McLeod v The Queen

A complaint that counsel made an erroneous tactical decision will only exceptionally establish a miscarriage of justice. That principle differs from an allegation that counsel wholly failed to consult or advise a defendant about the choice between sworn evidence and an unsworn statement. A defendant has a legal right to give evidence in his own defence. Where that right may have been lost through counsel’s failure to confer, an appellate court must assess whether it can be sure that sworn evidence would have made no difference. It cannot reach that conclusion by speculation which disregards a jury direction that an unsworn statement carries less weight than sworn evidence.

The appellant was convicted of murder at a retrial in Jamaica. He had made an unsworn statement from the dock. After conviction, he alleged that his counsel had failed to consult him about his wish to give sworn evidence. Counsel denied that allegation and said that he had advised the appellant before both trials.

The Court of Appeal of Jamaica could not resolve the conflicting affidavits without cross-examination. It nevertheless dismissed the appeal, assuming the appellant’s account to be true, because it considered that the eyewitness evidence was strong and that sworn evidence would have made no difference. The central issues before the Board were whether that approach was correct and how the factual dispute should be determined.

1. The Board remitted the appeal to the Court of Appeal of Jamaica for resolution of the factual dispute and consequential determination. The Court of Appeal had power under section 28 of the Judicature (Appellate Jurisdiction) Act to receive the affidavits as fresh evidence.

2. The complaint was not that counsel had made an unwise tactical decision. Trial decisions of that kind are an inevitable part of the process and will only exceptionally amount to a miscarriage of justice, as explained in R v Clinton [1993] 1 WLR 1181. The complaint was instead that counsel had wholly failed to discuss or advise on the choice between giving evidence and making an unsworn statement.

3. If that allegation were true, the appellant would effectively have been deprived of his legal right to give evidence in his own defence, regardless of whether giving evidence would have been tactically wise.

4. The correct question was whether it was possible to be sure that giving sworn evidence would have made no difference. The case involved a direct conflict between the eyewitness and the appellant. The jury had been directed that the unsworn statement was entitled to such weight as it considered appropriate but could not be weighed on the same scale as sworn evidence. It was therefore speculative to conclude that the absence of sworn evidence must inevitably have made no difference.

5. The Board considered it unsatisfactory to resolve the factual dispute on paper when the Court of Appeal had been unable to do so. That court was to decide whether oral evidence from the appellant and, if necessary, counsel should be heard. A complaint alone did not automatically require counsel to be cross-examined. Pending any different order, both were directed to attend the further hearing.

• Privy Council: In [2017] UKPC 1, the appeal was remitted to the Court of Appeal of Jamaica for resolution of the factual dispute and consequential determination.
• Court of Appeal of Jamaica: Dismissed the appeal, accepting that it could not resolve the conflicting affidavits but holding, on the appellant’s account assumed in his favour, that no miscarriage of justice had been shown.