Singh, R. v

A conviction will not be unsafe merely because appellate counsel would have conducted the trial differently. An appeal founded on trial counsel’s incompetence requires a high level of incompetence. A reasonable tactical choice, or a possible error of judgment identified with hindsight, does not meet that standard.

Where the defence is a complete denial, counsel may reasonably advise the defendant not to give evidence and decline to adduce psychiatric evidence that does not address whether the acts occurred and may damage the defence. The appellate court must assess the alleged deficiencies in the round and decide whether the conviction is unsafe.

The appellant was convicted at the Crown Court at Snaresbrook of three counts of indecent assault on his younger brother, contrary to section 15(1) of the Sexual Offences Act 1956, and one count of attempting to inflict grievous bodily harm. He received a two-year term of imprisonment suspended for two years.

He appealed out of time, alleging that trial counsel’s decisions not to call psychiatric evidence concerning his autism spectrum disorder and not to call him as a witness rendered the convictions unsafe. The central issue was whether those tactical decisions were so flawed as to undermine the safety of the convictions.

1. The appeal was dismissed. The court found no sufficient explanation for an extension of more than two years, although it considered the substantive grounds because leave to appeal had been granted and the arguments had been fully advanced.

2. An allegation that trial counsel’s conduct made a conviction unsafe requires a high level of incompetence. It is insufficient that another advocate might have made different tactical decisions, or that hindsight might identify a possible error of judgment. The question remains whether the conviction is unsafe.

3. Trial counsel’s advice was reasonably open to her. The defence was a complete denial of the offending. The psychiatric report did not bear on whether the alleged acts had occurred. It could also have damaged the defence by disclosing material capable of supporting the prosecution case. Counsel could reasonably conclude that, after substantial cross-examination of the complainant, the risks of the appellant giving evidence outweighed any benefit. The absence of medical evidence of injury was an obvious point which counsel could deploy without obtaining further expert evidence.

4. R v Thompson [2014] EWCA Crim 836 did not assist. Unlike that case, the appellant had not admitted any conduct whose sexual character might be explained by an undiagnosed autism spectrum disorder. The court considered the convictions safe when the case was assessed as a whole.

5. The court also stated that a single judge who does not refuse an out-of-time application should refer both the extension application and the leave application to the full court. It further reaffirmed that criticisms of trial counsel should not be advanced without first seeking counsel’s views in accordance with R v McCook [2016] 2 Cr App R 301.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction.
• Crown Court at Snaresbrook: on 18 September 2015, convicted the appellant of three indecent assaults and attempting to inflict grievous bodily harm; imposed two years’ imprisonment suspended for two years.