Practice and Procedure


PUBLISHED August 4, 2003

Where a firm of solicitors acted for two co-defendants there was no conflict of interest that operated to taint the conduct of the appellant's defence. He was not misadvised by his counsel, nor was his case mishandled.Appeal against a conviction for a drug-related offence based on an alleged conflict of interest in legal representation. On 27 November 1998 at Kingston Crown Court the appellant ('S') was convicted of conspiracy to supply a Class A controlled drug, namely heroin. S was arrested with his alleged co-conspirators following a police surveillance operation. He was identified by the police as the person who had been wearing a black jacket when he placed a bag containing heroin in the boot of a car and when he later carried a different bag, apparently containing drugs, to a handover meeting. At trial, S had maintained that he had no involvement in the drug operation and was not the person seen in the black jacket. S admitted to owning a black jacket found at the time of his arrest. However, he said that a co-accused ('K') usually wore the jacket. K denied that he was in any way involved and said he was not the person seen wearing the black jacket. In that respect he relied in part on police evidence identifying S. On appeal, S complained that the fact that he was represented by the same firm of solicitors as K gave rise to a conflict of interest and, as a result, his legal representatives had not correctly advised him nor properly put forward his defence, including that K was the person in the jacket.HELD: (1) The fact that solicitors or counsel may have accepted instructions or continued to act where a conflict of interest existed between their client and a co-defendant represented by the same solicitors was not itself a ground of appeal. The question was whether that fact or associated consequences gave rise to unfairness at trial and/or affected the safety of the conviction. (2) In the present case, even if there was a potential or actual conflict, all material advice was given and all material decisions were taken by S's counsel. S's counsel was not himself tainted by knowledge of, or influenced by, K's intentions or interests as relevant to the conduct of S's case. (3) S's recollection that he raised his complaint of conflict of interest with counsel before trial was erroneous, as was his evidence that he had complained to his counsel that he had misadvised him or mishandled his defence. (4) S's instructions were that he was not the man identified by police as wearing the black jacket and he did not know who was. S's counsel could properly take the view that no conflict of interest existed so long as those were S's instructions. The decision not to implicate K directly was S's decision, reached freely and on the basis of reasonable advice. (5) S was not misadvised by his counsel, nor was his case mishandled. There was no conflict of interest that operated to taint the conduct of S's defence. (6) (Obiter) Even if, as alleged, S's counsel effectively ignored S's claim to be able to identify K as the person in the black jacket, the conviction was still safe.Appeal dismissed.

[2003] EWCA Crim 2244