William Charles Hemming Petitioner Against HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 17 February 1997 |
| Neutral Citation | 1997 SCCR 257 |
| Docket Number | No. 18. |
| Date | 17 February 1997 |
| Court | High Court of Justiciary |
JC
Lord Osborne.
Procedure—Solemn procedure—Commission and diligence—Recovery of documents—Statements made to police—Whether recoverable—Whether confidential—Criminal Procedure (Scotland) Act 1995 (cap 46), secs 260 and 263(4)1
A pannel was charged with attempted murder. He maintained that certain Crown witnesses might have colluded in providing statements against him to the police. In those circumstances, he petitioned the High Court of Justiciary seeking an order for the recovery of those statements. The Crown opposed the petition on the grounds that (a) there was a general public interest in maintaining the confidentiality of the statements; and (b) that the purpose of recovery was only to enable the statements to be used to attack the credibility of the witnesses.
Held (1) that, as the Lord Advocate had taken the public interest objection in this case, the court had to accept that to grant the order sought would cause damage to that interest as the court could not review the Lord Advocate's judgment in that respect; (2) that, accordingly, the court had to examine whether there existed some other aspect of the public interest, of an overriding nature, which should be recognised; (3) that a fundamental aspect of the public interest existed which required the court to ensure that, in criminal proceedings before it, so far as possible, justice had to be done and miscarriages of justice avoided, and that that responsibility of the court involved the duty to see that there was a fair hearing in which a full opportunity was afforded to an accused to undertake a critical examination of the Crown's case against him and, in particular, to challenge in cross-examination the quality of the evidence adduced to support it; (4) that the ability to use the provisions of
sec 263(4) of the Criminal Procedure (Scotland) Act 1995 was crucial to the provision of such an opportunity; and (5) that that aspect of the public interest was of a high and overriding nature; and ordergranted.Opinion that it would only be in cases where substantial reasons could be demonstrated why the recovery of police statements was necessary in the interests of justice that similar applications would be granted.
William Charles Hemming was charged on an indictment at the instance of the Right Honourable the Lord Mackay of Drumadoon, QC, Her Majesty's Advocate, the libel of which set forth a charge of attempted murder.
On 7 February 1997 the...
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