John Mcdonald+brendan Dixon+richard Blair V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Nimmo Smith,Lord Philip |
| Neutral Citation | [2007] HCJAC 75 |
| Court | High Court of Justiciary |
| Date | 21 December 2007 |
| Docket Number | XC732/05, |
| Published date | 21 December 2007 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Nimmo Smith Lord Philip | [2007] HCJAC 75 Appeal No: XC732/05, XC213/05 and XC406/05 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEALS by (1) JOHN McDONALD Appellant; against HER MAJESTY'S ADVOCATE Respondent: (2) BRENDAN CHRISTOPHER DIXON Appellant; against HER MAJESTY'S ADVOCATE Respondent: and (3) RICHARD BLAIR Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Shead, Mitchell; Capital Defence, Edinburgh (McDonald): Shead, McKenzie; Capital Defence, Edinburgh (Dixon): Shead, Mitchell; Ian McGarry, Glasgow (Blair)
Alt: Lord Advocate, Wolffe, Q.C., A.D.; Crown Agent
Alt: Advocate General, Howlin; Office of the Advocate General
21 December 2007
Introduction
[1] The appellant McDonald was on 1 September 2005 convicted after trial of murder and of various firearms offences. He has appealed against that conviction on a single ground: that no reasonable jury could, having regard in particular to the nature and quality of the evidence relied upon by the Crown as corroboration for the identification of the appellant as the perpetrator, have convicted him. Leave to appeal on that ground was granted on 28 March 2006.
[2] The appellant Dixon was on 1 March 2005 convicted after trial of murder and of attempting to defeat the ends of justice. He has appealed against conviction and sentence. His grounds of appeal against conviction are, in summary, (1) that the trial judge wrongly refused a submission that there was no case for him to answer, (2) that the directions given by the trial judge in relation to corroboration were misconceived, (3) that the trial judge failed to direct the jury in relation to certain forensic evidence said to raise a reasonable doubt about the appellant's guilt, (4) that the trial judge displayed apparent bias in his treatment of certain witnesses led in support of the appellant's special defence of alibi and (5) that the trial judge failed to direct the jury that, if the evidence led in relation to the appellant's alibi raised with them a reasonable doubt, they were bound to acquit. Leave to appeal on those grounds was granted on 14 February 2006.
[3] The appellant Blair was on 29 April 2005 convicted after trial of murder. He has appealed against conviction on grounds which may be summarised as follows: (1) that the trial judge erred in law in failing to allow a photograph and an associated list of additional witnesses for the defence to be lodged late (these bearing upon the identification of the appellant as the perpetrator), (2) that the trial judge erred in refusing to sustain a submission that the appellant had no case to answer and (3) that the trial judge had wrongly, in assessing the sufficiency of the evidence against the appellant, taken into account a statement admitted in evidence under section 259 of the Criminal Procedure (Scotland) Act 1995. Leave to appeal on those grounds was granted on 22 November 2005.
[4] In each of these appeals the appellant has lodged a petition for recovery of documents. In the cases of McDonald and Dixon the calls in the specification are identical. They are in the following terms:
"1. All material in the possession of or under the control of the Lord Advocate which ought to have been (and ought to be) disclosed in terms of his [sic] obligation under Article 6(1) when read with section 57(2) of the Scotland Act 1998.
2. Failing principals, drafts, copies or duplicates of the above whether in paper or in digital form."
In the cases of Blair the calls are for documents related, broadly, to the mental health of the witness whose statement was admitted under section 259. (Counsel for another appellant (Grant) was allowed in the course of the hearing to withdraw a petition for recovery lodged on behalf of his client.) Associated with the petitions for recovery of documents in the cases of each of McDonald and Dixon is a devolution minute lodged in June 2007. In the case of Blair a devolution minute was tendered on the last day of the hearing of these appeals.
Submissions for the appellants
[5] Mr. Shead, who appeared for the remaining appellants, presented a wide-ranging and essentially unstructured submission. We endeavour to summarise it. He made it plain at the outset that, although petitions for recovery of documents had been framed and lodged on behalf of each of his clients, these petitions were both inappropriate and unnecessary. It was maintained that each appellant had the right of disclosure of "what was necessary to meet the requirements of Article 6(1) of the Convention". Performance of that duty was a matter for the Crown, which had possession (or the means of obtaining possession) of all the material. The Crown had in the past inappropriately sought to divide responsibility between itself and the police or other agencies. But that division could not survive the decisions of the Privy Council in Sinclair v HM Advocate 2005 SC (PC) 28 and Holland v HM Advocate 2005 SC (PC) 3. The issues were whether the appellants had had a fair trial and whether, in the absence of proper disclosure, the appeal proceedings could comply with Article 6. The Crown, it seemed, accepted that the appellants had not had a fair trial at first instance - for example, there had not (as required by Sinclair) been disclosure of all prior statements of Crown witnesses.
[6] In McLeod v HM Advocate (No. 2) 1998 JC 67 the Crown had accepted before the court that it had a duty of disclosure. But in practice it had never discharged that duty. McLeod, which was concerned with the common law, was, however, no longer relevant, as the decisions in Holland and in Sinclair, which were concerned with Convention rights, bound this court. These decisions were concerned with important but limited aspects of the duty of disclosure. The mechanism envisaged by McLeod (applications by the accused in the form of a petition for recovery of documents or other material) was unsatisfactory. It was derived from civil proceedings and was beset with inappropriate concepts, such as a "fishing diligence". In most criminal cases the accused would, in the nature of things, not know what material in the hands of the Crown or its agencies would be helpful to his case or would undermine the Crown case. The Lord Justice General in McLeod had been wrong to describe procedure by commission and diligence as the procedure for securing disclosure; it was only one of several mechanisms. In cases such as the present the appropriate course was for the court to make, under section 6 of the Human Rights Act 1998, an order for disclosure on the Crown as a public authority. The court also had statutory powers (under the Criminal Procedure (Scotland) Act 1995) and powers at common law to enforce the Crown's obligation, though the Crown had an obligation ex proprio motu to perform that duty.
[7] Difficulty was caused because the Crown did not have in place any duly recorded practice as to how the obligation of disclosure had, in any particular case, been addressed and complied with. In Sinclair the Crown had said that it had issued a Practice Statement on Disclosure but made it clear that this was only to comply with the procedural requirements following the "Bonomy Reforms" and not because it was implementing the performance of its duty of disclosure. Any such Practice Statement was entirely defective as the Crown did not have a proper understanding of what it was obliged to disclose and an accused/appellant could not scrutinise the performance of the obligation of disclosure. Until at least the decision in Sinclair it had not been the practice of the Crown to disclose prior written statements of witnesses. There had been no discussion before the Privy Council in Sinclair or Holland about the appropriateness of commission and diligence procedure; but the way that procedure operated in practice tended to undermine, rather than to secure discharge of, the obligation of disclosure.
[8] In the present case there was no suggestion that material was being withheld on the basis of public interest immunity. The process of due disclosure must take place at the trial stage, which admittedly had in these cases not been done. At the appeal stage the defect was irremediable. Article 6.3 was concerned with preparation in advance of trial. Article 6.1 was breached when material evidence was not disclosed. In some cases disclosure at the appeal stage of previously undisclosed material evidence might be too late; on any view, failure to disclose such material at the appeal stage was an obvious breach giving rise to an unfair trial. An unfair trial automatically gave rise to a miscarriage of justice. The convictions could not stand.
[9] There was an obligation on the Crown to organise its arrangements so as to comply with disclosure requirements under Article 6 (Warnes v HM Advocate 2000 SCCR 1127 at para. [10]). In England and Wales there was a system, which included appointment of a "disclosure officer", to supervise compliance with disclosure obligations. There was a system of lists and schedules. There was also a Disclosure Manual prepared by the Crown Prosecution Service. After Holland and Sinclair a request had been made of the Crown by the Chairman of the Faculty of Advocates Criminal Bar Association for disclosure of its operative rules; but no substantive reply had been received. The requirement of disclosure was not restricted to particular classes of material such as witness statements, previous convictions and "unused" forensic materials. It was the content of documents and other materials which was significant. In some cases information contained on HOLMES (Home Office Large and Major Enquiries System) would fall to be disclosed.
[10] The Crown, after McLeod and prior to Holland, had adopted in relation to previous convictions the procedure described in Holland at para. [67]. A major flaw in...
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