Goodman v R.

A conviction may be unsafe where a defendant has been significantly failed by her legal representatives and, as a result, her defence was not properly put before the trial court. The appellate court must assess whether the alleged failure actually inhibited the defence or caused material prejudice.

A solicitor is not required, and must not seek, to devise a more advantageous account which the defendant does not advance and which would be false. Where contemporaneous material shows that the defendant understood the risk of conflicting defences, chose a consistent account, and was able to give relevant instructions and evidence, an alleged conflict of interest will not render the conviction unsafe.

The applicant sought leave to appeal against her conviction at Harrow Crown Court for permitting her bungalow to be used for cannabis cultivation. Her defence at trial was that she had let the property to tenants and did not know of the cultivation.

On appeal, she alleged that her solicitors had also acted, or might act, for her husband, who she said was responsible for the cultivation. She contended that their relationship with him and her fear of him inhibited her from advancing her true case.

The court heard evidence de bene esse from the applicant, her husband, the solicitor and the applicant’s sister to determine whether the applicant’s and husband’s evidence should be received under Criminal Appeal Act 1968, section 23. The central issue was whether any conflict or deficient representation had made the conviction unsafe.

1. The application for leave to appeal against conviction was refused. The court found no basis for concluding that the solicitors’ representation had inhibited the applicant’s defence or prejudiced her trial.
2. A conviction could be unsafe if a defendant had been significantly failed by her solicitors and her defence had consequently not been properly put. That issue was distinct from the strength of the prosecution evidence. Here, however, the contemporaneous records showed that the applicant understood the possibility of a conflicting or “cut-throat” defence and chose to maintain that unknown tenants, rather than her husband, were responsible.
3. The applicant was capable of making her own decisions. She selected counsel, initiated steps to co-ordinate her case with that of the co-accused, gave her solicitors information about her husband’s violence, and gave evidence at trial that criticised him. Her decision not to blame him for the offence was therefore her own, not the product of any conflict involving her solicitors.
4. The court rejected the applicant’s and her husband’s evidence except where independently supported. It accepted that the solicitor had occasional contact with the husband and had allowed the relationship to become less professionally distant than was prudent. That did not establish an improper relationship or any adverse effect on the applicant’s case.
5. A legal representative must not suggest a better false case for a defendant. The applicant’s original case was consistent with her instructions and with the positions adopted by her husband and the co-accused. Her representatives could not properly substitute a false account attributing responsibility to her husband.
6. Having heard the proposed fresh evidence, the court refused to receive the evidence of the applicant and her husband under section 23 of the Criminal Appeal Act 1968. Leave to appeal against sentence, which was not pursued, was also refused.

• Court of Appeal (Criminal Division): refused leave to appeal against the conviction and refused the unpursued application concerning sentence: [2010] EWCA Crim 1206.
• Harrow Crown Court: convicted the applicant of permitting premises to be used for the cultivation of cannabis. The retrial concluded on 18 September 2008.