Inadequate Defence and ‘Legal Incompetence’

The CCRC has referred convictions that resulted from circumstances in which an applicant had received an inadequate defence or unfair trial due to “legal incompetence” on the part of their lawyers.

Legal Incompetence

Although legal incompetence is a common complaint from applicants to the CCRC, it has been the main reason for a reference in relatively few cases.

This is because incompetence itself, for example poor trial preparation or a failure to call certain witnesses, is not necessarily enough for the appeal courts to find that the safety of a conviction has been undermined.

For example, in 2001 the CCRC referred the murder conviction of Mark Day. Its review found that Mr Day’s solicitors had failed to instruct leading counsel until just before the trial and, having been engaged late, Mr Day’s barrister was forced to absent himself for part of the trial, leaving the matter with junior barristers.

The CCRC also considered that the solicitors had not adequately explored all relevant issues and that this was to the detriment of the defence’s strategy.

Whilst the Court of Appeal accepted that pre-trial preparation had been incompetent, it dismissed the appeal and said:

…in order to establish lack of safety in an incompetence case the appellant has to go beyond incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.”

In other words, in these cases it must be shown how incompetence led to errors or irregularities that impacted on the “live issues” of the original trial.

Similarly, in the cases of Philip Hall and Mr BT, the Court of Appeal recognised the defence failures that had been identified by the CCRC but in both cases decided they did not go far enough to affect the safety of the conviction.

CCRC Reviews of Incompetence Cases

However, legal incompetence and an inadequate defence has been found to have been an issue justifying the quashing of convictions in several other CCRC references.

In its review of the case of James Hester, the CCRC found that a critical alibi witness had not been called at trial. There was clear evidence that Mr Hester had given instructions that the witness be called but there appeared to have been a breakdown of communication.

As a result, no arrangement was made by the defence solicitors for the witness to be notified or to attend trial. The CCRC concluded that the failure to call the witness had been due to factors beyond Mr Hester’s control and it referred the conviction. It was subsequently quashed by the Court of Appeal.

In Mr N’s case, defence lawyers made a decision not to call a vital witness who had made a statement corroborating Mr N’s version of events because of concern that the prosecution held provocative photographs of the witness which could be used to attack their credibility.

Following the CCRC’s reference, the Court of Appeal found that this decision had been prejudicial to Mr N’s defence and quashed the conviction.

In its reviews, the CCRC will consider whether any legal incompetence goes far enough in the circumstances of the case to raise a real possibility the appeal court will quash the conviction.”

Another example is the case of Andrew Adams, convicted in 1993 of murder. The CCRC’s review identified a number of significant concerns, including:

• In a very complex case new counsel had insufficient time to prepare.
• Important pre-trial preparatory work was not done.
• The police HOLMES database was not interrogated.
• Discrepancies of timings in police evidence were not investigated.
• Important questions about the nature of the understanding between police and a crucial informant witness were not considered or pursued.

In this case the CCRC also found evidence of material non-disclosure by the prosecution and considered that there had been errors in the trial judge’s summing-up.

The Court of Appeal, which considered the authority in the case of Mark Day, quashed the conviction and recognised the impact of both insufficient pre-trial preparation and late-instructed counsel on the safety of the conviction.

Other Cases

Occasionally, convictions have been quashed on the basis of legal incompetence following a CCRC reference even though this was not a primary reason for the reference.

In the robbery case of Alexander Allan, for instance, the CCRC found that police had taken disputed confession statements from Mr Allan in circumstances which breached the Police and Crime Evidence Act 1984 (PACE).

Following a CCRC reference, the Court of Appeal concluded that Mr Allan’s defence had made an error in failing to make an application under PACE for the statements to be excluded. The Court found that this failure might have influenced the trial and quashed the conviction.

Along similar lines, after the CCRC referred the murder and robbery convictions of John Kamara, it was found that defence lawyers had acted in error in failing to apply for a retrial.

This was after Mr Kamara’s co-defendant unexpectedly changed their plea to guilty in the middle of the trial but Mr Kamara’s trial continued with the same jury. The Court of Appeal later quashed the conviction.

The CCRC will carefully consider claims of legal incompetence when they are submitted. If a review finds that this may have affected the fairness of the trial to the extent that there is a real possibility the appeal court will quash the conviction, the CCRC can refer the case for a fresh appeal.

You can find more details about the CCRC’s legal incompetence cases here.

If you believe you have been wrongly convicted of a crime or unfairly sentenced, you can apply to the CCRC for a free review of your case.