ROBERT GARROW v. HER MAJESTY'S ADVOCATE

Act.: M. Scott; Drummond Miller (who did not act for the appellant at his trial)

[1] The appellant is Robert Garrow who was convicted of rape at the High Court at Aberdeen in July 1997. He has appealed against conviction and, although originally other grounds of appeal were lodged, the current grounds allege that a miscarriage of justice occurred due to inadequate representation and preparation of his defence. In presenting the appeal, Miss Scott accepted that the relevant law was to be found in Anderson v. H. M. Advocate 1996 JC 29 .

[2] We should mention in passing that the appellant had lodged a devolution minute on the basis that the delay in hearing the appeal had given rise to a breach of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. In view of our decision on the substantive appeal, however, we did not invite argument from the Advocate Depute on that point and it is unnecessary for us to deal with it.

[3] At his trial the appellant was represented by a solicitor advocate instructed by the firm of solicitors in which he was a partner. Both the firm and the solicitor advocate were invited to comment on the grounds of appeal and they did so in letters dated 29 and 30 March 1999 respectively. The letters are in similar terms. Miss Scott accepted, and indeed relied on, the account of events given in those letters.

[8] In evidence the appellant said that the complainer had made a pass at him to which he had responded to the extent of inserting two fingers "ever so slightly" into her private parts but that he had not gone any further since it did not seem right. In cross-examination he put forward an elaborate theory, involving the alleged theft of a mobile telephone, as a possible explanation of why, on his version, the complainer would have lied about what had happened.