Case Commentaries

Published date01 January 2010
Date01 January 2010
Subject MatterArticle
Disclosure of prosecution witness criminal history—Privy Council (Scotland)
It is well established (see McDonald vHM Advocate 2008 SCCR 954 at 972) that in
criminal proceedings, the equality of arms principle implicit in Article 6 imposes
on the prosecution a duty to disclose information in its possession of which it is
aware which either materially weakens the Crown’s case or materially
strengthens that of the defence. In other Commonwealth jurisdictions and the
United States the approach is similar. Failure to disclose material information to
the defence may cause a conviction to be overturned on appeal. In HM Advocate v
Murtagh [2009] UKPC 36, in a devolution reference, the Privy Council was asked
1. the prosecution has a duty to disclose the complete criminal history of
everyone on the Crown’s witness list, including pending charges and
outcomes other than convictions such as fixed penalties and cautions,
2. if disclosure of criminal history information is subject to a materiality
test, who makes the initial decision about what to disclose?
Murtagh faced a prosecution for assault. In response to a defence request for
disclosure of all previous convictions and pending charges of its witnesses, the
prosecution produced heavily redacted schedules. Litigation followed in which
the defence, in effect, asked for disclosure of everything that had been blacked
out. The content of the redactions was not known to the Board but by the hearing
of the appeal it had emerged that one of the prosecution witnesses had a fixed
penalty for attempting to pervert the course of justice while on bail.
In the lead judgment, Lord Hope said that while a defendant has an absolute right
to a fair trial, the right to disclosure of information by the Crown implied by
Article 6 is not absolute. There are circumstances in which disclosure of some or
all of the criminal history of Crown witnesses must be refused to protect their
Article 8(1) privacy interests. The fact that a witness has a criminal conviction is
not of itself private information the publication of which would infringe Article
8(1). However, Article 8(1) is engaged when criminal convictions are systematically
collected and stored by the authorities on a database that is inaccessible to the
general public. It is also engaged when this information is released from these
databases ( [28]), ‘especially where the conviction has receded into the
individual’s past’ (ibid. at [66], per Lord Rodger). The defendant’s Article 6(1) right
to a fair trial takes precedence over the privacy rights of witnesses (ibid. at [18],
[29], [43], [64]) but it is not engaged by criminal history information unless that
information satisfies a materiality test (generously applied). This test determines
also whether it is obligatory for the prosecution to disclose a measure offered and
accepted as an alternative to prosecution such as a caution (ibid. at [40], [68], per
Lord Hope).
When is a criminal conviction ‘material’? Answer: if it ‘could have any possible
bearing on the witness’s credibility or character’ (ibid. at [30], per Lord Hope and also
at [56], per Lord Rodger (emphasis added)).
In cases of assault, for example, the question whether the complainer
is of a violent or quarrelsome disposition is likely to be relevant and
any aspects of his criminal history that may have a bearing on that
issue will be disclosable. Records of convictions of outstanding
charges for crimes of violence will fall into this category … Records of
convictions for crimes of dishonesty or of attempts to pervert the
course of justice will be justifiable under s. 8(2). (ibid. at [30], per Lord
There is no reference here to the traditional distinction between criminal history
relevant to the issue and to credit, perhaps because this distinction is artificial
where the truthfulness of a witness is the central issue, or it could be that ‘char-
acter’ refers to propensity to commit the crime. In the context of an examination
of s. 100 of the English Criminal Justice Act 2003, John Spencer, Evidence of Bad
Character, 2nd edn (Hart: 2009) 48, says that a previous conviction may affect credi-
bility in the sense of veracity directly or indirectly. It may do so directly, where
it affords a reason for doubting the truthfulness of a witness’s evidence and
indirectly, if it suggests that the witness is the sort of person whom it is dangerous
to believe when testifying on oath. In a case of assault, the victim’s convictions for
violence fall into the former category, those for perjury or attempting to pervert
the course of justice into the latter.
Where previous convictions of the defendant are concerned, the English Court of
Appeal (anxious to prevent circumvention of s. 101 of the Criminal Justice Act
2003) has taken a restrictive view of the kind of convictions that affect credibility

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