Javaughn Griffith v. Her Majesty's Advocate [2013] HCJAC 84

Criminal note of appeal against conviction:- On 8 May 2012, at the High Court in Glasgow, the appellant was convicted after trial of a charge of assaulting a shopkeeper in a shop and of attempting to rob him. His co-accused was also convicted. At the trial the appellant gave evidence. Prior to cross-examination of the appellant, counsel for the co-accused intimated her intention to invoke section 266(4)(c) of the Criminal Procedure (Scotland) Act 1995 and to cross-examine the appellant in relation to his previous convictions. It was submitted by the counsel for the co-accused that the evidence given by the appellant contained evidence against the co-accused and that counsel for the co-accused had a right, which was not restricted by any discretion on the part of the trial judge, to cross-examine the appellant respecting all of his previous convictions. The trial judge upheld the submissions and held that the test of giving evidence "against" the co-accused was satisfied and considered that, once that test was satisfied, he had no discretion as to whether the cross-examination of the appellant on the basis of his previous convictions could be restrained. The appellant was thereafter cross-examined by counsel for the co-accused and subsequently convicted. The appellant appealed against his conviction on two grounds:- (1) the trial judge was in error in thinking that whenever the test of one accused having given evidence against a co-accused was satisfied, the co-accused was entitled to cross-examine him without being subject to any discretionary control by the court as article 6 of the European Convention on Human Rights reinforced the need to interpret the provisions of section 266(4)(c) as giving the trial judge a measure of discretion sufficient to ensure a fair trial; and (2) trial counsel failed to advise the appellant, when discussing whether he should give evidence, of the risk that were he to give evidence in support of his plea of alibi his previous convictions might be put before the jury. Here on behalf of the appellant it was submitted that by virtue of the entry into force of the Scotland Act 2012 and the Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) SSI 2013/72on 22 April 2013, the devolution issue with which the first ground of appeal was associated now fell to be treated as a compatibility issue.  It was conceded on behalf of the appellant that the appellant in chief did give evidence “against” the co-accused and to that extent the test set out in section 266(4)(c) of the 1995 Act was satisfied, however, it was submitted that did not mean there was no discretion left to the trial judge to control the extent to which the accused might be cross-examined by counsel for the co-accused on his previous offending, which in this case included directly analogous previous convictions. It was further submitted that by virtue of article 6 of ECHR, there was a requirement for a trial judge to have under continuous consideration his responsibility to ensure a fair trial throughout and in the present case trial judge was in error in thinking that there was no discretion open to him. On behalf of the Crown it was submitted that the legislation allowed no element of discretion once the test in section 266(4)(c) of giving evidence against another accused had been satisfied. In respect of the “quasi Anderson” appeal it was submitted the appellant had not been given appropriate advice by his trial counsel (a point conceded by the trial counsel) and the appellant's decision to give evidence was not a properly informed decision and the proceedings were unfair on that account. It was submitted on behalf of the Crown that the test, in Anderson v HMA 1996 J.C. 29 for an appeal on the basis of defective presentation, could not be met as the defence of alibi had been presented. Here the court considered that, where the gateway test is genuinely met, as opposed to having been deliberately engineered by counsel for the co-accused, the statute did not confer on the court any discretion to disallow relevant questions which were properly directed to adducing evidence only of convictions importing dishonesty. The court also refused the second ground of appeal on the basis that the scope of an appeal on the basis of defective representation is limited to situations where an accused's defence is not presented to the jury which it had been in the present case. Further, in relation to the present case the court considered the difficulties the appellant would have faced in supporting his defence of alibi had he elected not to give evidence.