Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Moral Legitimacy and Disclosure Appeals

Document Cited authorities 32 Cited in Related
Vincent
DOI10.3366/elr.2010.0003
Date01 May 2010
AuthorFindlay Stark
Pages205-224
Published date01 May 2010
INTRODUCTION

In Scots law, the Crown is under a duty to disclose material evidence to the defence.1

The duty was first formally recognised in McLeod Ptr 1998 JC 67. Prior to this, some denied any such duty existed: Higgins v HM Advocate 1990 SCCR 268 at 269 per Lord Cowie.

“Material” evidence has, to date, been defined as “any evidence which would tend to undermine the prosecution's case or … assist the case for the defence”.2

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).

 This position is mirrored in the Criminal Justice and Licensing (Scotland) Bill, currently before the Scottish Parliament, which proposes that the Crown be required to disclose information which would “materially weaken or undermine the prosecution case … materially strengthen the accused's case, or … [be] likely to form part of the prosecution case”.3

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.

Since the “revolutionary”4

See P Duff, “Sinclair and Holland: a revolution in ‘disclosure’ ” 2005 SLT (News) 105.

decisions of the Privy Council in Holland v HM Advocate5

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

 and Sinclair v HM Advocate,6

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

 the appeal court has acted inconsistently when considering appeals based on the non-disclosure of allegedly material evidence – what in this article are referred to as “disclosure appeals”.7

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).

 As Peter Duff has recently argued, it is unclear what test is to be applied, and how stringently.8

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

 This uncertainty has led to further cases – most recently McInnes v HM Advocate9

[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.

 – being sent to the Supreme Court for consideration.10

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.

 Duff doubts, however, whether the Supreme Court's decision in McInnes11

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

 can resolve matters satisfactorily, given its (or, rather, the Privy Council's) turf war with the appeal court on the issue of disclosure appeals in the past.12

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.

 Furthermore, the proposals for legislative reform of the duty of disclosure are silent on the issue of appeals against conviction, concentrating instead on the process by which disclosure ought to take place and the steps that the Crown can take to withhold information on grounds of public interest immunity.13

See above at n 2.

 A fresh approach is thus called for. This article suggests one

It will be argued that, in considering disclosure appeals, the appeal court and the Supreme Court should adopt a “balancing” approach. The two interests to be weighed are the accused's interest (as a citizen) in not being subjected to the morally illegitimate14

For definition, see below at C.

use of the state's power to punish (hereinafter “the accused's interest (as a citizen)”) and the public's interest in having the factually guilty convicted irrespective of any “technical” fault in the Crown's case (hereinafter “the public's interest in conviction”). These interests are similar15

They are not, however, identical. See below at B for the balancing act envisaged by the full bench in Lawrie v Muir 1950 JC 19.

 to those identified as important by a full bench in Lawrie v Muir16

1950 JC 19.

 – the leading case on the admissibility of irregularly obtained physical evidence.17

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.

 It will be contended that much can be gleaned from the way in which the appeal court has, since Lawrie, developed a number of factors which bear upon those conflicting interests.18

See below at E.

 These have guided the courts and focussed arguments in cases concerning irregularly obtained evidence. It will be concluded that similar factors could be established for use in disclosure appeals.19

See below at F.

The article begins, however, by justifying the potentially controversial analogy between appeals based on non-disclosure and decisions based on irregularly obtained evidence.

 PROCEDURAL FAILURES BY THE STATE

In irregularly obtained evidence cases, the state (or, more accurately, its investigatory and/or prosecutorial organs), having failed to follow proper procedure, seeks to have this defect excused by the court, whether at trial or on appeal.20

On the need for the Crown to offer an excuse for any irregularity, see Lawrie v Muir 1950 JC 19 at 27 per the Lord Justice General (Cooper). In the appeal setting, the question is whether the admission of the contested evidence constituted a miscarriage of justice.

There are sometimes strong reasons for excusing an irregularity. For example, the police,21

The irregularity can also arise from the actions of non-state actors – for example: a landlady (Howard v HM Advocate 2006 SCCR 321); a nightclub steward (Wilson v Brown 1996 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.)

 faced with a situation where highly probative evidence could easily disappear or be destroyed, might act contrary to the rules of, say, lawful search.22

See, for example, Bell v Hogg 1967 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 Advocate 1978 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.

 In other cases, there are compelling reasons to exclude irregularly obtained evidence. If, for instance, the police searched a property under a defective warrant (or no warrant at all) where the proper procedure was readily capable of being followed, the courts have typically been unwilling to admit any evidence found in the illegal search.23

See, for example: HM Advocate v Cumming 1983 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 Advocate 2001 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 Advocate 2000 JC 641).

 The appeal court is sensitive, however, to the fact that each case will depend on its own circumstances. It does not, therefore, always admit or exclude irregularly obtained evidence. Instead, it balances, as the Lord Justice General (Cooper) explained in the leading case of Lawrie v Muir:24

1950 JC 19 at 26.

the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities … and … the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground.

These competing interests are, unhelpfully, often now mixed together in the rather bland notion of a “fair trial” under article 6 of the European Convention on Human Rights.25

Following the incorporation of the ECHR into Scots law (through the Scotland Act 1998 s 57 and the Human Rights Act 1998), the issue in relation to irregularly obtained evidence now tends to be framed in terms of “fairness”. Despite this, the courts have been keen to point out that discussion of article 6 – the right to a fair trial – is actually superfluous as the law following Lawrie v Muir always required fairness. See, for example, McGibbon v HM Advocate 2004 JC 60 at para 29 per Lord Johnston. Note that article 8 of the ECHR – the right to privacy – has also been raised in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT