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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lord Nimmo Smith
Lord Philip
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[2007] HCJAC 75
Appeal No: XC732/05, XC213/05 and XC406/05
OPINION OF THE COURT
delivered by THE LORD
JUSTICE GENERAL
in
APPEALS
by
(1) JOHN McDONALD
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
(2) BRENDAN CHRISTOPHER DIXON
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
and
(3) RICHARD BLAIR
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act:
Shead, Mitchell; Capital Defence,
Edinburgh (McDonald): Shead,
McKenzie; Capital Defence, Edinburgh (Dixon):
Shead, Mitchell; Ian McGarry,
Glasgow (Blair)
Alt:
Lord Advocate, Wolffe, Q.C., A.D.;
Crown Agent
Alt:
Advocate General, Howlin; Office
of the Advocate General
21 December 2007
Introduction
[1] The
appellant McDonald was on 1 September 2005 convicted after trial of murder and
of various firearms offences. He has appealed
against that conviction on a single ground:
that no reasonable jury could, having regard in particular to the nature
and quality of the evidence relied upon by the Crown as corroboration for the
identification of the appellant as the perpetrator, have convicted him. Leave to appeal on that ground was granted on
28 March 2006.
[2] The
appellant Dixon was on 1 March 2005 convicted after trial of murder and
of attempting to defeat the ends of justice.
He has appealed against conviction and sentence. His grounds of appeal against conviction are,
in summary, (1) that the trial judge wrongly refused a submission that there
was no case for him to answer, (2) that the directions given by the trial judge
in relation to corroboration were misconceived, (3) that the trial judge failed
to direct the jury in relation to certain forensic evidence said to raise a
reasonable doubt about the appellant's guilt, (4) that the trial judge
displayed apparent bias in his treatment of certain witnesses led in support of
the appellant's special defence of alibi and (5) that the trial judge failed to
direct the jury that, if the evidence led in relation to the appellant's alibi
raised with them a reasonable doubt, they were bound to acquit. Leave to appeal on those grounds was granted
on 14 February 2006.
[3] The
appellant Blair was on 29 April 2005 convicted after trial of
murder. He has appealed against
conviction on grounds which may be summarised as follows: (1) that the trial judge erred in law in
failing to allow a photograph and an associated list of additional witnesses
for the defence to be lodged late (these bearing upon the identification of the
appellant as the perpetrator), (2) that the trial judge erred in refusing to
sustain a submission that the appellant had no case to answer and (3) that the
trial judge had wrongly, in assessing the sufficiency of the evidence against
the appellant, taken into account a statement admitted in evidence under
section 259 of the Criminal Procedure (Scotland) Act 1995. Leave to appeal on those grounds was granted
on 22 November 2005.
[4] In
each of these appeals the appellant has lodged a petition for recovery of
documents. In the cases of McDonald and Dixon the calls in the specification are
identical. They are in the following terms:
"1. All material in the possession of or
under the control of the Lord Advocate which ought to have been (and ought to
be) disclosed in terms of his [sic] obligation
under Article 6(1) when read with section 57(2) of the Scotland Act 1998.
2. Failing principals, drafts, copies or duplicates of the
above whether in paper or in digital form."
In the cases of Blair the calls are
for documents related, broadly, to the mental health of the witness whose
statement was admitted under section 259.
(Counsel for another appellant (Grant) was allowed in the course of the
hearing to withdraw a petition for recovery lodged on behalf of his client.) Associated with the petitions for recovery of
documents in the cases of each of McDonald and Dixon is a devolution minute lodged in
June 2007. In the case of Blair a
devolution minute was tendered on the last day of the hearing of these appeals.
Submissions for the appellants
[5] Mr.
Shead, who appeared for the remaining appellants, presented a wide-ranging and
essentially unstructured submission. We
endeavour to summarise it. He made it
plain at the outset that, although petitions for recovery of documents had been
framed and lodged on behalf of each of his clients, these petitions were both
inappropriate and unnecessary. It was
maintained that each appellant had the right of disclosure of "what was
necessary to meet the requirements of Article 6(1) of the Convention". Performance of that duty was a matter for the
Crown, which had possession (or the means of obtaining possession) of all the
material. The Crown had in the past
inappropriately sought to divide responsibility between itself and the police
or other agencies. But that division
could not survive the decisions of the Privy Council in Sinclair v HM Advocate 2005 SC (PC) 28 and Holland v HM Advocate 2005 SC (PC) 3. The issues were whether the appellants had
had a fair trial and whether, in the absence of proper disclosure, the appeal
proceedings could comply with Article 6.
The Crown, it seemed, accepted that the appellants had not had a fair
trial at first instance - for example, there had not (as required by Sinclair) been disclosure of all prior statements of Crown witnesses.
[6] In
McLeod v HM Advocate (No. 2) 1998 JC 67 the Crown had accepted before the
court that it had a duty of disclosure.
But in practice it had never discharged that duty. McLeod,
which was concerned with the common law, was, however, no longer relevant, as
the decisions in Holland and in Sinclair, which were concerned with
Convention rights, bound this court.
These decisions were concerned with important but limited aspects of the
duty of disclosure. The mechanism
envisaged by McLeod (applications by
the accused in the form of a petition for recovery of documents or other material)
was unsatisfactory. It was derived from
civil proceedings and was beset with inappropriate concepts, such as a "fishing
diligence". In most criminal cases the
accused would, in the nature of things, not know what material in the hands of
the Crown or its agencies would be helpful to his case or would undermine the
Crown case. The Lord Justice General in McLeod had been wrong to describe
procedure by commission and diligence as the
procedure for securing disclosure; it
was only one of several mechanisms. In
cases such as the present the appropriate course was for the court to make,
under section 6 of the Human Rights Act 1998, an order for disclosure on the
Crown as a public authority. The court also
had statutory powers (under the Criminal Procedure (Scotland) Act 1995) and powers at common law
to enforce the Crown's obligation, though the Crown had an obligation ex proprio motu to perform that duty.
[7] Difficulty
was caused because the Crown did not have in place any duly recorded practice
as to how the obligation of disclosure had, in any particular case, been
addressed and complied with. In Sinclair the Crown had said that it had
issued a Practice Statement on Disclosure but made it clear that this was only
to comply with the procedural requirements following the "Bonomy Reforms" and
not because it was implementing the performance of its duty of disclosure. Any such Practice Statement was entirely
defective as the Crown did not have a proper understanding of what it was
obliged to disclose and an accused/appellant could not scrutinise the
performance of the obligation of disclosure.
Until at least the decision in Sinclair
it had not been the practice of the Crown to disclose prior written statements
of witnesses. There had been no
discussion before the Privy Council in Sinclair
or Holland about the appropriateness of
commission and diligence procedure; but
the way that procedure operated in practice tended to undermine, rather than to
secure discharge of, the obligation of disclosure.
[8] In
the present case there was no suggestion that material was being withheld on
the basis of public interest immunity.
The process of due disclosure must take place at the trial stage, which
admittedly had in these cases not been done.
At the appeal stage the defect was irremediable. Article 6.3 was concerned with preparation in
advance of trial. Article 6.1 was
breached when material evidence was not disclosed. In some cases disclosure at the appeal stage
of previously undisclosed material evidence might be too late; on any view, failure to disclose such
material at the appeal stage was an obvious breach giving rise to an unfair
trial. An unfair trial automatically
gave rise to a miscarriage of justice.
The convictions could not stand.
[9] There
was an obligation on the Crown to organise its arrangements so as to comply
with disclosure requirements under Article 6 (Warnes v HM Advocate 2000
SCCR 1127 at para. [10]). In England and Wales there was a system, which included
appointment of a "disclosure officer", to supervise compliance with disclosure
obligations. There was a system of lists
and schedules. There was also a
Disclosure Manual prepared by the Crown Prosecution Service. After Holland and Sinclair a request had been made of the Crown by the Chairman of
the Faculty of Advocates Criminal Bar Association for disclosure of its
operative rules; but no substantive
reply had been received. The requirement
of disclosure was not restricted to particular classes of material such as
witness statements, previous convictions and "unused" forensic materials. It was the content of documents and other
materials which was significant. In some
cases information contained on HOLMES (Home Office Large and Major Enquiries
System) would fall to be disclosed.
[10] The
Crown, after McLeod and prior to Holland, had adopted in relation to previous convictions the
procedure described in Holland at para. [67]. A major flaw in that was that it was
invidious to leave to prosecutors the task of what previous convictions were
relevant and what were not. Any
reasonably competent counsel for the defence would wish to have access to all
previous convictions of Crown witnesses.
The test adopted by the Crown had been emphatically and robustly
demolished by Lord Rodger of Earlsferry in Holland (para. [75]). If disclosed previous convictions were not
relevant, they simply could not be deployed by the defence. Holland had illustrated that material information might be unearthed
at the stage of Crown precognition - information which did not readily fall
into any category. Moreover, there was
no way in which the defence could check as to what had (or had not) been
supplied by the police to the prosecutors.
Reference was made to Gair v HM Advocate 2006 SCCR 419. The Crown appeared there, as here, to have
sought to distinguish between the duty of disclosure at the trial stage and at
the appeal stage. In Gair the disclosure of prior statements
may have been made not by the Crown but in the course of the Commission's
enquiries. But the duty (including that
of disclosing all prior statements of all Crown witnesses - Holland) applied equally to the appeal stage as to the trial
stage. Reference was made to Johnston v HM
Advocate 2006 SCCR 236 (where the failures of disclosure had been on the
part of the police); there was under
present arrangements a potential for such failure to occur on a daily basis.
[11] If
the Crown persisted in its apparent contention that it had no obligation to disclose
at the appeal stage material which it had had an obligation to disclose (but
had failed to disclose) at the trial stage, the appellants' contentions were
that they had been denied a fair hearing.
The court could either simply quash their convictions or compel the
Crown to comply with what was a continuing and undischarged obligation. The historical development of disclosure
arrangements in England and Wales had been described by Lord Bingham
of Cornhill in R v H and C [2004] 2 AC 134. There were grounds for optimism that
arrangements along the English lines would comply with the requirements for a
fair trial. The types of material,
disclosure of which would be important, were illustrated by R v Adams [2007] EWCA Crim 1. These
included material held under the HOLMES system;
it could reasonably be assumed that such material would be significant
for the appeals of the present appellants.
The European authorities clearly regarded disclosure at the stage of
appeal as potentially significant (Dowsett
v United Kingdom, 24 June 2003, Application No. 39482/98). In McClymont
v HM Advocate [2006] HCJAC 47 the
Crown had (rightly) recognised that its failure to disclose a prior statement
at the appropriate stage had resulted in a miscarriage of justice. The Crown's position, as disclosed in its
Outline Submission, was clearly unsound.
[12] As
regards the contentions there advanced, the appellants, in the light of Holland, did not require a specification
of documents, the obligation to disclose them being on the Crown; it was unnecessary that a ground of appeal be
advanced in relation to disclosure; the
Crown apparently conceded that relative statements had not been disclosed at
the trial stage; the Crown had
misunderstood its obligations set out in McLeod; the true issues at the trial could have been discovered
had due disclosure been made; McLeod had been overtaken by Holland and Sinclair; the appeal process
was not compliant with Article 6 when due disclosure, not earlier made,
was not made at the appeal stage; the
petitions were not "fishing", it being clear that what was being sought was
performance of the duty under Article 6;
finality was not an issue here, the true issue being whether the Crown
was in continuing breach of its duty of disclosure; there were materials which remained obviously
disclosable, such as that on the HOLMES system;
the purpose of the disposal sought was to secure that the trial
(including the appellate proceedings) was fair.
It was unnecessary to enter into any specifics at this time, including
any of the specific calls made in any of the petitions. The appellants' position remained that the
petitions were unnecessary.
Submissions by the Advocate General
[13] The
Advocate General addressed us under five chapters. First, as regards the obligation of
disclosure incumbent upon the Crown, reference was made to the test in McLeod, and in particular to the
observations of the Lord Justice General at page 79. For the purposes of his submissions, the
Advocate General took the obligation to relate to evidence which was within the
control of the Crown. In McLeod it was suggested that the
obligation concerned "all material evidence".
The case of Sinclair appeared
to define all police statements as material per
se (especially per Lord Rodger at
para. [49]), suggesting there is a duty
on the Crown to disclose any such statements in order to meet its obligations
in terms of Article 6. The Advocate
General did not suggest that McLeod
had been overruled by Sinclair, or
that there was anything substantially different in the principle put forward in
the latter case. While McLeod had not been wrongly decided, the
decision now required to be viewed through the prism of Article 6 - see Lord
Hope at para. [29]. The Advocate General cited Edwards v United Kingdom (1992)
15 EHRR 417 (para 36), Edwards and Lewis v United Kingdom 2003 BHRC 189
(para 52) and Rowe and Davis v United Kingdom (2000) 30 EHRR 1 (para 60), in
which the obligation of disclosure is described as applying to evidence "for or
against the accused". Jasper v United Kingdom (2000) 30 EHRR 441, para 51) also
outlined the approach which should be adopted.
While that case contained detailed discussion of the English approach to
disclosure, it was helpful for the purposes of the present debate. In this regard, the House of Lords in R v
H and C (para 14) had suggested
that the "golden rule" was that any material which weakens the defence case or
strengthens that of an accused should be disclosed. This appeared, on the authorities, to be a
principle of general application, which could be carried forward to Scots
law.
[14] Secondly,
the Advocate General submitted that there were three possible situations in
which the principles of disclosure outlined in these cases might arise: the
first was where all relevant material was disclosed, in which case there was no
incompatibility with Article 6; the second was where there was material
information known to the prosecutor which had not been disclosed, in which
case, disregarding any question of public interest immunity, it could be argued
that there had not been a fair trial; the third was where the Crown could not
say whether all material information had been disclosed, in which case all that
could be said was that there may not have been a fair trial. It was only with reference to the third situation
that Mr. Shead could advance his arguments for the appellants. It could not positively be stated that there
had not been a fair trial, as it was not yet known whether material information
had not been disclosed. The Advocate
General submitted that there was a subtle difference between disclosing that
certain evidence was in the possession of the Crown (for example, by providing
schedules of material held) and the subsequent production of that material. Many of the authorities appeared to conflate
these issues. It was not simply a
question of the Crown handing over all material which it held to the defence;
that could lead to the extensive delays seen in the criminal justice system in England and Wales in the early 1990s. Nor was it a question of providing an
analysis of all the information held.
Rather, the Crown should provide a list, under various heads, of
material in its possession. In an
adversarial process the defence had to be given an opportunity to comment.
[15] Thirdly,
it was submitted that the guarantee of a fair trial was absolute at all stages
of a criminal case, including appellate proceedings. Edwards
(paras 34 to 37) stressed that non-disclosure could be remedied at a later
stage, and that this opportunity ought to be taken, if afforded. Disclosure at the appeal stage might
therefore rectify non-disclosure at trial.
However, the question remained as to the appropriate mechanism for
ensuring that the obligation of disclosure was discharged. In Rowe
and Davis (paras 63 and 64), the European Court of Human Rights indicated
that the decision on whether certain information should be disclosed at first
instance could not rest solely with the Crown.
While that case concerned public interest immunity, the principle could
be extended to the circumstances of the present case. A process of "iteration" might be
appropriate.
[16] Fourthly,
the Advocate General addressed the circumstances of the present appeals. The immediate issue was whether there should
be an order for the recovery of documents.
The argument against such an order was that there had been inadequate
specification of the information requested, and that the request was not linked
to any specific ground of appeal. On the
other hand, as matters stood, the Crown monopolised the decision on what was
material for the purposes of disclosure.
Rowe and Davis suggests that
this should not be the case. If that was
correct, the supervision of the court by an appropriate mechanism was
required. In England, a disclosure list containing
details of the information held by the Crown was sent to the defence. The provision of such a list should be the
minimum requirement in Scotland of the Crown's duty of
disclosure. Lord Coulsfield's report
provided some assistance on the categories of evidence which might be involved
in such a list. While ECHR jurisprudence
did not suggest that there was a right to obtain all the evidence involved in a
criminal investigation, it did suggest that all material information should be
disclosed. It was conceded that the
court may not wish to provide guidance of general application in these appeals,
given the present state of flux in this important area of law. It was suggested that an appropriate order
might be that the Crown indicate what information it had in its control, and
what, if any, of that it regarded as non-disclosable. This would provide a basis for further progress
in the present appeals.
[17] Finally,
the Advocate General made brief submissions in relation to section 57(2) of the
Scotland Act 1998. It was submitted that
Mr. Shead had a difficulty in insisting that matters should be brought to an
end forthwith. The act of the Lord
Advocate identified was seeking a conviction at first instance or supporting
the conviction at appeal. However, it
could not yet be said that there had in fact been non-disclosure of material
evidence. Edwards suggested that any incompatibility with Convention rights could
be remedied at the appellate stage.
Therefore, at most, all that could be sought at this stage was
disclosure.
Submissions for the Crown
[18] With reference to the
submissions advanced by the Advocate General with regard to Rowe and Davis, the Lord Advocate
submitted that the issues of public interest immunity involved a different
test, which was not engaged for the purposes of the present appeals.
[19] Since
the decisions in Holland and Sinclair in May 2005 it had been clear to
all practitioners that a different practice from that promulgated in the case
of McLeod had been adopted; in
addition to the principles established in the latter case, previous convictions
and witness statements were now made available routinely to the defence. As this change in practice had been patent to
all criminal practitioners, any identified breach, or potential breach, of an
accused's Article 6 rights ought to have been raised at that time, or as soon
as practicable thereafter. The
appellants were barred by acquiescence from now pursuing any devolution
issue. If the defence wished to raise a
devolution minute, rule 40.2 of the 1996 Act of Adjournal made clear the
time-limits within which this had to be done.
That could only be departed from on "cause shown". If the Crown had failed to hand over
documents from the outset, the appropriate remedy ought to have been sought at
that stage. No cause had been
shown. The "grounds" in the devolution minutes
were heavily formulaic.
[20] This
was not a technical objection; rather it was part of the Crown's overall
reliance on the important principle of finality in criminal proceedings. Moreover, this approach was consistent with
the protection of an accused's Convention rights; it was in an accused's
interests that such matters be raised as soon as possible. The interests of victims and of witnesses in the
finality of proceedings would also be undermined if incremental grounds of
appeal were permitted outwith the parameters of statute and without cause
shown. Again, this was supported by ECHR
jurisprudence (Doorson v The Netherlands (1996) 22 EHRR 330). Thus the court
ought to take into account, for example, the Article 8 rights of witnesses, as
well as the public interest, in deciding whether matters should be considered
at the appellate stage which might properly to have been considered at
trial. The principle of finality had
also been referred to in Robertson v Frame 2006 SCCR 151, where it was
suggested that the fact that an appeal had been taken on a different point
could be one aspect of the wider picture in determining whether there had been
acquiescence (para [38]).
[21] None
of the grounds of appeal in the present cases related directly to a failure to
disclose in terms of Article 6. The Lord
Advocate accepted that the duty of disclosure continued at any appeal
proceedings, and that the obligations outlined in McLeod persisted at that stage (Hoekstra
v HM Advocate (No. 5) 2001 SCCR
121). However, that did not involve an
obligation on the Crown to reinvestigate cases decided since May 1999 in which
statements may not have been
disclosed. There were over a million
cases (solemn and summary) which had been decided since then at first
instance; there were 600 live appeals. An obligation in those terms would undermine
the principle of finality and certainty.
Nevertheless, the duty to disclose material information which might come
to Crown's attention in such cases was clear and would be complied with.
[22] In
McLeod, Lord Justice General Rodger had
made it clear that, when requesting the recovery of documents, the petitioner
must specify the basis upon which the haver was to produce them (page 80D-E). The court would not grant
such orders unless it was satisfied that they would serve a proper purpose and
that it was in the interests of justice to do so. The Privy Council in Sinclair had considered the case of McLeod, which continued to provide assistance where disclosure was
sought. This approach was also supported
by Bendenoun v France (1994) 18 EHRR 54, where it was held that specific reasons might be required for the
production of documents. Any order made required to serve a
purpose in the present appeal proceedings.
That had not been demonstrated.
[23] At
the appellate stage the defence were in a different position from their
position at trial, given that evidence had been concluded. The impact of any non-disclosure must depend
on the facts and circumstances of each trial and, in particular, the outcome of
that trial. Reference was made to Kelly v HM Advocate 2006 SCCR 9.
[24] The
changes in practice engendered by Holland and Sinclair also
required a change in culture from the defence.
The information it held should be made known to the Crown, to allow the
latter's obligations to be met. This
could be in the form of a letter at precognition stage. If the matter were only to arise at the trial
stage, the Crown could seek an adjournment.
The right of the defence to precognosce witnesses in Scotland was relevant here. It went far beyond what is permitted in many
other jurisdictions. The Crown could not
be expected to pass on information at the appeal stage which the defence
already had at first instance. While it might
be that, in the absence of legislation, the court could not require the defence
to put forward its line of defence, a failure to indicate that line could have
a bearing on the court's decision as to whether there had been sufficient
disclosure. Caution should be applied
before reliance was placed on ECHR jurisprudence relating to other
jurisdictions. For example, in England even the legal understanding of what
constituted "a police statement" differed from that in Scotland.
[25] Far
from being defensive, the Crown embraced the principle of disclosure. In addition to the report which had been
commissioned from Lord Coulsfield, and the practice statements which had been
issued, there were also internal instructions to procurators fiscal regarding
their duties of disclosure. A disclosure
manual would shortly be made available to procurators fiscal and published. While precognitions (as documents) remained
confidential, it was clear under the Book of Regulations that there was a duty
on procurators fiscal to alert the defence to any material information
discovered as a result of that process.
Supervisory procedures were in place to ensure that this took place,
with precognition officers being directed by legal managers. In more serious cases, Crown Counsel
themselves would take a pro-active role in ensuring that the duties of
disclosure were complied with. In
addition a recent protocol agreed with the police would reduce the possibility
of information being missed, as all relevant information was now forwarded to
the Crown. The Crown was moving towards
the schedule-based form of disclosure referred to by the Advocate General and
was enthusiastic about such a scheme. However,
realistically such a process would take time to implement.
[26] The
checks and balances in the Scottish system included the procedural aspects of the
criminal justice system, such as preliminary hearings and intermediate diets,
and the process of defence precognition previously referred to. Further, the Scottish Criminal Cases Review
Commission provided an additional layer of protection, where an accused
believed that Crown had failed to obtemper its duty of disclosure.
[27] There
was no conceivable system which could completely exclude the possibility of
criminality or negligence in the suppression of evidence. In England and Wales there remained some cases where
problems arose. Moreover, it was not the
case that all material was simply handed over to the defence in that
jurisdiction. The key decision on what
was material was still made by the police and prosecution service. Only relevant information was disclosed. The intention of the Crown in Scotland was to work towards a list of
relevant information held. The duty to
disclose applied to information of which the Crown had knowledge, but it was
accepted that a miscarriage of justice could still result if there was a
failure to disclose information in the control of the Crown, but about which it
did not have knowledge.
[28] The
Lord Advocate also provided information as to the disclosure in fact made
before, during and after the trials of the present appellants.
Response for the appellants
[29] In
response, Mr. Shead submitted that there was no question of acquiescence on
behalf of the appellants. In most of the
recent miscarriages of justice involving non-disclosure, the failure to
disclose was only discovered after the accused had been convicted. Indeed, it was not until all relevant information
had been disclosed that the relevant grounds of appeal could be
formulated. The example of Holland was cited, where the information contained in an observation
made at precognition by a witness had not been disclosed until the eve of the
appeal hearing. In the present cases the
information was required precisely to determine whether there had been a fair
trial. The Crown's submission that the
nature of the duty might change at the appeal stage was not accepted. That was to ignore the fact that the first
line of defence at trial was often to attack the Crown case. That certain action was not taken at the
trial stage might be a direct result of the fact that evidence had not been
disclosed at that time.
[30] The
test of demonstrating "cause shown" was not particularly high and, if
necessary, was met in this case. There
had been no difficulty in previous appeals in such minutes being received. A constitutional right should not be denied
on a legal technicality. Reference was
made to Dickson v HM Advocate 2006 SCCR 637, which highlighted that the starting
point for any plea in acquiescence was the point at which the appellants had
the requisite knowledge to raise the legal issue in question. Disclosure had been recognised by the Lord
Advocate as a "dynamic issue". It was
only once the present appeals had been decided that the accused would know the
legal position regarding disclosure as it applied to their cases.
[31] In
any event, it was not clear that rule 40.2 of the Act of Adjournal was the
appropriate mechanism for lodging a devolution minute in the present appeals;
that referred to a time limit of seven days following service of the
indictment, which was not readily applicable to appellate proceedings. Mr. Shead submitted that rule 40.4, which relates
to "other criminal proceedings", was more appropriate. Reference was made to the decision of this
court in HM Advocate v Montgomery and Coulter 1999 SCCR 959 (pages
968-9), where the court's discretion in receiving devolution minutes was
discussed.
[32] Mr.
Shead did not contend that a failure to disclose any statement meant that there
was a miscarriage of justice per se,
and rejected that interpretation of Holland and Sinclair. The approach to be taken involved two
stages, the first being whether there has been a failure in terms of article
6(3) to disclose information and the second being whether, in the final
analysis, that failure resulted in an unfair trial in terms of Article 6
overall. That had been the approach
previously adopted by this court in Nulty
v HM Advocate 2003 SCCR 378 in
relation to hearsay evidence. Moreover,
a different result would not depend on whether the matter of a fair trial was
considered under the common law or under Article 6; there might, however, be a
difference of emphasis in applying the test, such as the need to identify an
act in terms of section 57(2) of the Scotland Act 1998. In the present case, the act of seeking a
conviction, or subsequently supporting it, was an incompetent act in terms of
that section, if there had not been a fair trial.
[33] Despite
the measures referred to by the Crown, there was no system of disclosure
presently in place which was compatible with the appellants' Article 6
rights. Practice statements did not have
the force of law. The protocol between
the Crown Office and the police, and internal instructions to procurators
fiscal, referred to by the Lord Advocate, primarily concerned statements and
previous convictions. The changes which
had been introduced did not address all of the concerns which had been raised
by the appellants. Johnston v
HM Advocate 2006 SCCR 236 provided an example of the inadequacies of the
present system for monitoring the information ingathered by the police. While it was true to say that no system could
be foolproof, the simple lessons of that case did not appear to have been
learned. The Lord Advocate was still not
in a position positively to confirm that the obligation of disclosure had
actually been complied with in the present cases, only that it could be
presumed to have been.
[34] Reference
was made to paras. 10.24 and 10.25 of Lord Coulsfield's report (pages
44 ff) where forensic material and the police HOLMES 2 system were
discussed. That system already had the
capacity to record sensitive and non-sensitive information gathered during the
course of a case. Importantly, however,
this facility was only available in England and Wales.
It had been designed specifically to ensure that relevant information was
not being missed. It was submitted that
such a facility would be an invaluable tool to the police, the Crown and
ultimately the defence in Scotland in serious cases. The present system was not sufficient to meet
the Article 6 obligations of the Crown, and such a facility would represent a
good starting point for a system of disclosure.
It was not enough to say that statements and previous convictions were
routinely made available to the defence, as other categories of information
could also be of importance; it was the substance rather than the form of the
evidence which was important.
[35] In
the present cases, it was submitted, the Crown required to check what had taken
place in terms of disclosure at the trial stage, and thereafter reconsider
whether that had been sufficient. It was
accepted that there might be some difficulty in determining whether there had
been a breach of an order to disclose all relevant material; if the court had
concerns in that regard, it might consider an order inviting such disclosure to
be made. If this invitation were to be
declined, then there would need to be further submissions regarding the
consequences of that refusal.
[36] While
the issues involved in the present appeal might apply to a large number of
cases, most of these were at summary level.
It was in cases which involved large volumes of paperwork that
difficulties were likely to arise, and most of these would be solemn
cases. Matters therefore required to be
kept in perspective.
[37] It
was not accepted that the process of precognition by the defence provided an
acceptable form of disclosure. In the
case of Sinclair that argument was
put forward. The fact that it was not
addressed in the decision of the Judicial Committee suggested that it was,
however, rejected. Moreover the Scottish
Legal Aid board and the Scottish Executive had reduced funding in this area, on
the basis that precognition was becoming less necessary as statements were made
available. Many defence practitioners found
precognitions of limited assistance, given that police statements ultimately
formed the basis of the Crown case.
[38] Similarly,
it was not accepted that there was any duty incumbent on the defence to
disclose any details of its case, or that the obligation on the Crown might
dissipate in the face of such a lack of disclosure. This had been made clear in the cases of Holland and Sinclair. There was no onus
at all on the defence. The Lord Advocate
had implicitly accepted that point in indicating that there was a duty on the
Crown to disclose any material information which came to their attention, even
where it related to historical cases which had resulted in a conviction. Indeed, this was one of the reasons why it
could not be argued that the defence had acquiesced in relation to this matter.
[39] Mr.
Shead indicated that it was important to recognise what the real position in England and Wales was.
Reference had been made by the Lord Advocate to a statutory duty upon
the defence in England and Wales to disclose details of their
case. That duty, introduced in 1996, had
not proved very effective in practice.
The approach was considered by Lord Coulsfield in his report, but he had
not recommended its introduction in Scotland.
Those consulted in that report seemed to accept that the present system,
whereby notice is given of any special defence, would suffice. Moreover, in England the disclosure process involves a
distinction between "used" and "unused" evidence. It was only once primary disclosure had been
made by the Crown that any statement was required from the defence to justify
additional disclosure. While it was rare
for the courts to become involved in this matter, the mechanisms involved
allowed for such a review to take place.
In Scotland, the main decision was still taken
by the Crown, and this was not satisfactory; it would always be difficult even
for the most experienced prosecutor to see things from the defence
perspective. The minimum that was
required of any form of disclosure in a criminal justice system was that there
existed a means of cross-checking the decision taken by the prosecution in
relation to what was regarded as being material.
Discussion - the test for disclosure
[40] In
McLeod a bench of five judges of the
High Court of Justiciary addressed the nature of the Crown's duty of disclosure
against a contention that, as a matter of principle,
"All statements and
similar material generated in the course of the investigation which led up to
the charges against an accused person should be made available to the accused,
unless there were special reasons why any particular documents should not be
handed over" (Lord Justice General Rodger at pages 62-3).
The court firmly rejected that
contention. It did so prior to the
incorporation into domestic law of the European Convention but with clear
reference to and reliance upon its provisions (and in particular Article 6) and
to cases, including Edwards v United Kingdom, decided by the European
Court with reference to it. Discussing
that case the Lord Justice General stated (at page 75E-F):
"What the court regarded
as a requirement of fairness was that the prosecution authorities should
disclose to the defence 'all material
evidence for or against the accused' (emphasis added)."
He made it clear that the obligation
of the Crown prior to and in the course of the proceedings was to disclose what
was in fact material, not all possibly material evidence. At page 79F-G he said:
"Our system of criminal
procedure therefore proceeds on the basis that the Crown have a duty at any
time to disclose to the defence information in their possession which would
tend to exculpate the accused."
Later, having at page 80C-D observed:
"Like others in the past
I am conscious of the difficulty of formulating the test which the court should
apply when asked for the production of documents in a criminal case ... ",
he added that the circumstances in
which the court would make an order for recovery were where it was satisfied
"that an order for the
production of the particular documents would be likely to be of material assistance
to the proper preparation or presentation of the accused's defence."
Lord Justice Clerk Cullen emphasised
that the requirement derived from the Convention "relates not to all evidence
but to 'all material evidence' for or against the accused." (page 81H).
Lord Hamilton described the
"responsibility to inform" as arising
"where the Crown has in
its possession and knowledge material which is likely to be of real importance
to any undermining of the Crown case or to any casting of reasonable doubt on
it."
Lady Cosgrove and Lord Nimmo Smith
agreed with the Lord Justice General.
[41] The
formulations quoted are not identical but are nonetheless not at variance as a
matter of substance. Both the Lord
Justice General and the Lord Justice Clerk emphasised that the evidence to be
disclosed must be "material", an expression derived from Edwards. If one were to ask
"Material for what?", we doubt whether the Lord Justice General and the Lord
Justice Clerk would have demurred to that being such as
"is likely to be of real
importance to any undermining of the Crown case or to any casting of reasonable
doubt on it".
They might have added the corollary
that the material in question included any which was of positive assistance to
the accused. The only possible difference
is that Lord Hamilton described the Crown's responsibility to inform as being
limited to what was within the knowledge of the Crown. We shall return to any difference in that
expression later.
[42] In
Sinclair Lord Hope (at para [16])
observed under reference to McLeod:
"It had been acknowledged
for a long time in the Book of Regulations for the Procurator Fiscal Service
that the Crown had an obligation to disclose any information which supported
the defence case and that this duty extended to information which supported any
known or statable defence or which undermined the Crown case."
Lord Hope did not there suggest that
the obligation to disclose as long formulated in the Book of Regulations was
erroneous. Rather, having commented on
the change of policy by the Crown in relation to previously claimed
confidentiality in respect of police statements, he observed at para. [21]:
"The events of this case
[Sinclair] call into question the
manner the Crown has been performing its admitted duty to disclose any
information which supports the defence case or undermines the case for the
Crown in a way that the issue which was before the court in McLeod did not do."
His Lordship did not suggest that the
"admitted duty" was different from the actual duty. The "subsisting duty" was reiterated at
paragraph [24]. At paragraph [27] Lord
Hope referred, without adverse comment, to the formulations of the duty
advanced by Lord Justice General Rodger and by Lord Hamilton but added:
"But, as the court could
do no more than give general guidance on this issue, the precise limits of this
duty remained unclear. It was left to
the decisions of individuals on a case-by-case basis as to whether the content
of a statement by a Crown witness fell within this broadly defined category."
The concern accordingly was not about
the nature and scope of the obligation but that its "precise limits ... remained
unclear". What was identified in Sinclair was that the approach of
leaving to individuals decisions as to the disclosure of police statements
whose significance might not be appreciated at the relevant stage ran the risk
of there being withheld statements which could in preparation for or at the trial
have been of material assistance to the accused.
[43] Lord
Hope then referred to the change of practice brought about by the reforms
proposed by Lord Bonomy, observing:
"The change in practice
recognises that the primary rule is that all witness statements, other than
precognitions, in the possession of the Crown must be disclosed." (para [28]).
In the following paragraph he stated
that in the event of a commission and diligence being required:
"McLeod will continue to provide the guidance that is needed as to
the approach that should be adopted ... ".
His Lordship then went on to consider
the Convention right under Article 6 and its application in the circumstances
of that case. Nowhere in that section did
he suggest that, against the incorporation of the Convention, McLeod was no longer relevant to the
issue of the nature and extent of the duty of disclosure. Rather, in our view, he endorsed the
formulations there advanced as accurately reflecting it. The "primary rule", in relation to
statements, expressed by Lord Hope, that "all witness statements, other than
precognitions, in the possession of the Crown must be disclosed" does no more
than refine at the edges the scope of the duty to disclose. Arguably, it might be thought, it goes too
far since at least some witness statements may not contain anything that is
"material" in the relevant sense. But in
the interests of ensuring that nothing of that category of evidence is
inadvertently overlooked, it is understandable that the duty has in that
respect been formulated in the way it has.
[44] Lord
Rodger, agreeing with Lord Hope on the general issues, made certain
observations on the particular circumstances of the case, concluding that, when
the witness Ms Ritchie gave in evidence a different account from that which had
been given in her initial statement to the police, from that moment onwards
that statement constituted "material evidence for ... the accused" and that its
non-disclosure gave rise to a breach of Article 6 (para. [44]). At paragraph (48) he said:
"More generally, the
statements of all the witnesses in the list attached to an indictment or in any
supplementary notice served under section 67 of the Criminal Procedure (Scotland) Act 1995 must contain material
evidence against or, in some cases, in favour of the accused. Similarly, if the defence give notice that
they intend to lead a witness and the Crown have a statement from him, then
that statement is likely to contain material evidence for the accused."
These general statements appear to
proceed on the basis, which is at least prima
facie warranted, that persons do not appear as witnesses in such lists
unless they are thought to have something of importance to say at the trial of
the accused. At paragraph [49] Lord
Rodger continued:
"It follows that the
police statements of all the witnesses who are to be called at the trial are to
be regarded as containing material evidence either for or against the
accused. The Crown are, accordingly,
under an obligation, in terms of Article 6(1), to disclose their statements to
the defence ... For the avoidance of doubt, the Crown's obligation of disclosure
as described in McLeod v HM Advocate (No. 2) should be understood
as requiring the disclosure of these statements. It follows that, in so far as the Crown
Practice Statement on Disclosure (November 2004) requires the Crown to provide
the statements of these potential witnesses, it can properly be regarded as
fulfilling this aspect of their obligation of disclosure under Article 6(1)."
Again there was no departure from the
general formulations in McLeod; rather, an endorsement but specific refinement
of them. The other judges agreed with
Lord Hope and Lord Rodger.
[45] In
Holland Lord Rodger referred without
qualification to his own and to Lord Hamilton's observations in McLeod as to the formulations of the
duty of disclosure. Neither party
quarrelled with those formulations (para. [65]). In dealing with the specific matter of
previous convictions of witnesses, Lord Rodger observed that
"It is obvious that a
reasonably competent defence agent or counsel, considering how to approach the
examination or cross-examination of a witness, would wish to know whether the
witness had any previous convictions and, if so, their nature."
A scheme which did not provide
automatically for disclosure of that material was " ... deeply
flawed". In these circumstances
disclosure of such convictions fell within the scope of the duty of disclosure
of material evidence. Again, that
practical rule involved no more than a refinement or particularisation of the
general principle laid down in McLeod.
[46] Lord
Hope agreed with Lord Rodger, confining his observations to the particular
circumstances of the case. Although he
appeared to agree with Lord Rodger that previous convictions of all witnesses
are disclosable as a class, his observations in Sinclair at paragraph [29] tend to suggest that, in the case of
such convictions, commission and diligence may, at least in some cases, be
required. The remaining judges in Holland agreed with Lord Hope and Lord Rodger.
[47] Accordingly,
in our view, McLeod, subject only to
the specific refinements laid down in Sinclair
and in Holland, remains the guiding authority in
Scots law on the test for the extent of the Crown's duty of disclosure. These refinements are truly to be seen as
applications of McLeod rather than
departures from it. Mr. Shead offered no
alternative formulation of the duty of disclosure. His submission amounted in substance to the tautological
proposition that the Crown had a duty to disclose what it had a duty to
disclose. That proposition, as we shall explain,
can provide no foundation for an order under procedure by way of commission and
diligence or for any other mandatory order.
We would add that no party before us suggested that the passages we have
quoted from Holland and Sinclair were obiter or otherwise
not binding on this court. We proceed,
for the purposes of this Opinion, on the assumption that they are so
binding; but, on that assumption, they
fall, in our view, to be interpreted in the way we have explained. Special considerations will, of course, arise
where the Crown seeks on public policy grounds to withhold material which would
otherwise be disclosable. But no such
considerations arise in any of these appeals.
[48] We
add in this chapter a further word in relation to the formulations in McLeod.
Lord Hamilton at page 83B referred to material which the Crown has
"within its possession and knowledge".
The other judges made no reference to knowledge. However, "possession", at least in some
contexts, encompasses not only the physical holding of something but knowledge
that one holds it. Possession in the
context of an obligation to disclose should be understood in that sense. However, for this purpose "the Crown"
includes not only the public prosecutor but police forces subject to her direction.
[49] The
test which we have identified from McLeod
appears to be consistent with Strasbourg jurisprudence. In Edwards
v United Kingdom (discussed in McLeod)
it was held that it was a requirement of fairness under Article 6(1) that the
prosecution authorities disclose to the defence "all material evidence for or
against the accused" (para. 36). That
proposition was repeated in Rowe and
Davis v United Kingdom at para. 60, in Jasper v United Kingdom at para. 51 and in Edwards and Lewis v United Kingdom at para. 52. Evidence against an accused which is not to
be relied on by the prosecution need not be disclosed unless specific reasons
are given (Bendenoun v France at para. 52).
The disclosures in fact made prior to trial
[50] Although
the submissions made to us were wide-ranging, it is important to put them in
the context of the charges which each of the appellants faced, and were
convicted of, and in the context of what disclosure was in fact made in advance
of or during the respective trials. Information
as to that disclosure was given to the court by the Lord Advocate in a Written
Submission for the Crown provided shortly before the resumed hearing and
elaborated upon by the Lord Advocate in her address to us. Mr. Shead complained that he had had no prior
knowledge of this information nor an opportunity to check its accuracy. But we are confident that we can properly
rely upon the Lord Advocate to place before us accurate information in that
respect.
[51] The
appellant McDonald was charged with murder by shooting. He was also charged with assault of another
victim, again by shooting. Four
associated contraventions of the Firearms Act 1968 were also charged. He was convicted of all six charges. The essential issue at his trial was whether
the appellant was identified as the
perpetrator of these crimes. The trial
took place after judgment had been given by the Privy Council on 11
May 2005 in
the cases of Holland and Sinclair. In advance of the trial, we were informed,
there had been disclosed to the defence all statements given to the police by
Crown witnesses, subject possibly to the exception of a police witness (PC
Kiernan) who had spoken only to the ingathering of productions. Several witnesses were led in evidence for
the defence. A suggestion was made at
the trial that an important witness (identified for security reasons as
"witness P") might have said to relatives of his, who were not on any list of
witnesses, that he had not in fact seen anything of significance. That matter was investigated by the police with
these relatives. The investigation
disclosed that there was no substance in the suggestion. After discussion with the appellant's senior
counsel, the matter was not taken further.
Prior to the trial the defence had a redacted summary of statements
provided by these relatives. Further
unredacted statements by them were disclosed in the course of the appeal
proceedings.
[52] The
appellant Dixon was charged, along with two others, with the murder of an
elderly woman in her home. He was
convicted of that crime, together with attempting to defeat the ends of justice
by endeavouring to destroy relevant evidence.
The essential issue at his trial was whether the appellant, who had
lodged a special defence of alibi, had been proved to have been party to the
murder. The evidence against him was
largely circumstantial. No evidence was
led on his behalf. The trial took place
before the cases of Holland and Sinclair were heard in the Privy
Council. However, prior to the trial,
the agent acting for the appellant, who had had some difficulty in
precognoscing some witnesses and who at one stage had petitioned the court to
have these witnesses precognosced on oath (a petition subsequently withdrawn),
was given access, at the offices of the procurator fiscal at Kilmarnock, to all
statements and precognitions held by the Crown.
[53] The
appellant Blair was charged, with others, with assault and murder by
stabbing. In the course of the trial the
libel was withdrawn against the co-accused.
The appellant was convicted of that charge. The essential issues at his trial were the
sufficiency and cogency of the evidence that the appellant was the perpetrator. The appellant gave evidence and certain other
witnesses were led on his behalf. The trial
took place after the hearing of Holland and Sinclair in
the Privy Council but before the judgments in these cases were delivered. Prior to the trial all statements given to
the police by witnesses were disclosed to the defence. A companion of the victim made at the trial a
clear identification of the appellant as the perpetrator. A child, then aged about 13 years, was
believed by the Crown also to be able to identify the appellant as the
perpetrator. In the event that child was
unable, for health reasons, to give evidence in court. The Advocate depute made an application to
adduce, under section 259 of the Criminal Procedure (Scotland) Act 1995, a statement earlier given
by that child to the police. The defence
did not oppose that application, which was granted. The calls in the specification of documents
lodged on behalf of this appellant are directed to documents which may bear on
the mental health of the child at the time he made the statement, to his capacity
to speak the truth, to his suggestibility and to his capacity to give a
coherent account of a past incident, as well as documents showing or tending to
show what information was passed to the Crown relative to the child's health in
connection with the case and in particular with the notice given under section
259(5). However, Mr. Shead made no
submissions at this hearing in relation to these particular calls. He treated Blair's case as if there had been
presented in it a specification in the same general terms as those presented on
behalf of McDonald and Dixon.
Procedure to secure disclosure
[54] In
McLeod commission for recovery of
documents was sought prior to the trial.
At page 80D-E Lord Justice General Rodger said:
"I consider, however,
that an accused person who asks the court to take the significant step of
granting a diligence for the recovery of documents, whether from the Crown or
from a third party, does require to explain the basis upon which he asks the
court to order the haver to produce the documents. The court does not grant such orders unless
it is satisfied that they will serve a proper purpose and that it is in the
interests of justice to grant them. This
in turn means that the court must be satisfied that an order for the production
of the particular documents would be likely to be of material assistance to the
proper preparation or presentation of the accused's defence. The accused will need to show how the
documents relate to the charge or charges and the proposed defence to them."
That approach was adopted and applied
by Lord Macfadyen in Maan, Petitioner
2001 SCCR 172. Likewise, at the appeal
stage an appellant, if he seeks recovery of documents by diligence (an
appropriate and well-tried procedure in criminal proceedings), requires, in our
view, to explain the basis upon which he seeks the order and the court will not
grant it unless satisfied that it will serve a proper purpose and that it is in
the interests of justice to do so (see Hoekstra
v HM Advocate (No. 1) 2000 SCCR
263 and Hoekstra v HM Advocate (No. 5)). The same preconditions apply, in our view, to
any other order which might be sought touching on the recovery of documents or
other materials - whether under the Criminal Procedure (Scotland) Act 1995 or the Human Rights Act
1998 or otherwise.
[55] The
position adopted by Mr. Shead was singular.
As we have said, he asserted that petitions for recovery of documents
were both inappropriate and unnecessary.
He made passing reference to the Criminal Procedure (Scotland) Act 1995 and to the Human Rights
Act 1998 but offered no explanation as to why the criteria under these Acts for
making an order against the Lord Advocate were different from those under
procedure by commission and diligence.
He stated that the appellants required to "do nothing", the obligation
of disclosure being on the Crown. But,
if an appellant (or an accused) seeks the aid of the court, in furtherance of
an appeal (or in preparation for trial), to secure the performance by the Crown
of a duty upon it, he must, in our view, not only properly identify that duty
but lay a proper basis on which the court can in the particular circumstances
enforce the performance of that duty.
[56] In
the present cases each of the appellants has been granted leave to appeal
against conviction on specific grounds.
It is not suggested that the granting of any general order by the court for
recovery of documents or other material would assist in the presentation of
these grounds; nor, subject possibly to
para. [68] infra, is it suggested
that there are other arguable grounds on the basis of which, in the event of
particular documents or classes of documents (or particular other materials or
classes of material) being recovered, the court would now allow any of these
appeals to be presented. Mr. Shead's
proposition that the Crown has a duty to disclose what it has a duty to
disclose is true but tautological and, for practical purposes, accordingly
useless. The court could not conceivably
grant diligence in terms of the calls in the specifications in McDonald's and Dixon's cases for
"all material in the
possession or under the control of the Lord Advocate which ought to have been
(and ought to be) disclosed in terms of his [sic] obligation under Article 6(1) when read with section 57(2) of
the Scotland Act 1998."
Having regard to the consequences of
non-compliance, the haver is entitled to be told with precision what documents
or classes of document he or she is obliged to produce. These calls wholly fail to do so, giving no
practical content to any order for recovery.
[57] Mr.
Shead protested that he should not be required to be more specific, since he
did know where, if anywhere, among material ingathered by the Crown (including
the police) in the course of the investigations there might be hitherto
undisclosed material which might have assisted his defence (or tended to
undermine the Crown case) at trial and which might now assist in appellate
procedure. He cited examples (Sinclair, Gair and Johnston) where
significant material undisclosed at trial had subsequently - in some cases much
later - emerged. He asserted that the
same might be true in many other cases, including the cases of the present
appellants. But the mere possibility
that, hidden within a mass of insignificant material ingathered in the course
of an investigation, there might lie some item of significance would not
justify the court requiring disclosure of the whole mass for examination by the
appellant's legal advisers. Indeed, Mr.
Shead was careful not to suggest that the Crown had any such obligation. Quite apart from the question of public
expense which would be involved in such an exercise (both in funding an
appellant's legal advisers to undertake it and in the Crown producing and
ordering such material), it is highly doubtful whether it would achieve any
practical result. As Mr. Shead
emphasised, what is important is not necessarily the classes of materials
ingathered but the content of that material.
The prospects of the defence team coming upon the needle in the haystack
are at best uncertain.
[58] What
is required is a robust system, with a number of carefully crafted checks and
balances, which will so far as practicable ensure that all relevant material is
duly disclosed. No system for disclosure
is likely to be perfect; there is always
the risk of human fault, whether negligent or dishonest. As Lord Hamilton observed, in relation to
pre-trial disclosure, in McLeod at
page 82G-H:
"It must also be
recognised that practice in relation to pre-trial disclosure may change and
develop against the background of developments generally in the investigation
and in the prosecution of crimes. In Smith v HM Advocate [1952 JC 66]Lord Justice Clerk Thomson, under reference
to an observation made by Lord Justice General Clyde in Slater v HM Advocate
[1928 JC 94], said at page 72:
'There can be little
doubt, however, that the tendency in recent years has been for the defence to
expect from the Crown, and indeed for the Crown to afford, a measure of
assistance beyond what would have been in the contemplation of any previous
generation of Scots lawyers.'
There is every reason to
suppose that there have been further developments since 1952."
In the event there were, on the
assumption referred to in paragraph [40], further developments in Holland and Sinclair. Lord Coulsfield has recently produced a
report which may lead to legislation or to other changes in relation to
disclosure. The exercise is not
necessarily one-sided. There may be an
advantage in an accused being required, to a greater extent than at present, to
give notice of what his defence to any charges is. Such notice may be one way of focusing the
attention of the Crown on what is likely to be significant at the trial and
what particular material ought to be searched for as of potential
significance. Nice questions may arise
as to the extent to which it is appropriate to leave the identification of
relevant material to the Crown and its agencies and the extent to which and the
form in which there should be a cross-check by representatives of the
accused. But what system it is best to
adopt is likely to be a matter, at least in part, for the legislature, perhaps
combined with changes in Crown practice.
It is neither possible nor appropriate for the court to devise a
system. All it can do is to make, in the
interests of justice, a determination of issues properly raised before it.
Application to the present cases
[59] Such
a determination must have regard to the circumstances of the particular case
under consideration. It is unnecessary
for the purposes of these appeals to express any definitive conclusions on the
general system of disclosure operated by the Crown at the time of these trials
or currently. Nor is it necessary to
discuss whether any such systems are, or ought to be, publicly accessible. We have described the disclosure which, we
were told, was, in fact, afforded to those representing each of the appellants
at the times of their trials. In Dixon's case several witnesses were led on
behalf of the defence. We were not informed
whether any of these witnesses had given statements to the police. Nor were we informed whether, in any of the
cases, any of the Crown witnesses had previous convictions or outstanding
charges. But it was not suggested by Mr.
Shead that there was any colourable reason for supposing that any
non-disclosure in these respects might have led to any of these trials being
unfair. The arrangements in place at the
time may not have been perfect but there is no proper basis upon which it could
be held that they were, as arrangements, so deeply flawed as to render any of
these trials unfair.
[60] As
we have said, no order for recovery could properly be made in the terms sought
in the petitions of McDonald and Dixon.
Nor could this court properly make, under any power conferred under
legislation, an order of such an unspecific kind. Nor would it be appropriate, as suggested at
one point by Mr. Shead, for the court to invite the Lord Advocate "to make
disclosure of what she is obliged to disclose";
were she, quite understandably, to decline to accept such an empty
invitation, the court would be left in an impossible situation. It could not, as suggested by Mr. Shead,
simply proceed to quash the convictions.
The jurisdiction of the court to quash a conviction is statutory and can
be exercised only under reference to a ground of appeal (Hoekstra v HM Advocate (No.
5), para. [8]; Beattie v HM Advocate
1995 SCCR 93, pages 106-107). It could
not be said that there had been a miscarriage of justice nor that the appellants
had been denied a fair trial.
[61] We
should note that, in the course of his submissions, Mr. Shead made reference to
a number of particular classes of material which might be relevant - for
example, "unused forensic material" and information held on the HOLMES
system. But no application is before us
for recovery of such particular material.
Any such application would require to be considered on its merits, with
specific reference to the issues arising, or which properly might arise, in the
appeals.
The devolution minutes
[62] As
noted, the appellants lodged devolution minutes - McDonald and Dixon in June 2007 and Blair on the last
day of the resumed hearing. Those lodged
by McDonald and Dixon are identical and, in so far as material, are in the
following terms:
"2. That the Minuter seeks to raise a
devolution issue within the meaning of Schedule 6 to the Scotland Act on the
following grounds:
By virtue of section
57(2) of the Scotland Act 1998 the Lord Advocate has no power to act in a way
which is incompatible with the Minuter's Convention rights including the right
to a fair hearing under Article 6(1).
In particular the Lord
Advocate has the obligation to disclose to the defence any information which
might tend to exculpate the Minuter or undermine the case against him. In order to have permitted the Minuter to
prepare his defence properly that information should have been made available
to those advising him before his trial.
In any event it needs to be made available in the context of the present
proceedings.
The Lord Advocate has
caused it to be publicly stated that there is in place a series of checks
designed to ensure that the obligation of disclosure is fulfilled in every
case. Unfortunately the nature of those
checks is not known to those advising the Minuter and there is accordingly no
way of knowing whether the Crown's obligation to the Minuter has been
discharged.
Separatim. There is no means by which the
court can ascertain for itself whether the Minuter's Convention rights are being
respected. That being so there cannot be
said to be adequate judicial safeguards in place to ensure compliance with the
right in question.
In any event there is
reason to suppose that the Lord Advocate has not discharged the obligation laid
on her by Article 6(1).
In the circumstances a
fair hearing cannot be guaranteed. Separatim. There is any event a material risk that any
future hearing would not be fair.
Separatim. The failure of the Crown to make
known the system operated to respect the right to disclosure under Article 6(1)
means that to seek to support the Conviction would be an abuse of process.
For the Crown to continue
with the prosecution and seek to support the conviction would be for the Lord
Advocate to act incompatibly with the Minuter's right to a fair hearing
guaranteed by Article 6(1) of the European Convention on Human Rights. Such an act would be ultra vires. Reference is
made to section 57(2) of the Scotland Act 1998."
[63] That
lodged on behalf of Blair is in similar but not identical terms. These, in so far as material, are as follows:
"2. That the Minuter seeks to raise a
devolution issue within the meaning of Schedule 6 to the Scotland Act 1998 on
the following grounds:
By virtue of section
57(2) of the Scotland Act 1998 the Lord Advocate has no power to act in a way
which is incompatible with the Minuter's Convention rights including the right
to a fair trial under Article 6(1).
In particular the Lord
Advocate has the obligation to disclose to the defence any information which
might tend to exculpate the Minuter or undermine the case against him. The Crown's Article 6(1) duty to disclose
evidence in favour of the defence does not depend on any request being made by
the defence. That duty subsists until
the conclusion of proceedings.
There is reason to
suppose that the Lord Advocate has not discharged the obligation laid on her by
Article 6(1) in the present case.
In the circumstances the
Minute was denied a fair trial.
Separatim. There is in any event a material
risk that any breach of his Convention rights which has occurred will not be
remedied in the course of the proceedings on appeal in the absence of
disclosure being made.
Separatim. The absence of disclosure
precluded and precludes the proper preparation and presentation of the
Minuter's defence.
For the Lord Advocate to
have invited the jury to convict the Minuter was an act which was incompatible
with the Minuter's right to a fair trial guaranteed by Article 6(1) of the
European Convention on Human Rights.
Such an act was ultra vires. Reference is made to section 57(2) of the
Scotland Act 1998.
Separatim. For the Lord Advocate to seek to
support the conviction would be an act which is ultra vires. Reference is
made to the preceding paragraph."
[64] An
issue arises as to whether these minutes should be received and entertained by
the court. The first question is
whether, as submitted by the Lord Advocate, each of the appellants is barred by
acquiescence from now raising any devolution issue which might be contained in
the relative minute. Reliance was
placed, in particular, upon the lapse of time since the appeals had been taken,
against the background that the scope of the Crown's obligation of disclosure
had been clear at least from the time (in May 2005) when the judgments in Holland and Sinclair were issued. We
reject that submission. Acquiescence
involves the abandonment of a right.
Here the right sought to be maintained is the right (subject as
discussed below to the leave of the court) to assert that, in particular
respects with regard to disclosure, the relative appellant's right, under
Article 6 of the Convention, to a fair hearing has been (or is being)
infringed. We are not persuaded that any
of the appellants acquiesced in the giving up of that right. It is plain from the history given to us that,
after the appeals were taken, issues of disclosure were raised at various
stages extra-judicially with the Crown.
Such activity suggests that the right was being asserted, rather than
abandoned. Although the passage of time
may be a relevant factor in the exercise of a discretion to receive the minutes
at this stage, it is not in the circumstances sufficient, in our view, to
justify an inference of acquiescence.
[65] The
next question is whether the appellants have an unqualified right to have these
minutes received and entertained. In our
view they clearly do not. The question
turns on whether in appellate proceedings following conviction on indictment
the applicable provision of the Act of Adjournal (Criminal Procedure Rules)
1996 (as amended) is Rule 40.2 or Rule 40.4, the former of which prescribes a
time limit within which the requisite notice must be given, the latter of which
prescribes no time limit. Rule 40.5
provides:
"(1) No party to criminal proceedings shall
raise a devolution issue in those proceedings except as in accordance with Rule
40.2, 40.3 or 40.4, unless the court, on cause shown, otherwise determines."
[66] Mr.
Shead submitted that appellate proceedings (whether on indictment or otherwise)
fell within Rule 40.4. But perusal of
the Rules as a whole demonstrates that that submission is plainly wrong. Rule 40.2(3)(a) (which envisages that a
relevant authority may become a party to an appeal) makes clear that Rule 40.2
applies both to trial and to appellate proceedings on indictment. The parallel provision in relation to summary
proceedings is to be found in Rule 40.3(5).
Accordingly, the appellants cannot raise a devolution issue in these
appellate proceedings unless the court, on cause shown, otherwise
determines. The court has not, to date,
made any such determination. It falls to
this court now to exercise the relevant discretion.
[67] In
the course of Mr. Shead's argument, although submissions were made concerning a
"fair trial" and its alleged denial, no reference was made to the terms of any
of the devolution minutes. Nor was any
argument directly related to these terms.
Indeed Mr. Shead, relying upon his contention (unsound, in our view)
that cause did not require to be shown, did not articulate any cause for
receiving these minutes at this time.
His contention came to be the tautological proposition earlier noticed,
namely that the Crown had a duty to disclose what it had a duty to
disclose. That cannot, properly, be
described as an "issue" at all. In
deciding whether to exercise our discretion we take into account the relative
lateness of the tendering of these minutes and the lack of real substance, in
our view, of the arguments presented. And
we are not persuaded that the circumstances justify a jurisdiction being
invoked which might render competent an appeal to the Privy Council. Essentially the issue is a procedural one,
namely, whether the court should exercise its power to make an order for
recovery and, if so, on what terms. That
is properly a matter for this court exclusively. In these circumstances the devolution minutes
ought not to be received.
[68] As
we have noted, the calls in Blair's petition are in more specific terms than
those in the other two cases. Mr. Shead
urged us, in the event of our finding against him on his major propositions, to
allow him an opportunity of addressing the court on these particular
calls. We are prepared to do so.
Disposal
[69] We
shall accordingly continued Blair's petition for that purpose, but refuse the
prayers of the petitions at the instances of McDonald and Dixon.
We shall also refuse to make any other order for recovery. We shall further refuse to allow the
devolution minutes to be received.
