Supreme Court: Court outlines proper approach to appeals where incompetent legal representation is alleged

Killian Flood BL

About this case:

• Citation:
  [2021] IESC 15
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Frank Clarke

The court determined the appropriate procedural stages to an analysis by an appellate court in assessing substandard representation. Further, the court made a number of points regarding the principles that ought to be followed by an appellate court.

Notably, the court took the view that, where a serious matter had been raised by a former client which was out in dispute, it was appropriate for the Court of Appeal to hear oral evidence from both sides. Further, the court said that the reputations of individual lawyers was not a factor which was to be considered in such cases.

Background

The accused, Mr Brian Shaughnessy, was convicted of raping a 17 year old co-worker at a staff party in a suite of a hotel. In 2013, he was sentenced to six years’ imprisonment with 12 months suspended for the assault. The accused did not give evidence in the case and sought to test the prosecution’s case through cross-examination.

Six years later, Mr Shaughnessy sought to amend his notice of appeal by claiming that his lawyers had acted in breach of his instructions. Essentially, he claimed that he had spent two hours in the room with the complainant, while she claimed that it was 30 minutes. It was the accused’s case that, if the complainant spent two hours in the room, it would raise doubts about the credibility of her testimony. The accused said that he had made this clear to his lawyers and was surprised that it was not put in issue at the time. It was said that his counsel failed to properly establish in cross-examination his case regarding the timescale of the alleged assault.

In April 2020, the Court of Appeal upheld the conviction, ruling that the claims of incompetent representation were to be analysed as if the application about representation was one to admit newly discovered evidence after a trial. The former lawyers for Mr Shaughnessy swore affidavits in which they claimed to have acted appropriately. Further, the lawyers (through their own counsel) addressed the court in addition to the prosecution and the defence. However, there was no oral evidence given by the parties in the case.

The case was appealed to the Supreme Court.

Supreme Court

Giving judgment in the case, Mr Justice Peter Charleton began by noting that in a legal aid system with a free choice of lawyers, it should always be assumed that legal representation is competent unless shown otherwise. A claim of incompetence was a “serious burden” for a person to prove. The court warned against considering in hindsight if better legal advice could have been given, stating that a “wide margin of appreciation” had to be given to decisions made by an accused person’s lawyers.

The court held that it was not appropriate for Mr Shaughnessy’s original lawyers to have taken an active role in the Court of Appeal hearing. An appellate hearing relating to competence should not be a “tripartite contest” and should always remain a dispute between the prosecution and accused. The court reasoned that, while it might be upsetting for a lawyer to have their reputation damaged by allegations of incompetence, the fundamental issue on appeal was the safety of the conviction rather than the reputation of the lawyers.

The court held that the Court of Appeal had erred by applying the test in The People (DPP) v O’Regan [2007] 3 IR 805 to the appeal. It was held that O’Regan was concerned with fresh evidence being adduced on appeal when that evidence was available at trial, which was different from the present allegations that the lawyers had made a mess of the defence.

The correct procedural approach was then outlined by the court. First, it was necessary for an accused to put forward such evidence to discharge the heavy burden of proof that his representation was incompetent. As such, a comprehensive affidavit should be supplied on appeal setting out the specific allegations of incompetence or neglect of duty. The accused must identify credible factors which demonstrate incompetence.

The prosecution should be given opportunity to respond to any affidavit evidence of incompetence, the court said. It was noted that the prosecution should clarify the extent to which an accused person had waived their legal privilege, before answering the case using evidence from the former lawyers. The prosecution should redact any exhibits of attendance notes or advices due to the potential adverse effect on third parties, such as accomplices.

Mr Justice Charleton held that an appellate court must then consider whether the accused has made out a realistic case of incompetence on the affidavit evidence. If the accused has met the objective standard of incompetence and there is a serious contest between the accused and the prosecution regarding the lawyers’ conduct, then it may be appropriate for the court to her oral evidence from the parties. In reaching a decision, a court should consider whether the alleged level of incompetence was such to deny the accused a fair trial, the court said.

Applying the above test and principles to the appeal, the court held that there was a “genuine contest” between the parties as to whether the accused’s instructions were followed in the case. However, the court stressed that it was unable to say whether actual incompetence had occurred in the case, stating the case was “far off that resolution.” Instead, it was said that there was a “stark clash of accounts” and the accused’s credibility needed to be tested in oral evidence.

Conclusion

The court determined that the matter should be remitted to the Court of Appeal and that the court’s analysis should be applied in that hearing.