Tuesday Law Report: Challenge depended on showing significant fault

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The Independent Online
16 November 1999

Regina v Ullah

Court of Appeal, Criminal Division (Lord Justice Rose, Vice-President, Mr Justice Brian Smedley and Mr Justice Penry-Davey) 14 October 1999

ONLY SIGNIFICANT fault on the part of trial counsel or solicitors could found a challenge, based on their conduct, to the safety of the jury's verdict in a criminal trial.

The Court of Appeal allowed the appeal of Naveed Ullah against his conviction of indecent assault on a female.

After the complainant had given evidence at the the appellant's trial, the defence had obtained tape recordings of telephone conversations between the complainant and other witnesses who were still to give evidence, which could have affected the jury's view of the truth of the complainant's evidence. The appellant's counsel decided not to use the tape recordings.

The appellant was convicted, and appealed against his conviction on the ground that trial counsel's failure to rely on the tape recordings had rendered the conviction unsafe.

Patrick Curran QC and John Maxwell (who did not appear below) (Tom Burke & Co, Manchester); Howard Baisden (Crown Prosecution Service) for the Crown.

Lord Justice Rose VP said that counsel's initial submission on behalf of the appellant had been that, even in a case where trial counsel's conduct was criticised, the first and sole question to be addressed on appeal was whether the conviction was to be regarded as unsafe. He had relied on the judgment in R v Kamar (unreported, 31 March 1999).

That case did not, however, afford sustenance for that submission. It was an unusual case in which defence counsel had admitted that he had been in error in not seeking a ruling from the trial judge on the defendant's character and in failing to invite the judge to give a good character direction. Prosecuting counsel, on the appeal, had conceded that the absence of such a direction rendered the verdict unsafe, and the court had, accordingly, quashed the conviction.

Further, the court could not accept the accuracy of a passage in Archbold (1999 edition) at paragraph 7-82, which stated:

The issue for the Court of Appeal is whether or not the conviction is safe, not whether counsel was competent, incompetent, or flagrantly incompetent: see R v Clinton (ante) in which the court concluded that "it is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the subsection

The ultimate issue for the Court of Appeal was, of course, whether the conviction was safe. It was to be noticed, however, that the the citation from Clinton included a reference to counsel's "ineptitude" which, it seemed, was a necessary prerequisite to any challenge to the safety of a conviction based on on counsels' conduct.

Counsel for the appellant had accepted that, where counsel's conduct at trial was criticised, it was necessary to assess the question whether that conduct had given rise to a want of safety in the conviction. In the light of the authorities before and after the amendment by the Criminal Appeal Act 1995 of section 2 of the Criminal Appeal Act 1968, that concession had been rightly and properly made.

Counsel for the appellant had formulated the test in relation to counsel's conduct as follows: was the decision or action of counsel based on such fundamentally flawed reasons that it might properly be regarded by the Court of Appeal as Wednesbury unreasonable?

For present purposes, it seemed to the court that, whatever the precise language which was used to describe it, counsel was correct in saying that it was only significant fault on the part of trial counsel, or indeed solicitors, which could found a challenge to the safety of a jury's verdict. It might be, although the court expressed no final and concluded view on that aspect of the case, that it was a proper and convenient approach to apply a Wednesbury test to the decision complained of, i.e. whether it was one which no reasonable counsel or solicitor could have reached.

In the present case, the only possible conclusion was that trial counsel had not behaved sensibly and reasonably.