Prisoner’s ‘defective representation’ petition refused by Outer House

Paul Kelly was convicted of six charges of sexually abusing three children and one charge of assault, all occurring between 1981 and 1983 at a school in Fife. He was sentenced to a cumulative period of 10 years’ imprisonment. Leave to appeal against the convictions had previously been refused.

The petition was heard by Lord Arthurson. The petitioner was represented by Bain QC and the respondent by Pirie, advocate.

Important exculpatory testimony

The sole ground of review advanced in the petitioner’s application to the SCCRC was that of defective representation. In a Statement of Reasons issued on 28 February 2020, the respondents declined to make a reference on this ground, as they were of the view that the petitioner had not suffered a miscarriage of justice. This position did not change on a request for review of the decision.

Senior counsel for the petitioner submitted that he was not consulted by his trial senior counsel and defence agent in relation to defence witnesses who would or would not be called on his behalf at the trial, despite having supplied them with an extensive list of potential defence witnesses and paying £10,000 to meet the costs of their travel and accommodation. In not being consulted about the calling of defence witnesses, his counsel had therefore not properly put his defence forward to the jury.

It was submitted that the evidence of one potential witness in particular, SJ, would have been of great assistance to the defence, particularly in bolstering support for the evidence of another witness who was led at trial. Another potential witness, RD, would also have been able to provide support for the evidence led at trial, but the petitioner’s trial agents had failed to trace him. The petitioner later obtained a home address for him through a local authority, but nonetheless, he was not called.

Counsel for the petitioner further submitted that the cumulative effect of these failures on the part of his trial counsel and agent had resulted in important exculpatory testimony not being led and his defence not being properly presented to the jury. His instructions to those representing him at the trial had been disregarded. These failures had resulted in a miscarriage of justice.

The respondents had rejected the petitioner’s arguments on the grounds that the decisions complained of fell within the reasonable exercise of counsel’s discretion. It was submitted that there was no factual basis for this conclusion, and that no reasonable decision maker would have reached it.

In response to the petition, counsel for the respondents submitted that the SCCRC had made a lawful response to the material before them. Reasonableness could only be assessed on the basis of the material that the decision maker had available to it at the time that it made its decision, and the decision was within the reasonable range of responses to the facts before them.

Elephant trap

In his opinion, Lord Arthurson began: “The way in which [a] defence is conducted is a matter for the professional judgement of counsel and criticism of strategic or tactical decisions as to how that defence should be presented will not be sufficient to support a defective representation appeal if these decisions were reasonably and responsibly made by counsel in accordance with his or her professional judgement.”

On the arguments made in this case, he said: “Senior counsel’s submission in the present case amounted to a contention that if those representing an accused at trial had received funding to secure the attendance of witnesses and that the accused had indicated an express wish that witnesses X and/or Y be led as part of the defence case, then counsel at the trial had in effect no right to decline to lead such a witness whom she or he was expressly instructed or expected to lead.”

Criticising this approach, he continued: “This is the very elephant trap identified by the court in [Hughes v Dyer (2010)], in which the Court made crystal clear that such a premise or contention cannot as such form the basis of a claim for defective representation.”

Holding that the correct question was whether the petitioner’s line of defence was fully laid before the court, Lord Arthurson said: “The question as to whether the line of defence was presented to the jury is intrinsically connected to the fundamental issue at large before the respondents within their purview as the specialist tribunal upon which Parliament has conferred a particular review role within the statutory scheme set out in terms of the [Criminal Procedure (Scotland) Act 1995].”

He continued: “The respondents have reached clear conclusions on the key question of miscarriage of justice, applying the correct test in the context of a defective representation claim such as this, and given full and cogent reasons in respect of the material available in the review exercise before them.”

Lord Arthurson concluded: “What this amounts to is really a disagreement, albeit as it was presented a profound one, which has been characterised in the petition, erroneously in my opinion, as an error of law. The petitioner was in this way asking this court, which had not heard the evidence, to take in hindsight a view about the weight that certain evidence which was not led would have carried with the jury at the trial.”

For these reasons, the petition was refused.