Appellant accuses counsel

In Muirhead v R (Jamaica) [2008] UKPC 39 (28 July 2008) the Privy Council allowed an appeal against conviction for murder because of fundamental irregularities that created an unacceptable risk that the trial had not been fair. The issue was identification, and the only significant evidence against the accused was from a child eye witness.

The irregularities were of the kind that only become apparent after the trial: an observer would have thought that there was nothing out of the ordinary in the way the trial had been conducted. Significantly, the appellant’s claim that the errors had occurred was not contradicted by any explanation tendered to the appellate court (the Board) by counsel who represented the appellant at trial.

The appellant swore in an affidavit to the Board that he had not received advice on the consequences of giving a statement from the dock instead of (as he had done at his first trial, in which the jury were unable to agree) giving evidence. He said junior counsel had suddenly indicated to him, while he sat in the dock moments before the decision had to be made, that senior counsel felt he should not go into the witness box. He received no advice about what a statement from the dock entailed or what he should talk about, or about the weight it might have compared with evidence from the witness box.

Also, there was no explanation tendered by counsel for failure at the second trial to call or adduce evidence of the accused’s good character, when such evidence had been called at the first trial.

The Board stressed the importance of counsel keeping a record of instructions (27). That would not assist the appellate court if counsel refused to divulge what they were, but there are ways of making counsel co-operate (new counsel on appeal summoning earlier counsel to give evidence after waiver of privilege by the client). Here there was only silence, and the Board did not speculate as to why.

The duty of counsel to raise good character was emphasised by Lord Carswell and Lord Mance in a concurring judgment (34). Failure to do so here had significance where the appellant should have given evidence at trial, as the judge’s direction on good character may have affected the jury’s assessment of his evidence, especially here where at the first trial the jury had failed to agree. Therefore, the appellant may not have received a fair trial.