HM Advocate v Murtagh
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead,Lord Scott of Foscote,Lord Rodger of Earlsferry,Lord Collins of Mapesbury |
| Judgment Date | 03 August 2009 |
| Neutral Citation | [2009] UKPC 36,[2009] UKPC 35 |
| Court | Privy Council |
| Docket Number | Appeal No 11 of 2009,No 3 |
| Date | 03 August 2009 |
[2009] UKPC 36
Present at the hearing:-
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
Lord Collins of Mapesbury
Privy Council
This is a reference by the High Court of Justiciary under para 33 of Schedule 6 to the Scotland Act 1998 of a devolution issue which has arisen in proceedings in that court. It has been required by the Advocate General for Scotland for answers to be given to the following questions:
(i) Whether the right to a fair trial which is guaranteed by article 6 of the European Convention on Human Rights requires the Crown to disclose to the accused all previous convictions and outstanding charges of Crown witnesses or whether it requires the disclosure of only such previous convictions and outstanding charges (if any) as materially weaken the Crown's case or materially strengthen the case for the defence.
(ii) Whether it is consistent with an accused's right to a fair trial for the Crown itself to take the initial decision as to whether or not such previous convictions and outstanding charges materially weaken the Crown's case or materially strengthen the case for the defence.
(iii) Whether calling the indictment for trial in circumstances where the Crown has disclosed only such previous convictions and outstanding charges (if any) as fall to be disclosed in light of the Crown's decision mentioned at (ii) above would be an act of the Lord Advocate incompatible with the accused's Convention rights.
(iv) Whether article 6(1) requires disclosure of a warning by the prosecutor or a measure offered and accepted as an alternative to prosecution by the prosecutor, the police or a specialist reporting agency which reports to the procurator fiscal.
Questions 1 to 3 are concerned with the disclosure of previous convictions and outstanding charges of Crown witnesses. The principal issue which they raise is whether the Crown is obliged to disclose to an accused person all the previous convictions and outstanding charges of Crown witnesses as a class, or whether its obligation is to disclose only such information about them as materially weakens the Crown's case or materially strengthens the case for the defence. As Lord Rodger of Earlsferry points out in para 48, it is directed to the scope of the Crown's duty to disclose such information spontaneously, without having been ordered to do so by the Court. The answer to that issue will determine the extent of an incriminee's criminal history that must also be disclosed. The Advocate General has asked for these questions to be referred because of his concern that differences may be developing between the laws of Scotland on the one hand and England and Wales on the other as to the extent to which the accused's article 6(1) Convention rights require this information to be disclosed to the defence.
Question 4 is concerned with the disclosure of alternatives to prosecution. Various alternatives are available to the Crown and the police and, under certain statutes, to other public authorities. It is unnecessary to distinguish between them for present purposes. The Lord Advocate's current position is that such information is subject to the normal materiality test. But she suggests that, having regard to the nature of these measures and the use to which the information could be put, a proper application of the materiality test would not require any of this part of the witnesses' criminal history to be disclosed at all.
The procedural background
The reference originates from a prosecution that is being brought against the accused, John Murtagh, in the sheriff court at Glasgow. He was indicted for trial on 13 October 2008 on a charge of assaulting Marie Anne McGregor to her severe injury and permanent disfigurement and on several other minor charges. The Crown has intimated that it intends to adduce evidence from five civilian witnesses, including the complainer. The accused's solicitors asked the Crown to provide them with a schedule of previous convictions and outstanding charges of those witnesses and of an incriminee named Amanda Hogg. The schedules which the Crown produced in response to this request were heavily redacted either by ink or paper overlay. The entries which have not been redacted contain information about previous convictions and outstanding charges which are plainly relevant to any questions that the defence may wish to raise about the witnesses' character and credibility. But it is impossible to tell what the numerous redacted entries refer to.
The accused maintains that the information that has been provided in this form is incomplete. So prior to the first diet his solicitors lodged a petition for a commission and diligence for the recovery of documents. An order was sought for the production of any records in the hands of the Procurator Fiscal showing or tending to show the nature and extent of any previous convictions and/or pending charges in respect of the five Crown witnesses and the incriminee. The sheriff granted an order in the terms sought by the accused. It was not qualified by reference to the relevance or materiality of the convictions and charges. The Crown lodged an appeal against this decision and gave notice to the clerk of court, the accused's solicitors and the Advocate General of its intention to raise a devolution issue, as in his turn did the accused. The Advocate General intimated that he intended to intervene in the proceedings. A hearing then took place before the High Court of Justiciary on 18 and 19 November 2008 at which the devolution minutes were received and the Advocate General, as he has power to do under the statute, required the court to make this reference.
Prior to the hearing in the High Court of Justiciary the Crown wrote to the accused's solicitors advising them that the criminal history record of one of its witnesses contained a procurator fiscal fixed penalty which the witness had accepted. This was for an attempt to pervert the course of justice whilst the witness was on bail. They were also informed that none of the other redactions in the criminal history records that had been disclosed to them related to any fixed penalties issued by the Crown.
The main issue
We are concerned in this case with the extent of the duty of disclosure that is required of the Lord Advocate about a Crown witness's criminal history if she is to act compatibly with the accused's rights under article 6(1). The general duty of disclosure is not itself called into question. It is well settled, and it has not been suggested that it is in need of reconsideration. The issue is whether a consequence ofthat duty is that the witness's entire criminal history must be disclosed or only such part or parts of it as are material. In essence the accused's argument is that the witness's criminal history constitutes information of a kind that does not permit that kind of selection. It is already the case that the police statements of all the Crown's civilian witnesses must be disclosed without redaction. As a class, that information is always disclosable. So too, it is submitted, is the whole of the Crown witnesses' criminal history.
In order to address this issue it may be helpful if I were to say something about how the law on disclosure has developed, the principles on which it is based and where matters stand at present as to the disclosure of a witness's criminal history.
The jurisprudence of the European court on the issue is very well known, and I need do no more than sketch in the main points. In Edwards v United Kingdom (1992) 15 EHRR 417, para 36 the European Court said that article 6(1) requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused, and that failure to do so in that case gave rise to a defect in the trial proceedings. Elaborating on this proposition in Rowe and Davis v United Kingdom (2000) 30 EHRR 1, para 60, the court said that it is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and the defence and that article 6(1) requires that the prosecution authorities should disclose all material evidence in their possession for or against the accused: see also Jasper v United Kingdom (2000) 30 EHRR 441, para 51. I am grateful to Lord Collins of Mapesbury for pointing out that the position is similar in Australia, New Zealand, Canada and the United States. The rule established in Brady v Maryland, 373 US 83 (1963), deriving from the due process clause of the Fifth Amendment, is that the right to a fair trial requires that the prosecution must disclose all information which is material in the sense that there is a reasonable probability that, had it been disclosed to the defence, the result would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trial: United States v Bagley, 473 US 667, 682 (1985). The rule extends to the criminal history records of prosecution witnesses: eg Crivens v Roth, 172 F 3d 991, 996-997 (7th Cir 1999); United States v Price, 566 F 3d 900, 903 (9th Cir 2009).
It is now well settled in Scots law that, in order to meet these requirements, the Crown must disclose any statements or other material of which it is aware which either materially weakens the Crown case or materially strengthens the case for the defence: McLeod v HM Advocate (No 2) 1998 JC 67, 79F-G, 80E-F; Holland v HM Advocate [2005] UKPC D1, 2005 SC (PC) 3, para 64; Sinclair v HM Advocate [2005] UKPC D2, SC (PC) 28, para 33; McDonald v HM Advocate [2008]...
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