Ahmad Yazdanparast v. Her Majesty’s Advocate [2015] HCJAC 82

Note of appeal against conviction:- In June 2014 the appellant was convicted of a charge of murder. The deceased was the appellant’s wife and the circumstances were that the appellant had poured petrol over her and ignited it. She subsequently died from her injuries. There had been a compelling circumstantial case against the appellant including:- (1) the appellant filling a container with petrol on the morning in question; (2) the appellant entering the shop which he worked in above the premises operated by the deceased as a beauty salon in possession of a holdall; (3) on the day in question he was seen throwing large pieces of paper outside the premises which were later found to contain messages which related to allegations of the deceased’s adultery; (4) the appellant was seen to enter the salon with a container and leave shortly afterwards at which time a fire had begun in the salon and the appellant collapsed on the pavement; (5) the appellant stated it was petrol that caused the fire; (6) a lighter with missing components was lying beside the appellant and the missing components were recovered from inside the salon at the seat of the fire; (7) the deceased was able to state before she died that the appellant was responsible for throwing acid and petrol over her and her injuries were consistent with the description given by her; and (8) there was evidence of the appellant previously evincing ill will and malice towards the deceased in which he threatened to throw acid on her face and kill her. The appellant was convicted. The appellant appealed against his conviction on 3 grounds:- (a) defective representation in the preparation for trial; (b) defective representation in the conduct of the trial; and (c) defective representation by restricting the appellant’s right to select appropriate representation. In relation to ground (a) it was submitted that those acting for the appellant failed to adequately investigate the appellant’s state of mind prior to trial, both in relation to his fitness for trial and at the time of the commission of the offence and, in particular, they should have instructed a defence psychiatric report. The report which they did obtain, from Dr Jacqueline Law, a psychologist, related only to and the appellant’s vulnerability as a witness and was not sufficient. In relation to ground (b) which related to the leading of evidence that the appellant had a previous conviction for assaulting his wife it was contended that the appellant’s instructions were not sought prior to the eliciting of this evidence and the appellant alleges that doing so was “directly contrary to my instruction”. In relation to ground (c) it was contended on behalf of the appellant that he had been denied an informed choice in his representation at trial. The court refused the appeal. In relation to ground (a) the court considered that it could not be said that the mental state of the appellant was not fully and properly addressed and considered prior to trial particularly in light of the conclusions of Dr Gray who had provided a psychiatric report on the instruction of the Crown which was clear in stating that the appellant did not suffer from a major mental illness or psychotic disorder. The court observed that the defence were entitled to consider that assessment as definitive and there was no requirement upon them to take further action. The court did express some concern that despite the clear position in relation to the absence of any mental illness which may have supported a plea of diminished responsibility, the defence at the trial invited the trial judge to direct the jury that on the basis of the evidence of Rodger Ridley, a mental health social worker to whom the appellant had been referred, they could consider the issue of diminished responsibility. The court considered that the defence sought to raise the issue of diminished responsibility without any proper evidential basis and had done so on a purely speculative basis. In relation to ground (b) the court noted that the appellant’s position contradicted the positions of the solicitor advocates who represented him at trial and, according to the trial judge’s report on the issue, it appeared that during his evidence the appellant did not seem reluctant in giving his version of events in relation to the incident which had resulted in his conviction which he stated was part of a series of false allegations by the deceased. The court noted here that ground (c) could only succeed in the event that the substantive grounds of the defective representation appeal had merit and as they had been refused ground (c) also fell to be refused. The court did go on to consider the rights of an accused person, particularly in relation to a charge of murder, in making a fully informed decision in relation to representation at trial. The court observed that little was done here to ensure that the appellant had true and informed consent as to his choices of representation. The court raised concerns that in the present case the observations in Addison v HMA 2014 SLT 995 and Woodside v HMA 2009 SLT 371 and the obligations referred to therein had not been complied with. In particular, the court raised concerns regarding the use by the solicitor advocates instructed to the terms ‘counsel’, ‘senior counsel’, ‘junior counsel’ and ‘senior solicitor advocate’ in the responses received by the court to the Anderson grounds of appeal. There were further concerns expressed in relation to the independence of solicitor advocates instructed to represent an accused at trial if that solicitor advocate is employed by the same firm who instructs him or her and the dangers of a conflict of interest arising. The court also observed that it is surprising that the Rules for the Conduct of Solicitor Advocates 2002 have not been reconsidered given the criticism referred to in Addison and Woodside.