Appeals against conviction based on the alleged incompetence of defence counsel at trial: the Privy Council considers the evidential challenges

In McLeod v The Queen (Jamaica) [2017] UKPC 1 (30 January 2017), the Privy Council has had to consider an appeal against conviction for murder, in which the ground of appeal was that the defendant had wished to give evidence on his own behalf, but did not do so, in circumstances where he claims that he had been unable to obtain any opportunity to explain his desire to his trial Counsel (or to take considered legal advice on the pros and cons of giving evidence in his own defence).

Before the Jamaican Court of Appeal, the appellant and his trial Counsel, Mr. Palmer, both lodged conflicting affidavits as to the circumstances in which the appellant gave instructions and took legal advice.

The Jamaican Court of Appeal, however, had declined to establish the true facts, and proceeded on the basis of making certain assumptions in favour of the appellant (which, nonetheless, the Jamaican Court of Appeal felt were insufficient to justify an appeal).

The Privy Council decided that this was not the correct approach, since, if assumed to be true, the Appellant’s allegations could well justify an appeal against conviction, on the basis that the appeal could not be said to have been safe.

The Privy Council directed that the appeal should be remitted to the Jamaican Court of Appeal for determination, after it had determined the true facts, and after it had resolved the conflicting evidence as between the appellant and his former Counsel, Mr. Palmer.

The Privy Council declined to give definitive guidelines as to how the Jamaican Court of Appeal should resolve the conflicting accounts of the appellant and Mr. Palmer, although it appears to have contemplated that oral evidence and cross-examination may well be appropriate.






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