was a “fundamental part” of his defence – but it was not placed before the court.

This was not simply a tactical decision, but amounted to a failure to present the defence that the accused had instructed to be presented, which resulted in the appellant “not receiving a fair trial”.

Miscarriage of justice

Delivering the opinion of the court, Lord Menzies said: “The social work records recovered after the trial provide support for the claim that concerns about the children’s behaviour were raised promptly by the appellant and his wife, and that steps were explained to them and taken by them to protect them from unfounded allegations.

“On the basis of the evidence before us we consider that RM was instructed by the appellant to present this line of defence, and that the appellant has been deprived of his right to a fair trial by RM’s failure to present it. This was not simply a judgement by RM as to the manner in which that defence was presented, but a failure to present it at all.

“The records, and the evidence of an appropriate witness from the social work department, would have provided independent support for the assertion that there were rules in place which would have rendered it improbable that incidents such as those narrated in the indictment occurred.”

He added: “It was the responsibility of the appellant’s legal representatives to carry out adequate investigations and preparations before the trial to see that his defence was properly presented at trial. It does not appear to us that without more detailed precognitions as to the rules enforced in the household, and without a properly argued attempt to persuade the court to order disclosure of the social work records, the appellant’s defence was properly investigated and prepared.

“We consider that the tests set out in paragraph of Burzala v HM Advocate, quoted above, have been met in the present case. The conduct of the defence has deprived the appellant of his right to a fair trial, and there has accordingly been a miscarriage of justice. We shall allow this appeal and quash the appellant’s conviction.”