Morris, R v

A criminal conviction is unsafe where a solicitor’s conflict of interest deprives the accused of a fair opportunity to advance a defence. A solicitor who has represented potential alternative perpetrators should not act where continuing duties to former clients are liable to inhibit a direct and robust case against them. The court must assess the actual effect of the conflict upon the defence strategy. Strong evidence against the accused, conscientious work in other respects, and the accused’s wish to retain the solicitor do not cure a trial rendered unfair by the lost opportunity to present the defence fully.

The appellant had been convicted at the Crown Court at Swansea of four murders and sentenced to life imprisonment. His solicitor had previously represented Stephen Lewis and Ian Stuart Lewis, whose conduct was material to the appellant’s proposed defence that others, particularly Alison and Stephen Lewis, may have been involved.

Although the solicitor had sought and received a qualified indication of no objection from the former clients, he continued to owe them duties and also acted for them in some matters after accepting the appellant’s instructions. The appeal concerned whether that conflict affected the preparation and presentation of the defence so as to deprive the appellant of a fair trial.

1. The appeal was allowed. The convictions were unsafe because the appellant had not received a fair trial. As recognised in R v Togher [2001] 1 Cr.App.R 33, an unfair trial results in unsafe convictions.

2. The solicitor should not have accepted the appellant’s instructions. His earlier and continuing professional relationship with the Lewis brothers created an inherent conflict. He was defending a client whose case required serious consideration of material implicating his former clients, while remaining constrained by duties owed to them and by a qualified condition that Stephen Lewis would not be accused of the murders.

3. The conflict permeated the defence strategy. The defence deliberately avoided directly alleging that the Lewises were involved, did not put serious allegations to Alison or Stephen Lewis, and did not pursue available material concerning Ian Stuart Lewis. The court did not decide that every omitted line of inquiry should have been pursued. It held, however, that there was a strong probability that an unconflicted defence would have made a more vigorous case against the alternative suspects.

4. The prosecution case was strong and the defence had otherwise been conscientiously prepared. Those matters, and the appellant’s continued wish to retain his solicitor, did not remove the lost opportunity to present a defence likely to receive serious consideration from the jury.

5. The court quashed the convictions and ordered a retrial under section 7 of the Criminal Justice Act 1968. It directed that a fresh indictment be preferred and that the appellant be rearraigned within two months under section 8(1) of that Act, as amended by section 43 of the Criminal Justice Act 1988. The retrial was to remain on circuit, with venue to be determined by the Presiding Judge of the Circuit. The court gave procedural directions on a proposed wasted-costs application but made no substantive order on it.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 1246, the court allowed the appeal, quashed the convictions, and ordered a retrial.
• Crown Court at Swansea: On 28 June 2002, Butterfield J and a jury convicted the appellant of four murders and imposed life sentences.