Appeal Under Section 74(1) Of The Criminal Procedure (scotland) Act 1995 By Her Majesty's Advocate Against (first) Am And (second) Jm
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Justice Clerk,Lady Clark Of Calton |
| Judgment Date | 29 September 2015 |
| Neutral Citation | [2016] HCJAC 34 |
| Docket Number | HCA/2015 |
| Published date | 19 April 2016 |
| Court | High Court of Justiciary |
| Date | 29 September 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 34
HCA/2015/2336/XC and HCA/2015/2337/XC
Lord Justice Clerk
Lady Smith
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL
under section 74(1) of the Criminal Procedure (Scotland) Act 1995
by
HER MAJESTY’S ADVOCATE
Appellant;
against
(FIRST) AM and (SECOND) JM
Respondents:
Appellant: I McSporran AD; the Crown Agent
First Respondent: Duguid QC, Lenehan; Ian McCarry, Glasgow
Second Respondent: Targowski QC, AJ Macleod; Bob McDowall, Glasgow
29 September 2015
Introduction
[1] This is an appeal against the decision of a judge, at a Preliminary Hearing on 24 June 2015 at the High Court in Glasgow, ordering disclosure by delivering copies of the disc recordings of police and social work Joint Investigative Interviews (JIIs) of the complainers to the respondents’ agents, subject to certain conditions. The recordings last about 6 hours.
Background
[2] The respondents, who are aged 16 and 15, face two charges of sexual abuse involving two younger boys, contrary to sections 18, 20 and 21 of the Sexual Offences (Scotland) Act 2009. Special measures have been granted in relation to both complainers. These include the taking of their evidence on commission and the giving of evidence in chief in the form of prior statements (Criminal Procedure (Scotland) Act 1995, s 271I and M), viz. the recordings of the JIIs.
[3] The discs and the transcriptions are listed as productions in the lists attached to the indictment. The discs are in the custody of the Crown. The Crown have refused to provide copies of the discs to the defence. Rather, they have elected to disclose the evidence “by enabling the accused to inspect [the discs] at a reasonable time and in a reasonable place” (Criminal Justice and Licensing (Scotland) Act 2010, s 160(3)). This method of disclosure is known as “disclosure by access”. It involves the Crown retaining possession of the discs at an office of the Procurator Fiscal. A room is available for the respondents’ agents and counsel to view the discs’ content. In order to do so, they must book an appointment about four days in advance, during ordinary working hours and subject to availability. The respondents’ agents are not permitted to remove the discs, but they may view them on as many occasions as is desired. The respondents wish to have the discs’ content viewed by a forensic psychologist, who is said to be able to comment on the interviewing process under reference to established guidelines. The Crown have declined to provide copies of the discs to the experts. The expert view may, it is said, ground an objection to the admissibility of the JIIs in whole or in part. The objection relates to the leading or inappropriate nature of the questioning.
[4] Both respondents lodged preliminary and compatibility issue minutes relating to the discs. The preliminary issue raised by the first respondent avers oppression, based on the limited means of access to the discs as proposed by the Crown and inaccuracies in the transcriptions of the JIIs, which have been provided. The preliminary issue raised by the second respondent relates to the accuracy of the transcripts and to certain content which, it is said, relates to a crime not charged. The compatibility minutes raise a complaint of a breach of Article 6.3(b) of the European Convention in that the mode of access to the discs does not afford the defence adequate time and facilities for the preparation of the defence. The principle of equality of arms was applicable, since the advocate depute prosecuting the case would be provided with copies of the discs, even if these could not be taken away from Crown Office premises.
[5] Following the recommendations of the Coulsfield Review of the Law and Practice of Disclosure (2007), the Crown’s duties of disclosure are contained in Part 6 the Criminal Justice and Licensing (Scotland) Act 2010. As soon as practicable after the commencement of proceedings, the Crown must review all relevant information and disclose to the accused all the material information of which they are aware (s 121). The prosecutor may disclose the information “by any means” (s 160(2) and may “disclose the information by enabling the accused to inspect it at a reasonable time and in a reasonable place” (s 160(3)).
[6] The legislative provisions were informed by the recommendations of the Review, which state (para 6.3):
“disclosure of sensitive video evidence given by vulnerable witnesses could do great damage, if it led to circulation and duplication of the video images either as part of an effort to intimidate or out of sheer mischief.”
After assessing the practical difficulties in disclosing recordings, the Review observed (para 17.4):
“… recordings of vulnerable witnesses may be unusually sensitive. Just as with a sensitive document, this cannot normally outweigh the requirement for recordings with potential exculpatory value to be made available to the defence. However, it may commonly be necessary to effect disclosure not by passing a copy of the tape to the defence, but by arranging for them to view it under controlled conditions.”
[7] In terms of section 164 of the 2010 Act, the Lord Advocate issued a Code of Practice, which has been laid before Parliament. Paragraph 26.8 of the Code states:
“Where information is assessed as being material, copies should not be provided to the defence where the information is of a personal and highly sensitive nature and disclosure of copies (electronically or otherwise) may be extremely distressing to any individual or where the information consists of:
…
(ii) Visual (including audio) recordings of a child or other vulnerable witnesses being interviewed and
…”
[8] The practical effect of this provision is that, while the legislation provides for an exercise of discretion on the part of the Crown to disclose material by “any means”, the Code of Practice contains a prohibition on copies being made available to the defence if the criteria set out in paragraph 26.8 are satisfied.
Decision of the PH judge
[9] The PH judge ordered the Crown to provide copies of the discs to the respondents’ agents in a format which allowed their computers to read, but not to copy, them. The judge imposed conditions whereby: (1) copies will not be made of the discs; (2) no disclosure of the recordings or its contents will be made unless necessary in the legitimate interests of the accused; (3) the discs will be returned at the end of the proceedings; (4) except when being viewed, the discs will be kept in a locked, secure container and not unattended or otherwise unprotected; and (5) the accused can view the discs under the supervision of his legal representatives.
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