Moral Legitimacy and Disclosure Appeals

Sinclair v HM Advocate[2005] UKPC D2, 2005 1 SC (PC) 28 at para 33 per Lord Hope of Craighead. It has since been suggested that it might be preferable to consider whether the evidence might, rather than would, be relevant to the prosecution or defence case: McInnes v HM Advocate[2010] UKSC 7 at para 39 per Lord Brown of Eaton-under-Heywood. Evidence covered by “public interest immunity” need not be disclosed and will, accordingly, be ignored here. For discussion, see P Duff, “Disclosure of evidence and public interest immunity (PII)” 2007 SLT (News) 63. See also Criminal Justice and Licensing (Scotland) Bill ss 102–107 (full text available at http://www.scottish.parliament.uk/s3/bills/24-CrimJustLc/b24s3-introd.pdf).

Criminal Justice and Licensing (Scotland) Bill ss 89(3)(a)-(c). The Bill was introduced into the Scottish Parliament on 5 March 2009. For criticism, see F Stark, “Legislating the duty of disclosure” (2009) 13 EdinLR 493 at 494–495.

[2005] UKPC D1, 2005 1 SC (PC) 3.

[2005] UKPC D2, 2005 1 SC (PC) 28.

For a thorough review of the case law, see P Duff, “Disclosure appeals: a plea for principle”, in J Chalmers, L Farmer and F Leverick (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010, forthcoming).

Duff (n 7). See further, R Johnston, “McInnes v HM Advocate: time for a(nother) definitive decision on disclosure” (2009) 13 EdinLR 108.

[2010] UKSC 7. For the appeal court's decision, see [2008] HCJAC 53, 2009 JC 6, discussed in Johnston (n 8); F Stark, “McInnes v HM Advocate: more fuel for the reformer's fire?” 2008 SLT (News) 261.

Two other cases, McDonald v HM Advocate[2008] UKPC 46, 2008 SLT 993 and HM Advocate v Murtagh[2009] UKPC 35 were decided by the Privy Council shortly before the Supreme Court assumed jurisdiction over devolution cases. McDonald is discussed in P W Ferguson, “McDonald v HM Advocate” 2008 SLT (News) 246.

See, also, Allison v HM Advocate[2010] UKSC 6.

Duff (n 7). Although Duff's argument was crafted before the Supreme Court considered McInnes's appeal, his point remains valid. Interestingly, the need for the Supreme Court to tread carefully when considering issues arising from Scottish criminal cases was alluded to in McInnes v HM Advocate[2010] UKSC 7 at para 5 per Lord Hope of Craighead.

See above at n 2.

They are not, however, identical. See below at B for the balancing act envisaged by the full bench in Lawrie v Muir1950 JC 19.

1950 JC 19.

For discussion of this area of the law, see: P Duff, “Admissibility of improperly obtained evidence in the Scottish criminal trial: the search for principle” (2004) 8 EdinLR 152; P Duff, “Irregularly obtained evidence: the Scottish solution” (2004) 8 International Journal of Evidence and Proof 77.

See below at E.

See below at F.

The irregularity can also arise from the actions of non-state actors – for example: a landlady (Howard v HM Advocate2006 SCCR 321); a nightclub steward (Wilson v Brown1996 JC 141); or a member of the public (Wightman v Lees 2000 SLT 111). The article will, for the sake of brevity, refer to the police actors only as – in virtually all prosecutions – it will be the Crown which fails to disclose material evidence. (On private prosecutions, see n 48 below.)

See, for example, Bell v Hogg1967 JC 49, where the accused could have asked to go to the toilet and washed his hands, thus destroying vital evidence that he had been handling copper (which he was suspected of stealing). See, further: McHugh v HM Advocate1978 JC 12; below at E. Cases such as Bell v Hogg suggest that a search can be rendered legal by urgency. Nevertheless, there has still been a failure to follow procedure, i.e. an irregularity.

See, for example: HM Advocate v Cumming1983 SCCR 15; McAvoy v Jessop 1988 SLT 621. The same approach has been taken where the terms of a warrant are exceeded – Singh v HM Advocate2001 JC 186. In many of these cases, counsel does not appear to have relied on Lawrie v Muir, which might go some way to explaining the present position (see, in this regard, the confusing situation which arose in McAnea v HM Advocate2000 JC 641).

1950 JC 19 at 26.