Appeal Against A Refusal To Grant A Commission To Recover Documents By D.m. Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Brodie,Lord Justice Clerk |
| Neutral Citation | [2015] HCJAC 4 |
| Docket Number | HCA/2014 |
| Year | 2015 |
| Published date | 09 January 2015 |
| Court | High Court of Justiciary |
| Date | 02 July 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice Clerk Lord Brodie Lord Philip
| [2015] HCJAC 4 HCA/2014/002707/XC
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST A REFUSAL TO GRANT A COMMISSION TO RECOVER DOCUMENTS
by
DM Appellant;
against
HER MAJESTY’S ADVOCATE Respondent: _____________ |
Appellant: Labaki; Paterson Bell (for Reilly, Cassidy & Co, Glasgow)
Respondent: Bain AD; the Crown Agent
2 July 2014
[1] The appellant is indicted on various charges of public disorder involving, amongst others, his wife and on charges of assault upon his wife (the complainer) during the period between 2009 and 2013. He seeks the recovery of a psychiatric report on his wife, prepared by a Dr Anderson, in August or September 2013, in connection with different proceedings against her for assaulting the appellant. The position in relation to these formerly parallel proceedings is that the report was obtained by the complainer, with a view to demonstrating that she was not fit to stand trial by reason of her mental state. That state prohibited her from engaging meaningfully in the trial process. The production of the report resulted in the adjournment of the trial diet. Ultimately the respondent deserted the proceedings pro loco et tempore pending the resolution of the present case, partly, but not exclusively, because of what was said in the report.
[2] The appellant has already obtained psychotherapy and general practitioner records relating to the complainer’s mental health. These are said to reveal that she suffers from anxiety and depression. The appellant contends in the petition that, during September 2013, the complainer was suffering from a “major depressive disorder” and that her complaints against the appellant were made in an attempt to escape prosecution herself. It is said that the report will allow the credibility and reliability of the complainer to be explored, that it is in the interests of justice that the report be given to the appellant as it may be of material assistance in the preparation of his defence and that he would be materially prejudiced if he did not have the report.
[3] It was accepted before the sheriff that the appellant was essentially speculating about the report’s content. The sheriff had regard to the test in McLeod v HM Advocate 1998 JC (LJG (Rodger) at p 80), to the effect that a party seeking the recovery of documents requires to explain why he wants them. The court will not grant an order for recovery unless it is satisfied that that recovery will serve a proper purpose and that it is in the interests of justice to grant the relevant order. The court requires to be satisfied that the material sought will be of material assistance in the proper preparation or presentation of the defence. The sheriff noted that the appellant had already obtained the medical records and determined that it had not been shown that recovery was likely to be of material assistance in these circumstances....
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