McCarthy v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Brodie,Lord Drummond Young |
| Judgment Date | 13 February 2020 |
| Neutral Citation | [2020] HCJAC 52 |
| Court | High Court of Justiciary |
| Docket Number | No 10 |
[2020] HCJAC 52
Lord Justice General (Carloway), Lord Brodie and Lord Drummond Young
Hill v Procurator Fiscal, Lerwick SAC, 23 November 2016, unreported
McClymont v HM Advocate [2020] HCJAC 1; 2020 SCCR 160; 2020 GWD 5-77
McDonald v HM Advocate [2008] UKPC 46; 2010 SC (PC) 1; 2008 SLT 993; 2008 SCL 1378; 2008 SCCR 954; [2009] HRLR 3; [2009] UKHRR 46
McLeod v HM Advocate (No 2) 1998 JC 67; 1998 SLT 233; 1998 SCCR 77
Macnaughton v Macnaughton's Trs 1953 SC 387; 1953 SLT 240
Coulsfield (Rt Hon Lord), Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland (B53024) (Scottish Government, Edinburgh, September 2007) (Online: https://www2.gov.scot/Publications/2007/09/11092728/0) (4 December 2020))
Justiciary — Procedure — Disclosure — Application under sec 128 of Criminal Justice and Licensing (Scotland) Act 2010 — Whether sec 121 of 2010 Act applied in circumstances in which the Crown and police had stated to appellant's legal representatives that information sought did not exist — Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), sec 121
John Joseph McCarthy was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment the libel of which set forth offences under the Misuse of Drugs Act 1971 (cap 38). On 1 November 2019, the appellant lodged an application for a ruling on whether sec 121(3) of the Criminal Justice and Licensing (Scotland) Act 2010 applied to information he requested. The judge refused the application. The appellant appealed against the refusal to their Lordships in the High Court of Justiciary.
Section 70A of the Criminal Procedure (Scotland) Act 1995 (cap 46) provides that, where an indictment has been served upon accused person, the accused requires to lodge a statement of defence setting out, inter alia, the nature of any information that he requires the prosecutor to disclose, by reference to his defence, and the reasons why such disclosure is necessary.
Section 116 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) provides, “information … means material of any kind given to or obtained by the prosecutor in connection with the proceedings.” Section 117 requires, inter alios, the police to provide the Crown with “details of all the information which may be relevant to the case” of which they are aware and which has been obtained during their investigation. Section 142(2) requires the prosecutor to review the relevant information of which he is aware and to disclose to the accused any information to which sec 121(3) applies, which requires the disclosure of, inter alia, any information which would materially weaken the prosecution case or strengthen the defence case, which is a continuing duty. Where the accused has lodged a statement of defence and considers that the prosecutor has failed disclose to the accused an item of information to which sec 121(3) applies, sec 128 permits the accused to apply to the court for a ruling on whether sec 121(3) applies to the information in question.
The appellant was charged with being concerned in the supplying of drugs and was indicted to a preliminary hearing on 28 September 2018. A defence statement set forth his denial of the charges and referred to a special defence of coercion. The trial diet was adjourned to allow an investigation in relation to the identity and whereabouts of a man named ‘Lee’, relevant to the appellant's special defence of coercion. A supplementary defence statement was lodged stating the appellant had been the victim of entrapment. It sought disclosure, inter alia, of information from the police pertaining to the involvement of ‘Lee’. The Crown advised that ‘Lee’ was not an undercover police officer. The appellant lodged an application for a ruling on whether sec 121(3) of the 2010 Act applied to the information requested. At the hearing, the Crown advised, inter alia, that no covert tactics had been employed, that the police did not know who ‘Lee’ was, and that, as the information did not exist and could not be given to the defence, it was not information as defined by sec 121. The judge found that the information sought was not covered by sec 121 as it would neither materially weaken nor undermine evidence likely to be led by the prosecutor, nor was it information that would materially strengthen the appellant's case, nor did it form part of the evidence to be led by the prosecutor, and refused the application. The appellant appealed.
The appellant argued that the judge erred in failing to make a ruling on whether sec 121(3) of the 2010 Act applied to the information in the application and in failing to hold that it did. It was submitted that the judge erred in holding that sec 128 permitted her to consider whether the Crown possessed the information, what steps it had taken to obtain it and whether it had met its disclosure obligations, none of which was relevant, as the purpose of sec 128 was to secure a ruling when there was a disagreement on the relevance of information and to inform authorities of their duty to disclose the information.
Held that: (1) the purpose of the provision which permitted an accused to ask for a ruling on whether sec 121(3) of the 2010 Act applied to the information in question was designed to operate in circumstances in which the Crown was in possession of information and where there was a dispute as to whether that information fell within the parameters of the section; the provision was not to be used as a vehicle for airing uncontested glimpses of the obvious (para 23); (2) while any information that the drugs held by the appellant had been supplied by a police officer, or a person acting under their direction, would fall to be disclosed, as would information which might enable the appellant to locate ‘Lee’, the basis of the opposition had been that the information did not exist, and that the appellant had proffered no basis for supposing that it did exist, and, accordingly, any ruling which required to the Crown to disclose information where there was no reason to suppose that such information existed was an academic exercise which served no purpose (para 24); and appeal refused.
Observed that: (1) the disclosure scheme presupposed that an accused would abide by its terms and was intended to secure a fair trial by making clear what the Crown require to disclose to the defence representatives, and, for the system to operate as intended, defence representatives required to lodge the requisite statement within the time-scale; where no statement was lodged, or where such a statement was bland in form, it could not be assumed that the court would regard any later statement as validly lodged, and such a statement would only be competent if it stemmed from a material...
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