29 May 2010

Tales from Parliament House Vol. 4

Make no mistake. If you stand up in the dock and respond "Guilty M'lord" and subsequently think the better of it, don't expect to find sympathetic judicial faces at your appeal. You can understand the suspicion. Why plead guilty in the first place? And what's more, it looks more than a little iffy to suddenly realise you didn't want to confess, after you have been sentenced - perhaps significantly more harshly than you had anticipated. Yet in Nicola Gallagher v. H.M. Advocate, Gallagher attempted to do just this.  And  rather astonishingly, succeeded. The facts of her case are worth paying attention to, as they disclose the extent to which ignorant people can be prodded around by their lawyers, how the theoretical "equality of arms" between citizen and state is readily, all too readily transformed by the bustle and rush and shove of procedures - into a version of Kafka's The Trial. Nicola Gallagher had been charged with fraudulently obtaining Working Tax Credit by failing to disclose her husband's earnings and claiming them on the part of her son - who is deceased - to the tune of £23,927.35.  She plead guilty to an amended version of the charge, limiting the sum alleged to £16,000, and was sentenced to a year a prison. The appellant said:

"...that she pled guilty only because her former solicitor, Mr Matthew Berlow of Beltrami Berlow, solicitors, Glasgow, told her that unless she did so, he would withdraw from acting and leave her to defend herself. Furthermore, she did not understand the nature of the charge to which she was pleading guilty. She therefore did not give a true and informed consent to the tendering of the plea."

Not a point of appeal you'd generally get good odds on. Here is the evidence, as it was set down in the opinion. Much of interest here, for outsiders peering in, trying to get a sense of how plea bargaining works in our criminal justice system. Not a pretty sight, I'd say. First, here was the evidence adduced by the appellant, her side of the story:

[5] The appellant said that she had had no previous experience of the criminal courts. After being interviewed by HM Revenue and Customs, she consulted a solicitor; but the solicitor left practice soon after. She then approached Beltrami Berlow. At her first meeting at their office, Mr Berlow was stuck in traffic. She saw Mr Beltrami instead. On this occasion, she signed legal aid papers. There was no discussion of the case. There was no further meeting at that office. She had one conversation with Mr Berlow on the telephone. He seemed not to be familiar with the case. He told her that he would discuss matters with her on the day. She met Mr Berlow for the first time on the morning on which she pled guilty. The question of his negotiating a plea was then discussed for the first time. Her conversation with Mr Berlow took place in the street outside the court building. It was a busy main street with buses passing. The conversation lasted for about ten minutes. She said that Mr Berlow told her in forceful terms that she would have to plead guilty and that if she did not, she would have to represent herself or explain to the court why she did not have a lawyer. Her position was that although she had not declared income, she thought that she did not have to do so until the renewal of Working Tax Credit in July, at which point her benefits would be calculated and any adjustments would be made. Mr Berlow said that if she was admitting that she had worked but had not declared that, then she was guilty. The appellant said that she never told Mr Berlow that she wished to plead guilty. She did not ask him to negotiate a plea to a reduced amount. She pled guilty because she felt that she had no choice.

Gallacher's solicitor, Matthew Berlow, gave this account of the situation and his conduct:

[6] Mr Berlow said that the appellant had come to the office of his firm and instructed the firm to represent her. On that occasion she filled up legal aid forms. There was a general discussion about her case. He thought that he had seen her on that occasion; but he could not specifically recall it. It was possible that he did not meet her on that occasion. She might have met his partner. He had consulted with the appellant in the street because of the lack of interview facilities at the Dumbarton Sheriff Court annexe, which was being renovated at the time, and for reasons of privacy. He had been told by his assistant, Mr Sinclair, that the appellant had instructed him to negotiate a plea. She seemed not to understand the difference between guilt and mitigation. He told her that there were stacks of evidence against her and advised her to let him negotiate a reduced plea with the procurator fiscal. She instructed him to do so. Her general position was one of guilt. He had negotiated a plea with the procurator fiscal in the restricted sum and the procurator fiscal had agreed to drop the second charge. The figure that was negotiated was an arbitrary figure. There was no rhyme or reason to it. The appellant then gave him instructions to plead to the reduced charge. He also advised her about sentence discounts. Mr Berlow added that nothing that the appellant said to him left him in any doubt that she was guilty. He accepted that he indicated to her that he was considering withdrawing from acting for her. He felt that they (sc his firm) were compromised because she had clearly given an indication to Mr Sinclair to negotiate. When asked if he had made clear to her that she would be on her own, he said that he did not know if he had used those words, but that he had probably said that she would have to represent herself that day and then find new solicitors. When asked if it was possible that she took what he said to her to mean that she had to plead guilty or look after herself, he replied yes, and that that was correct from a professional point of view.

I have no idea who Ms Gallagher is and cannot speculate on her situation. That she was put in this situation by the man meant to be representing her legal interests is scandalous. It is easy enough to imagine oneself in her place, disorientated by a bemusing edifice of law and lawyers, not much bothered about you or your understanding, your attempted gauche exculpations. In a study of an English Crown Court, Paul Rock suggests that a different sense of time predominates for professional lawyers and judges - accused persons, witnesses and complainers. For the lawyers, the daily churn makes for a cyclical apprehension of time, day after day  spent dealing with similar matters, similar disposals. For the second group, coming to Court generally does not assume this cyclical form. Their experience of crossing the threshold of Law's Temple is embedded as an episode in life's linear account of time's passage. Witnesses wait to take the stand, give their evidence, and then cease to be a witness. They have little in the way of the criminal lawyer's eternal return. The grim fact is that many, many accused persons will experience "justice" in a manner very similar to that complained of by Ms Gallagher. The hurried scurrying of insiders, all significance, the alien shuffling of papers, the discomfort of being a stranger in a strange place, surrounding by professionals who seem to know what is going on, but don't let on. Yet, exceptionally, the Court accepted Ms Gallacher's argument. And quite right too. Said that Lord Justice Clerk Gill, in his usual assiduous, judicial way...

[11] It would be unfortunate if in deciding this appeal we had to attempt to resolve the conflicts in the evidence of the appellant and Mr Berlow, particularly since Mr Berlow was not represented in these proceedings for his own interest. I think that that course is unnecessary in the circumstances. From the evidence that we have heard there are, I think, five indisputable points. First, there is no direct evidence that before the day of the hearing the appellant had ever evinced a desire, orally or by letter, to plead guilty. Second, it seems to be accepted by Mr Berlow that, as the partner dealing with the appellant's case, he had no meeting with her to discuss the case, and may not have met her at all, before the day of the plea. Third, Mr Berlow did not give his critical advice to the appellant to plead guilty until the morning of the hearing, and then only minutes before the case was due to be called. Fourth, he gave this advice in a conversation on the pavement of a main road that was busy with traffic and passers-by. Fifth, he gave the advice with the clear and overt warning that if the appellant did not accept it, he would withdraw from acting and leave her to represent herself that day before the sheriff.

These circumstances, said Lord Justice-Clerk Gill, were "demonstrably prejudicial to the appellant", the on the hoof persuasion to plead guilty "unsatisfactory on any view" and concluded that "the appellant did not have a proper opportunity to consider the implications of the step that she was being pressed to take. In my view, the circumstances were clearly prejudicial to her. The conviction must therefore be regarded as a miscarriage of justice." Given the facts, this is a remarkable, humane judgement by the Court. It also has the paradoxical result that by zealously extorting his client to plead guilty, Mr Berlow has managed to have her conviction quashed. Let nobody argue that law lacks a sense of irony.


  1. Unfortunately, your post here proceeds on the assumption (reasonable from the terms of the opinion, but incorrect) that the attempt to withdraw the plea was made after sentencing. In fact, Mrs Gallagher sought to withdraw the plea before sentencing, but this course of action was held to be incompetent in the Sheriff Court.

    Immediately upon sentencing, a Note of Appeal was presented setting out in detail, with reference to authority, the reasons why the conviction should not stand> tThese were ultimately accepted by the court.

    Of course, had Mrs Gallagher lived, the Crown would have sought authority for a fresh prosecution, and the case would have proceeded to trial in the usual manner.

  2. I very much appreciate the background detail you've been able to provide here, the_voice_of_reason. I'm sure people will bear your comments in mind in relation to the foregoing.

    As I noted in the body of the post, I have no information beyond the opinion on the specific background of the Gallagher case. Helpful then, you've been able to set this misapprehension right. In particular, I was not aware that the appellant is now deceased. That said, from my perspective much of the interest of the case derives from the facts narrated, rather than the precise legal rule espoused.

  3. The facts of the case were, as you say, disturbing. Of course, the High Court had the advantage of a report from the sheriff who heard argument on the withdrawal of plea issue (who was not the sheriff before whom the plea was tendered, and who ultimately passed sentence).

    I had rather assumed, given that it was reported on the BBC and in other media, and given that shec was listed as "Deceased" on the advising roll, that you knew of her death. The case was originally set down for an advising on 14th May, but Mrs Gallagher died at her home the day before.

    Incidentally, you might like to look into events that preceded Lord Gill's remarks last week about the firm in Dundee that forgot to instruct counsel in a rape appeal, and did not have the basic common sense to turn up in person to admit their error and have counsel grovel on their behalf; the said firm has "form" berfore the L J-C

  4. A research fail by yours truly, it would appear! For those interested, the BBC article on the Gallagher case is here.

    The Dundee firm which the_voice_of_reason makes discreet reference to is called Caird & Vaughan. The BBC have this report on what happened, including reference the unsigned letter which they sent to the court, described as "gross discourtesy" by Lord Justice-Clerk Gill.

    To complete the helpful links for the curious, I fancy it is the case of Clifford James v. H.M. Advocate you are referring to the_voice_of_reason, visa vie Caird Vaughan's "difficulties" in the Appeal Court.

  5. I shall, in the circumstances, confine my observations to the very obvious (to my mind) one that when one's firm has been given an utter judicial kicking, including the words "Their deficiencies related to matters that would been obvious to any counsel or solicitor of average competence", I would be taking steps to ensure that every single appeal my firm was involved in for the rest of my career would be prepared in a manner that could not, other than for utterly exceptional reasons, attract reproach.

  6. she had indicated a week earlier to mr sinclair that she was guilty but disputed the sum. Mr sinclair had the case continued one week for me to negotiate with the crown regarding the sum.Negotiations took place and one week later at a continued first diet she indicated that she did not want to plead guilty and did not understand the charge. I correctly advised her that in the circumstances i may have to withdraw from acting given that she was varying her instructions. She had had more than one consultation with the firm and had spoken with me prior to court and spoken to Mr Sinclair and also at a previous court hearing in relation to a failure to appear matter had spoken to Mr Beltrami. After a discussion about the charge during which it was clear she understood it and a discussion about the operation of sentence discounts she agreed to plead guilty. She then failed to appear at court for sentence some weeks later. Incidentally, I consulted with her outside the court as it was more private on the pavement outside than in the packed corridors of the temporary court building. If anyone on a passing bus was privy to our consultation then they had to a)be an expert lip reader at 30mph and b)give a damn. This lady told me she was guilty, indicated that she wanted us to negotiate a lesser sum, had various consultations, understood fully what the charge entailed and then lied again in the High Court.

  7. Apologies for missing your comment, Anonymous (but I assume from what you've written that you are the Mr Matthew Berlow in question). This is a post of some antiquity and I wasn't anticipating any new remarks on it. As should be plain, my own knowledge of the case is limited to the case report and coverage in the media. As your former client is now deceased, its beyond her power or mine to effect any further discussion of what truly transpired. No doubt visitors finding this will attend to your side of that story.