Scottish Human Rights Law Group

by John Scott

A talk delivered at the Central Law Training(Scotland)’s Human  Rights Conference in 2008.

 

In a Scottish context we do not have to dig around too far in the distant past to find an extremely unreceptive attitude towards ECHR.

In Kaur v Lord Advocate, 1981 SLT at p 330 Lord Ross said that, as the Convention was not part of the municipal law of the United Kingdom, the court was not, so far as Scotland was concerned, entitled to have regard to the Convention either as an aid to construction or otherwise. That opinion was expressed after a careful review of the English authorities. These consisted largely of various dicta in the Court of Appeal, where the judges stated that, if there was any ambiguity in the United Kingdom statute, the court may look at and have regard to the Convention as an aid to construction. But Lord Ross said that he shared the view of Diplock LJ, as he then was, that the Convention was irrelevant in legal proceedings unless and until its provisions had been incorporated or given effect to in legislation.

 

It might be thought that there was more to the Scottish approach than just barely concealed hostility. I think it is possible over the passing years to detect an underlying superiority complex. As ever it probably didn’t help that the Convention was explicitly a European treaty.

The extreme view expressed in Kaur softened over time and by 1999 the Convention was being expressly considered. On the civil side in 1996 we had T Petitioner and on the criminal we had McLeod Petitioner 1998 SCCR 77(a decision from late 1997) . McLeod as you know is the main Scottish authority concerning disclosure.

L J-G – In seeking to formulate the approach of our law we may, however, look at the decisions of the Strasbourg court just as we look at the decisions of any other court of authority to see what persuasive effect they may have.

The first bite of the Scotland Act came exactly 9 years ago tomorrow on Law Officers Day. Indeed the very first devolution issue surfaced later that same day. So how has the Convention fared in the 9 years since then? Are we better off than we were? I think the dust is still settling on some recent decisions from North and South of the Border but my own view at the moment is that we are pretty much back to where we were on 19th May 1999, if not perhaps even further back than that.

2007 ended with a degree of judicial impatience when it comes to Devolution Issues and ECHR generally. 2008 has seen more of the same.

ROBERTSON AND GOUGH v McFADYEN 2008 SCCR 20

(This is the 5 judge case relating to contempt of court. Mr. Gough is more often referred to as the Naked Rambler)

LORD JUSTICE CLERK

Article 6 and the common law of Scotland

[64] Counsel for the petitioner and the complainer has based his submissions on article 6. He has made only passing reference to the common law. It seems at times that contemporary practitioners believe that the Convention introduced the principle of fair trial into Scottish criminal procedure. Scottish criminal procedure is founded on that principle. It is the duty of this court constantly to reassess what fairness requires and to re-examine the presuppositions on which existing rules and practices are based. Where it is recognised that an accepted aspect of procedure is unfair, this court puts the matter right. In this way Scots law has extended its protection to accused persons in relation to such matters as pre-trial publicity, police questioning, and detention of witnesses in open court. In its consideration of the procedure for dealing with contempt of court, the court’s appreciation of fairness has developed stage by stage from the robust approach of a century ago. In this case, it is open to us to develop our procedure further.

[65] In some respects the incorporation of the Convention has enhanced the fairness of our system directly, for example by enabling the court to consider questions of unfairness in the operation of specific legislative provisions that previously it had to take as it found. More generally, it provides a fresh focus for reconsideration of domestic issues, as any Convention of its status must, and in that way influences our thinking in the development of the common law. It is not disputed that article 6 applies in each of these cases and that it requires the court to show both subjective and objective impartiality; but that requirement has long been recognised as an essential feature of the right to a fair trial at common law. In my view the fair trial issues raised in these particular cases can be satisfactorily resolved at common law.

LORD JOHNSTON

[109] On the more general question of interaction between Article 6 of the European Convention on Human Rights and the issue of dealing with contempt, I too would wish to emphasise that I do not consider Article 6, especially in relation to a fair trial, adds anything to or detracts in any way from the long-established rules in Scotland in relation to the issue of fair trial. Such has been enshrined in our law for centuries and while Article 6 may have re-emphasised the issue of bias, for example, or partiality, and also highlighted the question of timescales in the conduct of criminal proceedings, the fundamental issue of fairness has always been there to be determined and will continue to be determined, in my view, by the general rules of the Scots common law. Continued references in this context to Article 6 to my mind are both meaningless and superfluous.

Many cases have involved Devolution Issues being attached but not properly understood or argued. Unless cases are pled better and with greater consistency we can expect similarly unimpressed Judges this year. And even then we may continue to feel a backlash against outside interference, whether European or from London. During debate before our Judges there is a clear message when it comes to ECHR and especially the Privy Council –Get your tanks off our lawn. London is mentioned with a sneer. Some of the more seriously disparaging comments do not make it into the written judgments but the sense is clear enough.

And then we have the other side of the devolution issue equation – the JCPC. Even it has turned back the clock in relation to ECHR implications specific to Scotland. Previously the position in Scotland was much stronger than even in England because of the construction of s.57 (2) of the Scotland Act and its application to cases involving a breach of the “reasonable time” requirement of Article 6. Indeed it is probable that the majority of Devolution Issues since 1999 have related to delay, certainly in relation to those which have been successful. However, at the end of 2007 the JCPC issued its decision in the case of SPIERS v RUDDY 2008 SCCR 131

LORD RODGER OF EARLSFERRY

 

The basic difference of opinion between the majority and the minority in both R v HM Advocate 2003 SC (PC) 21 and Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72 was over the nature of the accused’s article 6(1) Convention right to a fair and public hearing for the determination of the criminal charge against him “within a reasonable time”. In particular, if the Crown delayed so that more than a reasonable time was allowed to go by, did this mean that – as I held – the prosecutor was, irretrievably, in continuing breach of the article, even if he then took steps to proceed to trial as expeditiously as possible? Or – as the seven-man majority held in Attorney General’s Reference – did any violation of the right cease when the prosecutor took steps to expedite the trial?

 

At the time of the two decisions, the case law of the European Court cast little light on the problem. Since then, the position has become clearer. Admittedly, as Mr Coppel pointed out, the European Court cases concern the nature of the appropriate remedy, rather than the nature of the violation of article 6(1). Nevertheless, they do point in favour of the view adopted by the majority in the Attorney General’s Reference. In other words, if the prosecutor speeds up, he is no longer delaying the proceedings and so is no longer violating article 6(1). In particular, in Kudla v Poland (2000) 35 EHRR 198, a case of delay in criminal proceedings, the European Court said, at p 237, para 158, that a remedy will be “effective” for purposes of article 6(1) if it prevents the alleged violation “or its continuation”. The Court went on to indicate, in para 159, that none of the remedies open to the applicant under Polish law “could have expedited determination of the charges” against him. This approach has been adopted in subsequent cases. It shows that expediting proceedings can indeed prevent the “continuation” of any violation. That is inconsistent with the view that the prosecutor is, inevitably, in continuing breach of article 6(1) once he has delayed unduly, so that the situation can only get worse. Since the prosecutor is not in continuing breach in such circumstances, section 57(2) of the Scotland Act 1998 has no application

It looks likely that the impact of the JCPC will diminish from the Sinclair and Holland cases in 2005 where Scottish convictions were quashed for the first time by a court sitting outside Scotland. With some dexterity on the part of the JCPC and even alacrity on the part of our own Appeal Court we may now be in almost exactly the same position as before the Scotland Act came into force. It is increasingly unclear what the courts make of the constitutional protections of the Scotland Act when it comes to ECHR and the criminal courts. Indeed it appears that the safeguards may be seen as hindsight checks following conviction rather than meaningful preventative rights.

 

 

PF GLASGOW v VON and HUME 2008 SCCR 265

(This case related to disclosure).

LORD JOHNSTON

We have considerable sympathy with the argument that the actions of the Crown were such that the whole case became contaminated by the alleged breach of Article 6 but in fact we consider that at the time of the Crown’s conduct through the Procurator Fiscal’s Office, Article 6 had not in fact been breached to a determinative factor.

It is important that it should be appreciated in the view of this Court that Article 6 in its main content is concerned with a fair trial and such cannot be determined as an issue except in the most exceptional and blatant cases, of which this is not one, until after a trial has taken place. It follows that if the respondents in this case had gone to trial against the background of the Crown’s attitude, which we have discussed, with no further action on its behalf, there can be no doubt that if the respondent had been convicted they would have had an almost unanswerable position in relation to breach of Article 6.

However, while what happens during the course of a process leading to a trial may ultimately be relevant to the determination of Article 6 after the trial, equally if it is capable of being cured, we consider thereafter the only issue at the intermediate stage is whether there has been oppression at common law since the time to determine the issue of Article 6 has not yet been reached.

In this respect, it seems to us the test in relation to oppression at common law and breach of Article 6 after trial raises precisely the same issues, namely have the accused persons been prejudiced by the action of the prosecuting authority.

 

 

 

Perhaps the reversion to former ways is an indication of how fair our system was already. Indeed there are many aspects of our law of which we should be proud. We should, however, be wary of complacency. There are many who think that the Scotland Act allowed ECHR considerations to help our courts blow away a number of obstructive cobwebs. On occasion our judges used it to do justice even more enthusiastically. In particular it was used as a significant tool for enforcing Crown accountability. It helped us to move further away from the idea of sole reliance on the Crown as arbiters of almost everything. An example of this is BURN PETITIONER 2000 SCCR 384 2) looked at 1995 McCluskey decision and overruled it- “In my view the proper course for me to take is to accept the Crown’s assertion without attempting any further enquiry”.

 

Now –“ in future the Crown must provide sufficient general information relating to the particular case to allow the sheriff to consider the merits of their motion that the accused should be detained.”

As the approach in VON is precisely the same approach as the European Court itself, following exhaustion of domestic remedies, it would be a matter of regret if our courts are not prepared to continue the use of ECHR to drive up standards and bolster protection at earlier stages of a prosecution.

 

DISCLOSURE

As mentioned earlier one area which was touched by ECHR, even before 1999, is disclosure. The law relating to disclosure has been in something of a state of flux since the Privy Council decisions in Holland and Sinclair in 2005. Lord Coulsfield has since reported and legislation is expected later this year, as well as changes in procedure. At the moment it appears that every effort is being made to restrict any obligation on the part of the Crown.

JOHN McDONALD, BRENDAN CHRISTOPHER DIXON and RICHARD BLAIR Appellant/Petitioners v HER MAJESTY’S ADVOCATE 2008 S.C.C.R. 154

After the notes of appeal had been lodged petitions were lodged seeking a commission and diligence for the recovery of documents. In the case of the first and second appellants the specification of documents referred only to ‘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 [sic] obligation under article 6(1) when read with section 57(2) of the Scotland Act 1998′. In the case of the third appellant the specification sought medical records of a child witness whose evidence had been given for health reasons without objection by way of a police statement. It was not suggested that the granting of any general order by the court for recovery of documents or other materials would assist in the presentation of the grounds of appeal, or, except perhaps in the case of the third appellant, that there were other arguable grounds on the basis of which, in the event of particular documents being recovered, the court would now allow any of these appeals to be presented.

L J-G Mr Shead, who appeared for the remaining appellants, presented a wide-ranging and essentially unstructured submission. We endeavour to summarise it. He made it plain at the outset that, although petitions for recovery of documents had been framed and lodged on behalf of each of his clients, these petitions were both inappropriate and unnecessary. It was maintained that each appellant had the right of disclosure of ‘what was necessary to meet the requirements of article 6(1) of the Convention’. Performance of that duty was a matter for the Crown, which had possession (or the means of obtaining possession) of all the material. The Crown had in the past inappropriately sought to divide responsibility between themselves and the police or other agencies. But that division could not survive the decisions of the Privy Council in Sinclair v HM Advocate and Holland v HM Advocate. The issues were whether the appellants had had a fair trial and whether, in the absence of proper disclosure, the appeal proceedings could comply with article 6. The Crown, it seemed, accepted that the appellants had not had a fair trial at first instance—for example, there had not (as required by Sinclair) been disclosure of all prior statements of Crown witnesses.

[6]

In McLeod v HM Advocate the Crown had accepted before the court that they had a duty of disclosure. But in practice they had never discharged that duty. McLeod, which was concerned with the common law, was, however, no longer relevant, as the decisions in Holland and in Sinclair, which were concerned with Convention rights, bound this court. These decisions were concerned with important but limited aspects of the duty of disclosure. The mechanism envisaged by McLeod (applications by the accused in the form of a petition for recovery of documents or other material) was unsatisfactory. It was derived from civil proceedings and was beset with inappropriate concepts, such as a ‘fishing diligence’. In most criminal cases the accused would, in the nature of things, not know what material in the hands of the Crown or their agencies would be helpful to his case or would undermine the Crown case. The Lord Justice General in McLeod had been wrong to describe procedure by commission and diligence as the procedure for securing disclosure; it was only one of several mechanisms. In cases such as the present the appropriate course was for the court to make, under section 6 of the Human Rights Act 1998, an order for disclosure on the Crown as a public authority. The court also had statutory powers (under the Criminal Procedure (Scotland) Act 1995) and powers at common law to enforce the Crown’s obligation, though the Crown had an obligation ex proprio motu to perform that duty.

 

[55]

The position adopted by Mr Shead was singular. As we have said, he asserted that petitions for recovery of documents were both inappropriate and unnecessary. He made passing reference to the Criminal Procedure (Scotland) Act 1995 and to the Human Rights Act 1998 but offered no explanation as to why the criteria under these Acts for making an order against the Lord Advocate were different from those under procedure by commission and diligence. He stated that the appellants required to ‘do nothing’, the obligation of disclosure being on the Crown. But, if an appellant (or an accused) seeks the aid of the court, in furtherance of an appeal (or in preparation for trial), to secure the performance by the Crown of a duty upon them, he must, in our view, not only properly identify that duty but lay a proper basis on which the court can in the particular circumstances enforce the performance of that duty.

[56]

In the present cases each of the appellants has been granted leave to appeal against conviction on specific grounds. It is not suggested that the granting of any general order by the court for recovery of documents or other material would assist in the presentation of these grounds; nor, subject possibly

to paragraph 68 infra, is it suggested that there are other arguable grounds on the basis of which, in the event of particular documents or classes of documents (or particular other materials or classes of material) being recovered, the court would now allow any of these appeals to be presented. Mr Shead’s proposition that the Crown have a duty to disclose what they have a duty to disclose is true but tautological and, for practical purposes, accordingly useless. The court could not conceivably grant diligence in terms of the calls in the specifications in McDonald’s and Dixon’s cases for

‘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 [sic] obligation under article 6(1) when read with section 57(2) of the Scotland Act 1998′.

Having regard to the consequences of non-compliance, the haver is entitled to be told with precision what documents or classes of document he or she is obliged to produce. These calls wholly fail to do so, giving no practical content to any order for recovery.

67]

In the course of Mr Shead’s argument, although submissions were made concerning a ‘fair trial’ and its alleged denial, no reference was made to the terms of any of the devolution minutes. Nor was any argument directly related to these terms. Indeed Mr Shead, relying upon his contention (unsound, in our view) that cause did not require to be shown, did not articulate any cause for receiving these minutes at this time. His contention came to be the tautological proposition earlier noticed, namely that the Crown had a duty to disclose what they had a duty to disclose. That cannot, properly, be described as an ‘issue’ at all. In deciding whether to exercise our discretion we take into account the relative lateness of the tendering of these minutes and the lack of real substance, in our view, of the arguments presented. And we are not persuaded that the circumstances justify a jurisdiction being invoked which might render competent an appeal to the Privy Council. Essentially the issue is a procedural one, namely, whether the court should exercise its power to make an order for recovery and, if so, on what terms. That is properly a matter for this court exclusively. In these circumstances the devolution minutes ought not to be received.

 

Going to the JCPC at the end of July

The appeal concerns the nature and scope of the Lord Advocate’s duty of disclosure

 

It is understood that the Lord Advocate accepts the existence of such a duty. Nevertheless she was unable to give an assurance to the High Court that she had complied with the duty in the cases before the High Court. Instead she submitted that she had no duty to “re-investigate” cases determined since the coming into force of the Scotland Act 1998. The first issue is whether that submission can be reconciled with the acceptance of the duty prescribed by Article 6(1).

 

The second issue is whether there is an obligation on the defence to seek to enforce compliance with the duty which rests on the Lord Advocate. The High Court held that where an appellant or an accused seeks the aid of the court in this context he must identify both the duty and lay a proper basis on which the court can enforce the performance of that duty. It is submitted that there is no duty on the defence but that, even if there were, the conditions laid down by the High Court are not compatible with the requirements of the Convention.

 

At present both the defence and the Court are unable to ascertain whether the duty of disclosure has been complied with in the absence of a proper and transparent system. In most cases an accused does not know, and has no means of knowing, what material in the hands of the Crown or under its control would tend either to exculpate him or undermine the case against him. The third issue is whether, as matters stand, it is compatible with the requirements of Article 6(1) for the Lord Advocate to be the sole judge of what material is disclosed.

 

Issues relating to disclosure were ventilated in the Nat Fraser appeal (heard at the end of last year).

 

NAT GORDON FRASER v HER MAJESTY’S ADVOCATE(6 May 2008)

L J-C

Ground of appeal 2 – non-disclosure

The obligation of disclosure

[187] The Crown accepts that it now has a general duty to disclose information that may undermine its case or assist the defence case (McLeod v HM Adv, supra). The process of disclosure has traditionally involved the inclusion of witnesses on the Crown list whose evidence may be favourable to the accused (McLeod v HM Adv, supra, at p 97).

[188] In Holland v HM Adv, in this court (2004 SCCR 452) and before the Judicial Committee (2005 SC (PC) 3), the Crown conceded that it had an obligation to notify the defence of a statement made on precognition by the witness Mrs Gilchrist, which had a bearing on the reliability of her dock identification (Holland v HM Adv,2004 SCCR 452, at para [37]; 2005 SC (PC) 3, at para [76]). In several appeals that we have heard since the Judicial Committee decided Holland v HM Adv (supra) and Sinclair v HM Adv (2005 SC (PC) 28), it has been suggested that in consequence of these decisions the Crown now has an all-embracing duty in every case to hand over every piece of information that it holds. That is emphatically not the case, in my opinion. The rights of the defence are to precognosce any witness on the Crown list or any other possibly relevant witness of whom they may become aware. The defence are not entitled to assume a passive role and look to the Crown to provide all of its information.

[189] The true principle, in my view, is that the Crown’s duty of disclosure does not extend to the provision of Crown precognitions to the defence (cf Sinclair v HM Adv, supra, Lord Hope of Craighead at para [28]; Lord Rodger of Earlsferry at para [49]; Downie v HM Adv, 1952 JC 37). A precognition cannot be equiparated with a witness statement. It reflects the evidence of the witness filtered through the mind of the precognoscer (Kerr v HM Adv, 1958 JC 14). In consequence, it cannot be put to a witness as a being a prior inconsistent statement (1995 Act, s 263(4); McSween v HM Adv, 2007 SCCR 320); it cannot qualify as hearsay evidence (ibid, s 262(1)(b)), and it cannot be adopted as a witness’s evidence (s 260). There is no general rule that the Crown is obliged at all times to provide information to the defence about the contents of its precognitions; but there may be circumstances in which the Crown becomes obliged to notify the defence of information that it has discovered on precognition. That was accepted by the Crown in Gair v HM Adv, 2006 SCCR 419), rightly in my view.

 

The test in an appeal based on non-disclosure

[190] For the purposes of this appeal I shall assume in the appellant’s favour that the Crown had a duty to disclose the information that came to light in PC Lynch’s Elgin precognition and that it did not discharge that duty merely by including him on the Crown list. I shall also assume in the appellant’s favour that if the information in that precognition had been disclosed to the defence, that in turn would have led to the precognoscing of WPC Clark on the question of the rings and to an analysis of the video such as was undertaken by Miss Woods and Dr Bowie.

[191] Counsel for the appellant at first submitted that an appeal based on non-disclosure should be decided on the test that was formulated in Holland v HM Adv (supra), namely whether it could not be said that the undisclosed evidence “might not possibly have affected the jury’s verdict” (ibid, Lord Rodger of Earlsferry at paras [82]-[83]). That raised the question whether in cases such as Holland and Sinclair, a conviction can be quashed on a different criterion from that established in Cameron v HM Adv (supra).

[192] The advocate depute indicated that the Crown hopes that the decisions of the Judicial Committee in Holland v HM Adv (supra) and Sinclair v HM Adv (supra) will be reconsidered on some opportune occasion. In essence, the Crown submits that the jurisdiction of the Judicial Committee to determine a devolution issue under article 6 is different from the jurisdiction of this court to determine whether there has been a miscarriage of justice under section 106 and that the correct interpretation of these respective jurisdictions was set out by Lord Justice General Hope in Montgomery v HM Adv (2000 SCCR 1044, at pp 1107F-1108A).

[193] Since there is no devolution issue in this appeal, I need not consider the points that the advocate depute raised about the test applied in appeals to the Privy Council. This appeal falls to be dealt with solely as an appeal under section 106 based on the contention that there has been a miscarriage of justice. If I am right, the test set by Lord Justice General Emslie in Cameron v HM Adv (supra), and followed in this court for over 20 years, applies to both grounds of appeal.

[194] We raised this point with counsel for the appellant during his reply to the advocate depute. He then said that he was content not to base his submissions on Holland v HM Adv (supra) or Sinclair v HM Adv (supra), and to confine them to section 106 and the case law on it. He also accepted the contention of the advocate depute that if the court were to hold that there had been non-disclosure, ground of appeal 2 fell to be treated as a new evidence appeal and in effect as a duplication of ground 1.

[195] In my view, that is correct. The appellant must establish that the Crown’s non-disclosure caused there to be a miscarriage of justice. To do that he must demonstrate the importance and significance of the undisclosed evidence to the crucial issues at the trial. At that stage the non-disclosure ground becomes a new evidence ground and falls to be decided on the general principles that I have outlined.

 

Did the failure to disclose cause a miscarriage of justice?

[196] On the assumption for the purposes of this discussion that there was a failure by the Crown to disclose the evidence now founded on by the appellant, I consider, for the reasons set out in my conclusions on ground of appeal 1, that the Crown’s failure to disclose that evidence did not result in a miscarriage of justice.

 

Gair v HM Adv (2006 SCCR 419)

[197] In the course of the discussion the question arose whether in Gair v HM Adv (supra) this court imported the test in Holland v HM Adv (supra) in appeals based on non-disclosure. That case related to new evidence, obtained under disclosure, in the form of police statements of, and personal information relating to, a prosecution witness. Like this case, it raised no devolution issue. The court observed that the “possibility that the jury might have reached a different verdict” if disclosure had been made, was real and certainly could not be excluded (Gair v HM Adv, supra, at para [39]). That echoed the words of Lord Rodger of Earlsferry in Holland v HM Adv (supra); but the court’s conclusion on the special facts of the case was that the undisclosed evidence would have tended to undermine the credibility and reliability of the relevant witness’s evidence and thereby cast reasonable doubt on the Crown case, and that in the circumstances the non-disclosure resulted in a miscarriage of justice (ibid, at para [40]). Although the court cited none of the authorities in its discussion and conclusions (at paras [32]-[40]), it seems to me that its overall conclusion was not inconsistent with the application of the test in Cameron (supra).

 

Lord OSBORNE

Thus, in my opinion, it is evident from this statutory structure that the Judicial Committee does not require to be concerned with the concept of a “miscarriage of justice” in determining devolution issue appeals under paragraph 13 of Schedule 6 of the 1998 Act. If, in such proceedings, it concludes that there has been a breach of Article 6(1) of the Convention by virtue of the conduct of the Lord Advocate, then, on the reasoning of Lord Hope of Craighead in Sinclair v H.M. Advocate, a conviction has been recorded in circumstances in which the prosecutor had no power to seek it. Such a conviction must surely be regarded simply as a nullity, as opposed to a miscarriage of justice, a concept which, it respectfully seems to me, implies a validly conducted prosecution, but one in which justice has not been done, in the particular circumstances of the case.

[219] In any event, in my opinion, the relationship between the concepts of a miscarriage of justice, recognised in section 106(3) of the 1995 Act and an unfair trial in terms of Article 6(1) of the Convention is not straightforward. Plainly they are not co-extensive. An unfair trial may not result in a miscarriage of justice. That would be so where, for example, that trial concluded with an acquittal, since the concept of miscarriage of justice comes into play only following a conviction on indictment, as provided in section 106(1) of the 1995 Act. Furthermore, a trial may be completely fair yet result in a conviction which must be regarded as a miscarriage of justice, as for example where the provisions of section 106(3)(a) operate.

[220] What importance, if any, it may be asked, attaches to these considerations in the present context. The answer, in my view, is that it is potentially confusing and therefore unhelpful, in criminal appeals under section 106(3)(a) of the 1995 Act to seek to rely on dicta pronounced in appeals under paragraph 13 of Schedule 6 to the 1998 Act, since the issues which this court must determine in the former type of appeal, which I have described in some detail, are inevitably quite different from those issues which the Judicial Committee require to determine in the latter. For all these reasons, I do not find anything said in Holland v H.M. Advocate in the Privy Council to be of any assistance in this case.

LORD JOHNSTON

[238] I may say in passing that I share your Lordship’s concerns about the cases of Holland and Sinclair and sincerely hope that these cases can be comprehensively reviewed in view of the fact they appear to have been seriously misinterpreted in the lower courts. For my part, I confirm that I do not consider that the Crown is ever under any obligation to disclose precognitions, although in certain circumstances information coming to the attention of the Crown obtained by way of precognition may be appropriately handed over to the defence informally as part of the general issue of fairness as between adversaries in our adversarial system. It would, however, in my opinion, be quite impossible for the Crown to operate in response to its public duties if it was always concerned that its precognitions as such would be made or would require to be made available to the defence. Witness statements may be in a separate category, especially if obtained in the course of a police enquiry and not by way of precognition once charges have been proffered.

 

Disclosure is likely to feature heavily in the appeal of Abdelbaset Ali Mohmed Al Megrahi. At a procedural hearing on 20.12.07 the Crown refused to hand over a document, seen by the Scottish Criminal Cases Review Commission, which was the basis for one of the grounds of referral by the Commission to the Appeal Court. The LG-G asked how a petition to obtain this document could be considered in the absence of a ground of appeal dealing with it. To which the answer from Maggie Scott was – how can I draft a ground of appeal relating to a document I have never seen?

The Court will have to consider issues relating to Public Interest Immunity and may have to improvise procedures, in the absence of any established method of dealing with such evidence in Scotland.

 

APPEALS under section 74 of the Criminal Procedure (Scotland) Act 1995 by PAUL DANIEL STEVENSON, SCOTT GEORGE RANKINE and WILLIAM DANIEL STEVENSON v HER MAJESTY’S ADVOCATE(19 February 2008)

 

Lord Nimmo-Smith

[3] Prior to the commencement of the trial it was discovered that certain labelled productions, namely a brick, a shovel, a brush and a broom (“the implements”) were missing. It appears that they had been destroyed approximately six months previously, having been mistaken for rubbish which was being cleared out from the police station where they had been stored. The Crown moved the court to desert the diet pro loco et tempore and to extend the time-bar. These motions were opposed by the appellants who argued that the case should be deserted simpliciter. On 16 October the Crown motion to desert the diet pro loco et tempore was granted and the motion to extend the time-bar was refused. On the same date an indictment was served on the appellants citing them to a trial diet on 15 November 2006, with a first diet on 31 October 2006. On 31 October the appellants tabled two preliminary pleas. Following a hearing on 6 and 8 November 2006 the sheriff repelled the first plea, repelled the second plea in hoc statu, and granted leave to appeal to the High Court of Justiciary. We heard the appeals in two stages.

The second plea: oppression
[18] This plea arises from the loss of the implements. The plea is to the effect that each of the appellants is severely prejudiced by the loss of these objects to such a degree that they cannot receive a fair trial, no direction by a sheriff can cure the deficiency in the evidence, and accordingly the actings of the Crown in re-indicting the appellants without including these objects as labelled productions are unfair and oppressive. As we have said, the sheriff repelled this plea in hoc statu.

19] It is convenient at this point to give a brief account, in chronological order, of the authorities to which reference was made before us. In Maciver v Mackenzie 1942 JC 51 Lord Justice General Normand, in a passage applied in Tudhope v Stewart 1986 JC 88, said at page 54 that the test of whether articles required to be produced was whether the real evidence was essential for proving the case against the accused, and not for the purpose of testing the credibility of the Crown witnesses.

[20] Maciver v Mackenzie was referred to in Anderson v Laverock 1976 SLT (Notes) 14. In that case a number of salmon were found in the accused’s car near the River Tweed during the close season. The fish were examined in the police station by police officers and by a water-bailiff, whose evidence was that the fish were marked with holes or tears of the type made by cleeks or gaffs. The accused did not have the opportunity of examining the fish or having them examined. The fish were not produced at the trial. The accused was convicted, but on appeal his conviction was quashed. In their opinion the court referred to “the canons of justice and fair play” and held that, since the accused had not been given the opportunity of examining the fish himself or having them examined, the conviction could not stand.

[21] Anderson v Laverock was of course decided before the incorporation of the European Convention on Human Rights into our domestic law in 1998, but it can be seen from the Commission decision in Jespers v Belgium (1981) 27 D.R. 61 that the application of Article 6 of the Convention leads to a similar result. At paragraphs 55 to 58 the Commission referred to the principle of “equality of arms”, expressing the view that the “facilities” referred to in Article 6, paragraph 3(b), which everyone charged with a criminal offence should enjoy, include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings. It was the right of the accused to have at his disposal, for the purposes of exonerating himself or of obtaining a reduction in his sentence, all relevant elements that had been or could be collected by the competent authorities.

[22] The leading Scottish case to which reference was made is McFadyen v Annan 1992 JC 53, in which a Full Bench held that, in cases of alleged oppression, the question for the court was whether there was such prejudice to the prospects of a fair trial that it would be oppressive to require the accused to face trial, the test of oppression being the same in such cases as in any other situation. In solemn proceedings, the court required to ask whether the risk of grave prejudice to the prospects of the accused receiving a fair trial was so grave that no direction by the trial judge to the jury could be expected to remove it.

[23] Reference was made to other cases in which objects had not been lodged as productions. In McKellar v Normand 1992 SCCR 393 the appellant was charged with the reset of a bed and a blanket, neither of which was produced at her trial. The court held that while it was good practice for items which were the subject of a charge of this kind to be produced if it was convenient to do so or, failing production, for labels relating to them to be produced in their place, the question was always whether, in the absence of the items or labels, injustice was likely to result to the accused, which was not the position in that case.

[24] In McQuade v Vannet 2000 SCCR 18 a tape recording taken from CCTV cameras which covered the locus had been deleted. The appellant took a plea in bar of trial on the ground that the destruction of the video record prevented a fair trial taking place. It was held that the sheriff correctly repelled the plea on the ground that any prejudice was possible rather than actual and could not be said to be grave until more was known about it. If, having heard the relevant evidence, the sheriff was persuaded at trial that the prejudice was so grave that he could not arrive at a fair verdict, he could desert the diet. In Rose v H.M. Advocate 2003 SCCR 569 a similar situation, involving the deletion of a tape recording, arose. The appellant lodged a devolution minute on the ground that the absence of the video tape created a material risk of his not receiving a fair trial, contrary to his entitlement under Article 6 of the Convention, since it deprived him of the opportunity to fortify the credibility and reliability of a witness who had seen the tape recording. It was held that the correct question at the pre-trial stage was not whether there was a material risk of the appellant not receiving a fair trial, but whether the circumstances were such that he could not receive a fair trial. Since there was no agreement as to what could be seen on the tape recording, and whether it would have supported the defence and undermined the evidence of the complainer, this was not a case in which it could be affirmed before the trial that for the proceedings to continue against the appellant would involve a breach of his right to a fair trial under Article 6.

[25] Finally, reference was made to Sinclair v H.M. Advocate 2005 SC (PC) 28, a case which related to the failure of the Crown to disclose police statements which could have been used to undermine the credibility and reliability of a Crown witness. At paragraph 33 Lord Hope of Craighead said:

“First, it is a fundamental aspect of the accused’s right to a fair trial that there should be an adversarial procedure in which there is equality of arms between the prosecution and the defence. The phrase ‘equality of arms’ brings to mind the rules of a medieval tournament – the idea that neither side may seek an unfair advantage by concealing weapons behind its back. But in this context the rules operate in one direction only. The prosecution has no Convention right which it can assert against the accused. Nor can it avoid the accused’s Convention right by insisting that the duty does not arise unless the accused invokes it first. Secondly, the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused. For this purpose any evidence which would tend to undermine the prosecution’s case or to assist the case for the defence is to be taken as material. …”.

[26] Before us, it was accepted by their counsel that the appellants had to satisfy us that they could not receive a fair trial in the absence of the implements as labelled productions. It was submitted that this was so, because the disappearance of the implements gave rise to a serious and incurable difficulty. It deprived each of the several appellants of the opportunity to prove unambiguously by scientific examination that traces of their DNA were absent from productions on which the Crown would have relied for conviction. Now the presiding sheriff could only direct the jury as to the possibility that, if the productions had been examined for DNA or made available to the defence, such evidence might have been forthcoming. This would altogether lack pungency as compared with what the defence might have been able to say had the Crown analysed the productions for DNA or disclosed to the defence that they were being offered the opportunity to have such an analysis carried out for the several appellants. The loss or destruction of these productions meant that the defence were permanently deprived of that opportunity, and thus the appellants could not be guaranteed a fair trial. It was also suggested that, had the implements been available for examination by a defence medical expert, an opinion could have been expressed as to whether they were respectively capable of causing the complainers’ injuries.

[27] The Advocate Depute pointed to the fact that the three complainers had been listed as Crown witnesses, and indicated that the Crown had not had tests carried out on the implements. This led counsel for the appellants to submit that the failure of the Crown to explore the possibility that the implements did not bear the DNA of all or any of the appellants, and thus to seek evidence which might have led to the exculpation of the appellants, constituted a breach of the appellants’ rights under Article 6 of the Convention.

[28] In our opinion the sheriff correctly decided to repel the plea in hoc statu. It seems to us to be quite impossible to affirm at this stage that the appellants cannot receive a fair trial. The appellants founded strongly on Anderson v Laverock, but in our opinion that case, which was an appeal after conviction, turned on evidence on which the Crown relied, following examination of the condition of the fish, as yielding an inference as to the manner in which the fish had been unlawfully taken out of season. The accused had been given no comparable opportunity. This was a clear example of a lack of equality of arms. In the present case, there is no suggestion that the Crown will seek to rely on evidence about the condition of the missing implements. Recognising this, the bold submission by counsel for the appellants was that it was the Crown’s duty to have the implements examined. This was advanced as a proposition of general application: it was submitted that it was the duty of the Crown, wherever articles were recovered in the course of a criminal investigation, regardless of the availability of, for example, compelling eye-witness evidence, to have the articles examined for evidence that might lead to the exculpation of the accused. The authorities referred to do not appear to us to yield such a proposition: the furthest they go is to establish that, if the Crown seek to rely on evidence yielded by an examination of articles recovered in the course of a criminal investigation, then the defence must in fairness have a similar opportunity for examination of the articles. In any event, we view with a degree of scepticism the argument that the loss of the implements has deprived the defence of the opportunity of having them independently examined. As has been seen in the summary of the procedure given at paragraph [2] above, many months elapsed without any attempt by the defence to have the implements examined while they were still available, and it was only once it had become known that they were lost that the appellants’ advisers first raised the question of forensic examination. In any event, it is not obvious at this stage that, without access to the implements, the defence will be unable to obtain a medical opinion as to the causation of the complainers’ injuries: such opinions are commonly expressed even when the weapons have not been recovered.

[29] The defence will have all the usual opportunities during the course of the trial to make submissions about and to exploit the loss of the implements. The significance of that loss will require to be assessed by the sheriff in the context in which it is raised, and appropriate decisions made then. We are not to be taken to be expressing any view about these issues in advance of the trial: it is sufficient that in our opinion it is impossible to say at this stage that the appellants cannot receive a fair trial or that the requirements of the law cannot otherwise be complied with. For these reasons the appeals on this ground also fail.

 

Result
[30] We shall accordingly refuse the appeals and remit to the sheriff to proceed as accords.

 

 

 

So here we are 9 years on. I would be interested if any of the delegates are able to suggest ways to demonstrate in criminal matters how we are in a different position substantially than we were before. It seems to me that the courts started slowly in embracing ECHR. However after a while they seem to have seen it as an opportunity to exert some greater influence over unsatisfactory aspects of the system, for example in relation to delays caused by under-resourcing of the Crown. And while those early decisions may have brought some improvements, our courts started to see that they had some unfortunate consequences too. As we already had measures in place pre-ECHR to avoid some aspects of unfairness it might be thought that we were starting to impose too unrealistically high a standard on our prosecuting authorities and on the courts themselves. And so after a period of some experimentation and innovation we seem to have decided that things here weren’t so bad after all.

A sad consequence is that in our courts the arguments most likely to succeed are those which avoid any reference to ECHR. In one case Gordon Jackson mentioned ECHR but only to say that he was sure the Scottish common law allowed for any remedy which was considered necessary. And with a smile from the judges he was able to continue to a successful conclusion.

Art. 06 Right to a Fair Trial, Criminal Law and Criminal Procedure