Thursday, November 23rd, 2017

Appeal against Conviction by BK against Her Majesty's Advocate [2017] HCJAC 68

Claire Mitchell of Compass Chambers appeared for the appellant in this Appeal against conviction.


On 15 October 2015, at Glasgow Sheriff Court, the appellant was convicted after trial of two charges of using lewd, indecent and libidinous practices and behaviour towards SA and BJA (charges 1 and 2) and one of sexual assault against BJA contrary to section 20 of the Sexual Offences (Scotland) Act 2009 (charge 3). SA and BJA were the appellant’s foster children. The appellant and his wife were registered foster carers and had cared for over 30 children on short term placements over a number of years.

On 26 October 2015, the appellant was sentenced to:

  • 1-year imprisonment on charge 1;
  • 2-years imprisonment on charge 2; and
  • 2-years imprisonment on charge 3.

The appellant appealed against his sentence and his conviction. Leave to appeal was granted only in relation to a ground of appeal relating to conviction, which alleged defective representation, in particular: a failure by the appellant’s legal representatives to obtain medical and social work records in support of the appellant’s position that he was never left alone with either of the complainers, and a failure to put forward his defence despite specific requests from the appellant and his family for his representatives to do so.

Appeal Hearing

It was the appellant’s position that he had given express instructions that the social work department and other records should be obtained as part of the preparation for his trial, with a view to supporting the presentation of a defence that the allegations made by the complainers were unfounded because of protocol or rules which were in existence at the time of the alleged offences. In particular, there were passages in the records which supported the appellant’s position that he was aware of the risk of allegations being made by the complainers against him, as they had exhibited sexualised behaviour on being placed with the appellant and his wife, and that he received advice and training from the social work department about measures to reduce this risk, for example, not being left alone with the complainers and the existence of the protocol or rules which could have been relied on at trial and would have supported the appellant’s position.

It was submitted on behalf of the appellant that he had advised the instructed solicitor advocate of the existence of the protocol in advance of the trial and that they were fundamental to his line of defence and the failure by the solicitor advocate to take steps to obtain them and place the information before the jury was not a tactical decision but, rather, a failure to adequately present the appellant’s defence and resulted in him not receiving a fair trial.

On behalf of the Crown it was submitted that it was only following his conviction that the issue of the protocol was being given such prominence. It was submitted that the social work records contained information which was contrary to the appellant’s interests. It was further submitted that the solicitor advocate instructed had discussed strategy with the appellant in advance of trial and the appellant had agreed with him. It was submitted that there had been no miscarriage of justice.  


The appeal was allowed.

The court reiterated that the scope of a defective representation appeal is limited, but in the present circumstances it considered that the test (Burzala v. HMA 2008 SLT 61) had been met.

There were a number of flaws in the manner in which the case had been prepared on behalf of the appellant:

  • It was clear that the decision the solicitor advocate had reached not to obtain the records was premature and was formed in the absence of adequate information.
  • There had been a failure to properly precognose witnesses and to find out precisely what the protocol or rules were.
  • The court considered that the reasons given by the solicitor advocate not to pursue recovery of the requested documentation on the basis that they were collateral and not admissible were flawed as the existence of the protocol or rules could have been relied on at trial and was highly relevant.
  • The court did not agree with the solicitor advocate’s position that an attempt to recover the social work records could be described as a fishing exercise as the purpose for obtaining them was clear and could not be described as collateral.

Ultimately, the court considered that the failure to fully investigate the issue resulted in a substantial line of defence not being presented to the jury, which could have raised a reasonable doubt in their minds. If the social work records had been obtained which showed that the appellant and his wife had concerns about the complainers, that these concerns had been discussed with the social work department and that mechanisms were in place to address these concerns, then the appellant’s case would have been significantly bolstered. The failure to do so led to the appellant being denied a fair trial and a miscarriage of justice had occurred.

A copy of the decision can be found here.

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