McLeod (Alistair) v HM Advocate (No.2)
| Jurisdiction | Scotland |
| Judgment Date | 19 December 1997 |
| Neutral Citation | 1998 SCCR 77 |
| Date | 19 December 1997 |
| Docket Number | No 12 |
| Court | High Court of Justiciary |
Full Bench
LJ-G Rodger, LJ-C Cullen, Lord Hamilton, Lady Cosgrove and Lord Nimmo Smith
Procedure—Solemn procedure—Commission and diligence—Recovery of documents—Statements made to police—Crown not claiming general public interest immunity—Whether recoverable
The pannel was charged with certain contraventions of the Misuse of Drugs Act 1971 committed between 1990 and 1995. During a raid on his club premises in August 1995, 77 people were detained and interviewed by the police who used a pro forma questionnaire extending to 21 pages to record the answers given by the detainees. The pannel petitioned the High Court of Justiciary under the nobile officium seeking an order for the recovery of those statements so as to enable him to prepare and present his defence. The averments in the petition did not specify the defence but stated that difficulties had been experienced in precognoscing the detainees, only 30 of whom had been cited as witnesses for the Crown, because they had no precise recollection of their answers due to the passage of time or because they had been drinking at the time they were interviewed. The Crown opposed the petition on the ground that no sufficient reason had been advanced to justify the order for recovery. The judge (Lord Coulsfield) refused the petition and the pannel appealed to the High Court of Justiciary to recall the judge's decision.
Held (by a court of five judges) (1) that Scottish criminal procedure proceeded on the basis that the Crown had a duty at any time to disclose to the defence information in their possession which would tend to exculpate the pannel; (2) that where a pannel sought commission and diligence for the recovery of documents, whether from the Crown or third parties, he required to explain the basis on which he sought the order; (3) that the court only granted such orders when satisfied that they would serve a proper purpose and would be in the interests of justice which in turn meant that the particular documents would be likely to be of material assistance to the proper preparation or presentation of the pannel's defence; and (4) that the pannel had failed to show how the documents related to the charge or charges and the proposed defence to them; and petition refused.
Opinion (per the Lord Justice-General (Rodger)) that in many cases a simple order for the production of the documents in the hands of the Crown, as a party to the proceedings, would be the appropriate remedy rather than a commission and diligence.
Authorities considered.
Alistair McLeod was charged on an indictment at the instance of the Right Honourable The Lord Hardie, QC, Her Majesty's Advocate, QC, the libel of which set forth contraventions of the Misuse of Drugs Act 1971 and the Licensing (Scotland) Act 1976.
The pannel presented a petition to the nobile officium of the High Court of Justiciary, the averments of which are set forth in the opinion of the Lord Justice-General (Rodger).
The petition called before Lord Coulsfield in the High Court for a hearing after which his Lordship refused the prayer of the petition.
The pannel thereafter appealed to their Lordships in the High Court of Justiciary for an order recalling Lord Coulsfield's decision.
Cases referred to:
Advocate (HM) v HassonSC 1971 JC 35
Advocate (HM) v Ward 1993 SLT 1202
Benendoun v FranceHRC (A/284) [1994] 18 EHRR 54
Downie v HM AdvocateSC 1952 JC 37
Edwards v United Kingdom (A/247–B) [1992] 15 EHRR 417
Friel v Chief Constable of StrathclydeSC 1981 SC 1
Hemming v HM AdvocateSC 1997 JC 140
Higgins v HM AdvocateSC 1997 JC 212
McFadyen v AnnanSC 1992 JC 53
McLeod v HM Advocate 1998 SLT 60
R v Black “The Times” 1 March 1995
Slater v HM Advocate 1928 JC 94
Smith v HM AdvocateSC 1952 JC 66
Textbooks etc referred to:
Hume, Commentaries, ii, 402 (n 3)
Renton and Brown, Criminal Procedure (3rd edn), p 77 (n 1)
The cause called before the High Court of Justiciary for a hearing on 3 October 1997 when their Lordships remitted the cause to be heard by a bench of five Lords Commissioners of Justiciary.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), the Lord Justice-Clerk (Cullen), Lord Hamilton, Lady Cosgrove and Lord Nimmo Smith for a hearing after which their Lordships made avizandum.
At advising, on 19 December 1997—
LORD JUSTICE-GENERAL (Rodger)—The appellant is Alistair McLeod who was indicted for trial at Stranraer sheriff court on 1 September 1997. In relation to the proceedings on that indictment the appellant presented a petition seeking to recover certain documents. That petition was dismissed by the presiding judge (Lord Coulsfield) and the appellant appealed. On 3 October it was decided to remit the appeal to be heard by a bench of five judges. For reasons which it is not necessary to rehearse, on the following day the procurator fiscal served on the appellant a fresh indictment in identical terms and he called that indictment on 11 November. A first diet in respect of this indictment has been fixed for 6 January 1998 and a trial diet for 19 January 1998. I mention these matters simply to record the position: neither counsel for the appellant nor the Solicitor-General submitted that they affected this appeal in the petition.
The indictment contains four charges, all relating to the period from March 1990 to August 1995. The first is a charge of permitting or suffering the smoking of cannabis or cannabis resin in premises known as the Kat House at the Bluebell Hotel in Lockerbie; the second and third are similar charges but relate to ecstasy and amphetamine respectively, while the last charge is of allowing under-age drinking.
The charges resulted from a period of police observation of the premises which culminated in a raid on 12 August 1995. On that occasion the police detained and questioned 78 persons, including the appellant. The Solicitor-General informed us that proceedings had been taken against a number of these persons and that the Crown had decided to postpone the proceedings against the appellant until the proceedings against the others had been completed. This in part explained why the appellant was only now being brought to trial. I mention en passant that the publicity surrounding those proceedings was the reason why this court ordered that the appellant's trial should take place in Stranraer rather than in Dumfries: McLeod v HM Advocate.
When the police detained and interviewed the 78 people, they used apro forma document which contained a series of questions and spaces for the police officer to record the answers given by the person interviewed. The questionnaire relating to the appellant is a production and that form at least was signed by the appellant and the police officers on each of its 21 pages. The questions cover matters such as whether the detainee used controlled drugs, whether he had been at the Kat House before and, if so, how often; whether he was there on particular dates and whether he had used or obtained controlled drugs and, if so, from whom. There are questions about whether members of staff were aware of any drug activities and about any involvement which they may have had in them. There are also questions about how often the appellant visited the premises, about what he did when he was there and about the extent of his involvement in the day to day running of the establishment.
Although 77 persons apart from the appellant were interviewed, only the names of a limited number of them appear on the list of Crown witnesses appended to the indictment. The appellant's advisers have, however, been supplied with a full list of the names and addresses of those who were interviewed. The appellant's agents have precognosced some of the 77 persons. They have been unable to contact a number of them. Of those whom they have precognosced, some have indicated that they can no longer remember the position because the events occurred two years ago while others have said that they cannot remember because they had been drinking at the time. In that situation the appellant presented a petition to the High Court asking the court to grant a commission and diligence for recovery of all 77 questionnaires. Although in the prayer the appellant seeks a commission and diligence, in many cases a simple order for the production of the documents in the hands of the Crown, as a party to the proceedings, would be the appropriate mechanism for providing the type of remedy which the appellant wishes. It was accepted at all stages of the present proceedings that, though the documents were rightly described as pro forma questionnaires, they were for all relevant purposes indistinguishable from police statements,ie statements either given by police officers themselves or taken from witnesses by police officers. It was also accepted that such police statements should be distinguished from Crown precognitions. Statement 5 in the petition is in the following terms: “It is necessary for the proper preparation and presentation of the defence of the accused that those representing him have sight of the said questionnaires and of other interviews conducted by the police immediately following said raid on 12th and 13th August 1995. It is necessary so that the accused can be made fully aware of the case against him. It is necessary so that the accused can be fully aware of what was said by the detainees at the time in order that he can properly consider the position of those on the Crown list of witnesses and also the response of the others and their potential as defence witnesses. Difficulties have been experienced in precognoscing witnesses who, due to the passage of time, have no precise recollection of the answers they gave. Others precognosced have indicated that [they] had been drinking at the time and cannot recall the answers they gave. It is also necessary that he be aware of the...
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