References Between John Barclay+william James Bain+her Majesty's Advocate+douglas Mclean+her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Justice General,Lord Clarke |
| Judgment Date | 11 April 2012 |
| Neutral Citation | [2012] HCJAC 47 |
| Published date | 11 April 2012 |
| Date | 11 April 2012 |
| Court | High Court of Justiciary |
| Docket Number | XC798/11, |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Clarke Lord Philip | [2012] HCJAC 47 Appeal No: XC798/11, XC838/11 and XC839/11 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in REFERENCES between (1) JOHN BARCLAY First Minuter; and WILLIAM JAMES BAIN Second Minuter; and HER MAJESTY'S ADVOCATE Respondent: and (2) DOUGLAS McLEAN Third Minuter; and HER MAJESTY'S ADVOCATE Respondent: _______ |
First Minuter (Barclay): Scott, Q.C., McLaughlin; Browns, Glasgow
Second Minuter (Bain): Gebbie, McAulay; Drummond Miller, Edinburgh
Third Minuter (McLean): Scott, Q.C., Moll; Fleming & Reid, Glasgow
Respondent: Miller, Solicitor Advocate, A.D.; Crown Agent
11 April 2012
The proceedings
[1] The first and second minuters have been charged together on indictment in the Sheriff Court at Glasgow with assault to injury and to the danger of life; the first minuter has additionally been charged with a contravention of section 41(1)(a) of the Police (Scotland) Act 1967. The third minuter has been charged, with another, in the High Court at Glasgow with murder and with certain other offences. In the first process several devolution minutes were lodged for each of the first and second minuters; in the second process a single devolution minute has been lodged. Each reference raises questions about section 70A of the Criminal Procedure (Scotland) Act 1995, as inserted by the Criminal Justice and Licensing (Scotland) Act 2010 - as to its construction and as to whether it is outwith the competence of the Scottish Parliament and accordingly not law. The questions raised in the two references are similar but not identical.
The statutory provisions
[2] Section 70A was inserted by section 124(3) of the 2010 Act. Section 124 is in the following terms:
"(1) This section applies where the accused lodges a defence statement under section 70A of the 1995 Act.
(2) As soon as practicable after the prosecution receives a copy of the defence statement, the prosecutor must -
(a) review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware, and
(b) disclose to the accused any information to which section 121(3) applies.
(3) After section 70 of the 1995 Act insert -
'70A Defence statements
(1) This section applies where an indictment is served on an accused.
(2) The accused must lodge a defence statement at least 14 days before the first diet.
(3) The accused must lodge a defence statement at least 14 days before the preliminary hearing.
(4) At least 7 days before the trial diet the accused must -
(a) where there has been no material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a statement stating that fact,
(b) where there has been a material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a defence statement.
(5) If after lodging a statement under subsection (2), (3) or (4) there is a material change in circumstances in relation to the accused's defence, the accused must lodge a defence statement.
(6) Where subsection (5) requires a defence statement to be lodged, it must be lodged before the trial diet begins unless on cause shown the court allows it to be lodged during the trial diet.
(7) The accused may lodge a defence statement -
(a) at any time before the trial diet, or
(b) during the trial diet if the court on cause shown allows it.
(8) As soon as practicable after lodging a defence statement or a statement under subsection (4)(a), the accused must send a copy of the statement to the prosecutor and any co-accused.
(9) In this section, "defence statement" means a statement setting out -
(a) the nature of the accused's defence, including any particular defences on which the accused intends to rely,
(b) any matters of fact on which the accused takes issue with the prosecution and the reason for doing so,
(c) particulars of the matters of fact on which the accused intends to rely for the purposes of the accused's defence,
(d) any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose,
(e) by reference to the accused's defence, the nature of any information that the accused requires the prosecutor to disclose, and
(f) the reasons why the accused considers that disclosure by the prosecutor of any such information is necessary.'.
(4) In section 78 of the 1995 Act (special defences, incrimination, notice of witnesses etc.), after subsection (1) insert -
'(1A) Subsection (1) does not apply where -
(a) the accused lodges a defence statement under section 70A, and
(b) the accused's defence consists of or includes a special defence.'."
[3] Section 124 is within Part 6 of the 2010 Act. That Part is headed "Disclosure". It imposes certain duties upon an "investigating agency" (a police force or certain other persons) to provide information to the prosecutor in a prosecution and upon that prosecutor a duty to disclose information to the accused. Each of these duties is a continuing one. In the case of the latter that duty continues until the conclusion of the proceedings against the accused. Section 125 makes for summary proceedings provisions equivalent to that in section 124 for solemn proceedings. Sections 128-130 make provision for court rulings on disclosure. Sections 131-167 make further provision with respect to disclosure. Section 121 provides:
"(1) This section applies where in a prosecution -
(a) an accused appears for the first time on petition,
(b) an accused appears for the first time on indictment (not having appeared on petition in relation to the same matter), or
(c) a plea of not guilty is recorded against an accused charged on summary complaint.
(2) As soon as practicable after the appearance or the recording of the plea, the prosecutor must -
(a) review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware, and
(b) disclose to the accused the information to which subsection (3) applies.
(3) This subsection applies to information if -
(a) the information would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,
(b) the information would materially strengthen the accused's case, or
(c) the information is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused."
Submissions on behalf of the minuters Barclay and McLean
[4] Miss Scott conceded at the outset that section 70A of the 1995 Act could be read in a way which was Convention compatible. No challenge was made to the requirement for a defence statement as a tool to enable disclosure. However, she submitted that, when one considered sections 121 - 127 of the Criminal Justice and Licensing (Scotland) Act 2010 in conjunction with section 70A of the 1995 Act, the way in which the disclosure regime was to operate could be construed as being incompatible with the minuters' rights to a fair trial under Article 6(3) and 6(1) of the Convention. That right was absolute and not subject to any limitation or balancing considerations (Montgomery v HM Advocate 2001 SC (PC) 1, per Lord Hope of Craighead at pages 27E-F and 29G). A fundamental aspect was the adversarial nature of criminal proceedings, including the procedural elements, and the equality of arms between parties, each of whom had to have knowledge of and the opportunity to comment on the evidence of the other (Edwards v The United Kingdom (2005) 40 EHRR 24 at para [52]; Jespers v Belgium (1983) 5 EHRR CD 305, at paras 54-58). Each party should have the opportunity to present his case in circumstances which did not place him at a substantial disadvantage (Dombo-Beheer B.V. v Netherlands (1993) 18 EHRR 213). The rules of natural justice had to be observed: the prosecution owed a duty to the court to ensure that any evidence which might assist an accused was made available (R v Hennessey (1979) 68 Cr.App. R 419, per Lawton, LJ at page 426).
[5] In assessing section 70A of the 1995 Act three questions required to be asked: (i) what does section 70A mean when read in the context of the disclosure provisions of the 2010 Act; (ii) how is it intended to operate in practice; and (iii) on that meaning and standing that method of operation, was it compatible with the appellant's right to a fair trial and thus within the competence of the Scottish Parliament (HM Advocate v DS 2007 SCCR 222 (per Lord Hope at paras 16-18 and 21-24). The starting point was the obligation upon judges, so far as possible, to read and give effect to legislation in a way which was Convention compatible (Human Rights Act 1998, section 3; Scotland Act 1998, section 101(2)). That obligation was strong, albeit rebuttable and subject to limitations (HM Advocate v DS, per Lord Hope at para 24; Ghaidan v Godin-Mendoza [2004] 2 AC 557, per Lord Rodger of Earlsferry at paras 103-111)
[6] Analysing the provisions in that manner, a number of issues could be identified. The definition of the prosecutor's duty of disclosure under section 121 of the 2010 Act was too restrictive: it should be read as a duty to disclose information which "might" undermine the case against the accused or assist his defence, rather than information which "would" do so (see Allison v HM Advocate 2010 SC (UKSC) 19, per Lord Rodger at para [14] and Lord Hope at para [28]; McInnes v HM Advocate 2010 SC (UKSC) 28, per Lord Hope at para [19]; HM Advocate v Murtagh 2010 SC (PC) 39, per Lord Scott of Foscote at para [43]). The duty of further disclosure under section 122 of the 2010 Act was not enforceable (2010 Act, section 128; cf section 121). Moreover, the common law rules of disclosure having been abolished, there was no mechanism to enforce this further duty prior to the trial (2010 Act, section 166). If section 122 were read as...
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