McDonald v HM Advocate
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead,Lord Bingham of Cornhill,Lord Scott of Foscote,Lord Rodger of Earlsferry,Lord Neuberger of Abbotsbury |
| Judgment Date | 16 October 2008 |
| Neutral Citation | [2008] UKPC 46 |
| Court | Privy Council |
| Docket Number | Appeals No 23, 24 and 26 of 2008,No 1 |
| Date | 16 October 2008 |
[2008] UKPC 46
Privy Council
Present at the hearing:-
Lord Hope of Craighead
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Neuberger of Abbotsbury
These three appeals raise issues about the duty of disclosure that rests on the Crown under article 6(1) of the European Convention on Human Rights by which every accused person is guaranteed a right to a fair trial. They have come before the Board as raising devolution issues because section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive, which includes the Lord Advocate, has no power to do any act so far as it is incompatible with any of the rights and freedoms in the Convention. In each case the appellant was convicted of murder and has appealed against his conviction. In each of these appeals petitions have been lodged for the recovery of documents from the Crown. Associated with those petitions devolution minutes were also lodged in the appeal process. It is the issue raised in those minutes that the Board has been asked to consider under para 13 of Schedule 6 to the 1998 Act.
The facts
(a) McDonald
The appellant John McDonald went to trial at the High Court of Justiciary in Glasgow in August 2005. He was charged with murder, assault and three contraventions of the Firearms Act 1968. In 1 September 2005 he was convicted of all charges against him. On 22 September 2005 he was sentenced to life imprisonment with a punishment part of 18 years in respect of the charge of murder. He was sentenced to 2 years imprisonment concurrently on the assault charge and to 4 years, 3 years and 7 years imprisonment concurrently in respect of the contraventions of the Firearms Act 1968. On 23 December 2005 he lodged a note of appeal against his conviction. There was a single ground of appeal. It related to the evidence of a witness who had been referred to at the trial as witness "P". His identification of the appellant was essential to the Crown case. The ground of appeal, after giving a brief description of his evidence, states:
"On the basis of the nature of identification by reference only to the perpetrator's eyes, and on the basis of the manner of the giving of his evidence, no reasonable jury properly directed ought to have attached sufficient weight to that evidence to find a sufficiency of credible and reliable identification that would allow them to convict the appellant."
Leave to appeal on this ground was granted on 29 March 2006.
(b) Dixon
The appellant Brendan Christopher Dixon went to trial at the High Court of Justiciary in Kilmarnock in February 2005. He was charged, along with two co-accused, with murder and an attempt to defeat the ends of justice. On 1 March 2005 he was convicted on both charges. He was sentenced to life imprisonment with a punishment part of 25 years on the charge of murder. He was sentenced to five years imprisonment concurrently on the charge of attempting to defeat the ends of justice. On 30 June 2005 he lodged a note of appeal against conviction and sentence. His grounds of appeal are, in summary: (1) that the trial judge wrongly refused a submission that there was no case 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 these grounds was granted on 14 February 2006.
(c) Blair
The appellant Richard Blair went to trial at the High Court of Justiciary in Glasgow in April 2005. He was charged, along with a number of co-accused, with a number of offences including murder. On 29 April 2005 he was convicted of murder and sentenced to life imprisonment with a punishment part of 15 years. On 19 August 2005 he lodged a note of appeal against his conviction. His grounds of appeal are, in summary: (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; (2) that the trial judge wrongly refused a submission that the appellant had no case to answer, on the basis that there was insufficient evidence of identification to entitle the jury to convict the appellant; 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 taken from a Crown witness named Paul Wilson. Leave to appeal on these grounds was granted on 22 November 2005.
The proceedings in the Appeal Court
On 9 May 2007 a procedural hearing in the appeals of McDonald and Dixon was held before Lord Nimmo Smith. Counsel for the appellants stated that the Crown had been declining requests for statements and previous convictions that would have been available before the trial. He asked for them to be produced and submitted that it was not necessary for him to lodge a specification of documents as the Crown had a duty to disclose them. The advocate depute stated in reply that the Crown would oppose a request for what he described as a blanket disclosure of all statements, reports and other documents. It was the Crown's view that a petition for the recovery of documents, if appropriate in wide terms, should be lodged and considered by the court. The consideration of the matter was continued to 6 June 2007 to enable the appellants to lodge their petitions, reserving for discussion at that hearing counsel's opinion that a petition was unnecessary. On 5 June 2007 petitions for the recovery of documents from the Crown were lodged on behalf of both McDonald and Dixon. The specifications attached to their petitions were in these terms:
"1. All material in the possession or under the control of the Lord Advocate which ought to have been (and ought to be) disclosed in terms of his 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."
Copies of the statements provided by P's mother were disclosed to the defence on 29 August 2007. On 8 November 2007 copies of the statements provided by P's sister and younger brother were disclosed to the defence on 8 November 2007.
On 5 June 2007 the appellants McDonald and Dixon also lodged devolution minutes in which they averred that the Crown had an obligation to disclose to the defence any information which might tend to exculpate them or undermine the case against them; that as there was no means by which the court could ascertain for itself whether their Convention rights were being respected there could not be said to be adequate judicial safeguards in place to ensure compliance with the right in question; and that in any event there was reason to suppose that the Lord Advocate had not discharged the obligation laid on her by article 6(1). In the light of these averments the following propositions were set out:
"In the circumstances a fair hearing cannot be guaranteed.
Separatim. There is in any event a material risk that any future hearing would not be fair.
Separatim. The failure of the Crown to make known the system operated to respect the right of disclosure under article 6(1) means that to seek to support the conviction would be an abuse of process.
For the Crown to continue with the prosecution and seek to support the conviction would be for the Lord Advocate to act incompatibly with the Minuter's right to a fair hearing guaranteed by article 6(1) of the European Convention on Human Rights. Such an act would be ultra vires. Reference is made to s 57(2) of the Scotland Act 1998."
On 17 July 2007 the appellant Blair lodged a petition for the recovery of documents, all of which are said to relate to Paul Wilson. The specification attached to his petition was in these terms:
"1. All documents showing or tending to show the mental health problems of Mr Wilson, and in particular any examples of how his health problems affects his behaviour.
2. All documents showing or tending to show whether the mental health problems of Mr Wilson affected his ability or capacity to tell the truth, and whether he was considered to be truthful.
3. All documents showing or tending to show whether the mental health problems of Mr Wilson made him a suggestible individual.
4. All documents showing or tending to show whether or not Mr Wilson would have been able to give a coherent account of an incident which had occurred sometime in the past.
5. All documents showing or tending to show what information was passed to the Crown in connection with Mr Wilson's health in connection with the case and in particular in respect of the s 259 notice."
On 18 July 2007 the Appeal Court granted warrant for the service of this petition on a number of parties who were potentially interested in the application.
A hearing on the petitions for recovery by all three appellants took place in the High Court of Justiciary before the Lord Justice General (Hamilton), Lord Nimmo Smith and Lord Philip on 23 and 24 August and 13 and 14 November 2007. On the last day of the hearing the...
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