Saracoglu, R v

Representation of co-defendants by the same solicitors or counsel, despite an actual or potential conflict of interest, does not by itself make a conviction unsafe or constitute a ground of appeal. The appellate question is whether the conflict, or a step taken or omitted because of it, caused unfairness at trial or affected the safety of the conviction.

Where independent counsel gave the material advice and acted solely for the appellant, any conflict affecting the solicitors did not operate adversely on the defence. In any event, a conviction remains safe where the evidence of guilt is overwhelming, even if the alleged failure to act on instructions is assumed in the appellant's favour.

The appellant was convicted at Kingston upon Thames Crown Court before HHJ Binning and a jury of conspiracy to supply Class A heroin. He received 14 years’ imprisonment and a recommendation for deportation.

He appealed on the basis that the solicitors who also represented a co-accused, Kiprit, had a conflict of interest. He contended that he had instructed his representatives to advance a positive case that Kiprit, rather than he, was the man seen wearing a black jacket and carrying drugs, but that this defence was not pursued. The Court of Appeal heard evidence from the appellant, his trial counsel and solicitor, a pre-trial counsel, and an interpreter.

The central issue was whether the shared representation or the advice about a possible cut-throat defence made the trial unfair or rendered the conviction unsafe.

1. Appeal dismissed. Lord Justice Potter, delivering the court’s judgment, held that there was no basis for finding that the appellant had been denied a fair trial under Article 6 of the European Convention on Human Rights. No criticism was made of the judge, the admission of evidence, the procedure, or the summing-up. The appellant had a full opportunity to challenge the prosecution case and advance his defence.

2. The fact that solicitors or counsel act where there is a conflict between a client and a co-defendant represented by the same solicitors is not, without more, a ground of appeal. The necessary inquiry is whether that circumstance, or conduct caused or influenced by it, created unfairness in the trial or affected the conviction’s safety.

3. There may have been a potential or actual conflict in the solicitors continuing to act for both the appellant and Kiprit when a cut-throat defence could have arisen. That did not affect the conduct of this defence. The material advice and decisions were those of trial counsel, who acted solely in the appellant’s interests and was not influenced by Kiprit’s position.

4. The court rejected the appellant’s account that he had instructed counsel before trial to identify Kiprit positively as the man in the black jacket. His instructions were that he was not that man but could not say who was. Counsel could properly regard there as being no conflict while those instructions remained. The appellant’s decision not to implicate Kiprit directly was freely made after reasonable advice about the risks of a cut-throat defence.

5. Alternatively, even if counsel had ignored instructions to identify Kiprit and had dissuaded the appellant from doing so, the conviction was safe. The evidence of the appellant’s participation was overwhelming, including police identification, the jacket evidence, his presence and activities at the distribution premises, and his connection with the admitted conspirator.

• Court of Appeal (Criminal Division): Appeal dismissed. The conviction was held safe notwithstanding the alleged conflict of interest in the solicitors’ representation.
• Crown Court at Kingston upon Thames: The appellant was convicted by an 11–1 majority verdict of conspiracy to supply a Class A controlled drug and was sentenced to 14 years’ imprisonment with a recommendation for deportation.