EGAN v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British citizen born in 1961 and resident in Strathkelvin. He is represented before the Court by Matthew Brown, solicitors practising in Irvine, Scotland. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 February 1995, a complaint was issued by the Procurator Fiscal for Glasgow charging the applicant with two contraventions of section 5(3)(c) and section 5(5) of the Data Protection Act 1984 and two breaches of the peace in that he conducted himself in a disorderly manner persistently staring at five young girls. On 24 February 1995 the applicant pleaded not guilty at a pleading diet at Glasgow Sheriff Court. He was represented by Messrs D. H. & Co, solicitors. The trial took place at Glasgow Sheriff Court on 11 to 12 July 1995, 2 August 1995 and 10 October 1995. The applicant was represented at the trial by Mr G., Advocate, engaged by the applicant’s solicitors. On 10 October 1995 the applicant was convicted in Glasgow Sheriff Court on all four charges, sentence being deferred for social inquiry and community service reports. On 20 May 1996, the applicant appeared before the Sheriff for sentence. He was now represented by Mr M. of L. & Co., Solicitors. The Sheriff fined the applicant £100 on each of the breaches of the peace and merely admonished the applicant on the statutory charges. The applicant, who claimed that his representation at the trial was so defective that he was not effectively represented, changed his representatives to appeal to the High Court of Justiciary against conviction and sentence. On 24 May 1996 the applicant’s solicitor applied for an extension of the time in which to apply for a stated case to the High Court of Justiciary. On 4 June 1996 the High Court of Justiciary granted the applicant an extension in time to apply for a stated case. On 7 June 1996, the application was submitted by the applicant's solicitor, appealing against both conviction and sentence. In his application for the stated case, the applicant claimed that he suffered a miscarriage of justice under the Criminal Procedure (Scotland) Act 1995, section 175(2)(d) and section 175(5), in that he was denied a fair trial as a result of defective representation at the trial. He made several allegations against his defence counsel, inter alia, that he had not presented the defence, had acted contrary to his instructions, has failed to challenge Crown evidence properly in cross-examination and had pressured him into not giving evidence. On 26 July 1996 a hearing took place before the Sheriff to agree the draft stated case. On 30 July 1996 the stated case, signed by the Sheriff, was sent to the parties to the appeal. On 3 September 1996 the applicant was granted leave to appeal by a judge of the High Court of Justiciary. This decision was notified to the applicant’s solicitor on 6 September 1996. On 17 December 1996 the applicant’s case was put down to appear on the appeal roll of 28 January 1997 and the applicant’s solicitor advised accordingly. The applicant's solicitor contacted the applicant on 6 January 1997, informing him that the appeal hearing was fixed for 28 January 1997. On 24 January 1997 the applicant’s solicitor informed him that a consultation with counsel had been fixed for 27 January 1997. This consultation lasted twenty minutes. The applicant states that counsel informed him that she would ask for an adjournment as the views of the previous legal representatives had not yet been sought. During the appeal hearing on 28 January 1997, the High Court upheld the appeal made by the applicant against the convictions under the Data Protection Act 1984. As regards the applicant's appeal against his convictions for breaches of the peace, counsel for the applicant sought an adjournment of the appeal on the basis that she had only very recently been instructed to represent the applicant and that she had advised him that certain information and various statements had to be obtained in the light of the requirements laid down by the court in Anderson v. HM Advocate (1996 J.C. 29, SCCR 114). This would have involved an affidavit from the applicant and any supporting witness setting out the full details of allegations and a response to complaints from the original agent (solicitor) and counsel. According to the High Court judgment, counsel stated that no necessary steps had been taken and that she could not offer the court an explanation as to why none of the investigation or preparation had been done. The High Court refused to adjourn the appeal stating that it must have been obvious for many months to the applicant and his present advisers that steps had to be taken in order to prepare the appeal to be advanced on the chosen grounds. It noted that the signed stated case was dispatched to the parties on 30 July 1996, that leave to appeal against conviction was granted on 3 September 1996 and intimation thereof was sent to the applicant's solicitor on 6 September 1996. It was therefore entirely unacceptable for the applicant to come forward at this late stage and, without explanation as to why none of the preparations required by the Anderson precedent had been done other than to instruct counsel on the eve of the appeal and seek a postponement of the appeal hearing in order to allow the necessary steps to be taken. It commented that while postponements had to be granted when adequate cause was shown and the failure to act timeously was explained, no explanation had been made in this case. Moreover, the High Court stressed that it was important to avoid any unnecessary delay in the proceedings given that the events giving rise to the charge occurred in September and October 1994, and the principal Crown witnesses were then young girls in their early teens. It noted that there had already been a delay in that the time had been extended to allow an application for a stated case to be lodged some eight months late after the conclusion of the applicant's trial. Further, had the appeal been successful, the court would have had to grant authority to bring a new prosecution and the trial resulting from the new prosecution would have been unlikely to take place before the lapse of two years since the commencement of the original trial in July 1995. The High Court concluded that it would sanction no further delay and dismissed the application. In her note of 17 March 1997, the applicant’s counsel recalled that the court had refused an adjournment as there had been no affidavit from the applicant detailing the failures alleged and no statements or approach had been made to his previous representatives. She had informed the court that she had not consulted with the applicant and solicitor until the day before the appeal and the fault for the late consultation rested with her due to her court commitments. She could not offer any explanation for the absence of affidavits from the applicant and his relatives but informed the court that she had instructed that these be prepared. Once they had been obtained, the applicant’s solicitor or the Clerk could have proceeded to contact the prior agents for their response. In her further note of 25 June 1998, the applicant’s counsel stated that no affidavits had been prepared when she met the applicant and his solicitor, Mr M, the day before the appeal hearing. She had therefore advised that she would have to seek an adjournment. She did not recall if any explanation had been given to her for the failure to produce the information other than seeking the opinion of counsel as to how to proceed with the appeal. In his letter of 11 August 1998, Mr M., the applicant’s solicitor at the appeal, stated that as soon as he had been notified of the date of the appeal he had instructed his Edinburgh agents to instruct counsel and sought a consultation. At the consultation he was told by counsel that further information was required and that she would seek an adjournment. She indicated to him and the applicant that they would not be required to attend the appeal hearing. He took the view that it was the role of the Clerk of the Court to seek the response of the applicant’s previous representatives and that there had been no explanation from the High Court as to the failure of the Clerk of the Court to do so in the applicant’s case. The applicant received legal aid for his representation at trial and on appeal. B. Relevant domestic law and practice Defective representation as a ground of appeal In the case of Anderson v. HM Advocate 1996 SCCR 114, decided on 1 December 1995, the High Court of Justiciary decided that, in certain circumstances, the conduct of the defence by the accused’s counsel or his solicitor could be a ground of appeal. The conduct must have been such as to have resulted in a miscarriage of justice in that it deprived the accused of his right to a fair trial by not presenting his defence to the court. The accused might have been deprived of the opportunity to present his defence because his counsel or solicitor acted contrary to his instructions for example. The court noted that in such cases questions of fact might arise as to the nature and conduct of the defence and the court might require to hear evidence. Before it exercised this power, it had first to be satisfied that the complaint was of a kind likely to satisfy the test for a miscarriage of justice. It set out the preparation which it expected to be undertaken: “difficult questions of professional practice may arise where allegations of this kind are made against counsel or a solicitor. It is essential therefore that those against whom the allegations are made are given a fair opportunity to respond in writing to these allegations before the court hears the appeal. The advocate or solicitor may, if he feels able to do so, provide a statement to the solicitor acting for the appellant to assist him and counsel in the drafting of the grounds of appeal. But he is under no obligation to provide any such statement. He may, if he prefers to do this, wait until the appeal is lodged and then lodge his statement with the Clerk of Justiciary. In all cases where a complaint is made against counsel or the solicitor who represented an appellant at his trial for which leave to appeal has been granted, the Clerk of Justiciary will advise counsel or solicitor of this fact, and will provide him with a copy of the ground of appeal so that he may respond to the allegations if he has not already done so. Once again we emphasise that he is under no obligation to respond at this stage to the allegation. But the court is likely to find it helpful to know whether the complaint is disputed and, if so, on what grounds, before it reaches a decision as to whether an inquiry into the facts will be necessary to decide the appeal.” Courts’ power to adjourn cases Unless otherwise expressly provided by statute, the courts have an inherent common law power to adjourn cases where it is considered necessary in the interests of justice and conversely to refuse to do so, also in the interests of justice. In general the courts will grant an adjournment that is requested by the defence if it is necessary to allow the defence to prepare their case (MacKellar v. Dickson (1898) 2 Adam 504 and Ferguson v. McNab (1884) 5 Couper 471). The courts are less amenable to granting an adjournment on this basis if it is apparent that the accused or his agents had sufficient time and were in a position to carry out the necessary preparation for the trial but simply failed to do so (eg. Nash v. Normand 1996 SCCR 196).