APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Nimmo Smith Lord Philip	[2007] HCJAC 75 Appeal No: XC732/05, XC213/05 and XC406/05 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEALS by (1) JOHN McDONALD Appellant; against HER MAJESTY'S ADVOCATE Respondent: (2) BRENDAN CHRISTOPHER DIXON Appellant; against HER MAJESTY'S ADVOCATE Respondent: and (3) RICHARD BLAIR Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Shead, Mitchell; Capital Defence, Edinburgh (McDonald): Shead, McKenzie; Capital Defence, Edinburgh (Dixon): Shead, Mitchell; Ian McGarry, Glasgow (Blair)

Alt: Lord Advocate, Wolffe, Q.C., A.D.; Crown Agent

Alt: Advocate General, Howlin; Office of the Advocate General

21 December 2007

Introduction

[1] The appellant McDonald was on 1 September 2005 convicted after trial of murder and of various firearms offences. He has appealed against that conviction on a single ground: that no reasonable jury could, having regard in particular to the nature and quality of the evidence relied upon by the Crown as corroboration for the identification of the appellant as the perpetrator, have convicted him. Leave to appeal on that ground was granted on 28 March 2006.

[2] The appellant Dixon was on 1 March 2005 convicted after trial of murder and of attempting to defeat the ends of justice. He has appealed against conviction and sentence. His grounds of appeal against conviction are, in summary, (1) that the trial judge wrongly refused a submission that there was no case for him to answer, (2) that the directions given by the trial judge in relation to corroboration were misconceived, (3) that the trial judge failed to direct the jury in relation to certain forensic evidence said to raise a reasonable doubt about the appellant's guilt, (4) that the trial judge displayed apparent bias in his treatment of certain witnesses led in support of the appellant's special defence of alibi and (5) that the trial judge failed to direct the jury that, if the evidence led in relation to the appellant's alibi raised with them a reasonable doubt, they were bound to acquit. Leave to appeal on those grounds was granted on 14 February 2006.

[3] The appellant Blair was on 29 April 2005 convicted after trial of murder. He has appealed against conviction on grounds which may be summarised as follows: (1) that the trial judge erred in law in failing to allow a photograph and an associated list of additional witnesses for the defence to be lodged late (these bearing upon the identification of the appellant as the perpetrator), (2) that the trial judge erred in refusing to sustain a submission that the appellant had no case to answer and (3) that the trial judge had wrongly, in assessing the sufficiency of the evidence against the appellant, taken into account a statement admitted in evidence under section 259 of the Criminal Procedure (Scotland) Act 1995. Leave to appeal on those grounds was granted on 22 November 2005.

[4] In each of these appeals the appellant has lodged a petition for recovery of documents. In the cases of McDonald and Dixon the calls in the specification are identical. They are in the following terms:

"1. All material in the possession of 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.

2. Failing principals, drafts, copies or duplicates of the above whether in paper or in digital form."

In the cases of Blair the calls are for documents related, broadly, to the mental health of the witness whose statement was admitted under section 259. (Counsel for another appellant (Grant) was allowed in the course of the hearing to withdraw a petition for recovery lodged on behalf of his client.) Associated with the petitions for recovery of documents in the cases of each of McDonald and Dixon is a devolution minute lodged in June 2007. In the case of Blair a devolution minute was tendered on the last day of the hearing of these appeals.

Submissions for the appellants

[5] 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 itself and the police or other agencies. But that division could not survive the decisions of the Privy Council in Sinclair v HM Advocate 2005 SC (PC) 28 and Holland v HM Advocate 2005 SC (PC) 3. 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 (No. 2) 1998 JC 67 the Crown had accepted before the court that it had a duty of disclosure. But in practice it 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 its 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.

[7] Difficulty was caused because the Crown did not have in place any duly recorded practice as to how the obligation of disclosure had, in any particular case, been addressed and complied with. In Sinclair the Crown had said that it had issued a Practice Statement on Disclosure but made it clear that this was only to comply with the procedural requirements following the "Bonomy Reforms" and not because it was implementing the performance of its duty of disclosure. Any such Practice Statement was entirely defective as the Crown did not have a proper understanding of what it was obliged to disclose and an accused/appellant could not scrutinise the performance of the obligation of disclosure. Until at least the decision in Sinclair it had not been the practice of the Crown to disclose prior written statements of witnesses. There had been no discussion before the Privy Council in Sinclair or Holland about the appropriateness of commission and diligence procedure; but the way that procedure operated in practice tended to undermine, rather than to secure discharge of, the obligation of disclosure.

[8] In the present case there was no suggestion that material was being withheld on the basis of public interest immunity. The process of due disclosure must take place at the trial stage, which admittedly had in these cases not been done. At the appeal stage the defect was irremediable. Article 6.3 was concerned with preparation in advance of trial. Article 6.1 was breached when material evidence was not disclosed. In some cases disclosure at the appeal stage of previously undisclosed material evidence might be too late; on any view, failure to disclose such material at the appeal stage was an obvious breach giving rise to an unfair trial. An unfair trial automatically gave rise to a miscarriage of justice. The convictions could not stand.

[9] There was an obligation on the Crown to organise its arrangements so as to comply with disclosure requirements under Article 6 (Warnes v HM Advocate 2000 SCCR 1127 at para. [10]). In England and Wales there was a system, which included appointment of a "disclosure officer", to supervise compliance with disclosure obligations. There was a system of lists and schedules. There was also a Disclosure Manual prepared by the Crown Prosecution Service. After Holland and Sinclair a request had been made of the Crown by the Chairman of the Faculty of Advocates Criminal Bar Association for disclosure of its operative rules; but no substantive reply had been received. The requirement of disclosure was not restricted to particular classes of material such as witness statements, previous convictions and "unused" forensic materials. It was the content of documents and other materials which was significant. In some cases information contained on HOLMES (Home Office Large and Major Enquiries System) would fall to be disclosed.

[10] The Crown, after McLeod and prior to Holland, had adopted in relation to previous convictions the procedure described in Holland at para. [67]. A major flaw in that was that it was invidious to leave to prosecutors the task of what previous convictions were relevant and what were not. Any reasonably competent counsel for the defence would wish to have access to all previous convictions of Crown witnesses. The test adopted by the Crown had been emphatically and robustly demolished by Lord Rodger of Earlsferry in Holland (para. [75]). If disclosed previous convictions were not relevant, they simply could not be deployed by the defence. Holland had illustrated that material information might be unearthed at the stage of Crown precognition - information which did not readily fall into any category. Moreover, there was no way in which the defence could check as to what had (or had not) been supplied by the police to the prosecutors. Reference was made to Gair v HM Advocate 2006 SCCR 419. The Crown appeared there, as here, to have sought to distinguish between the duty of disclosure at the trial stage and at the appeal stage. In Gair the disclosure of prior statements may have been made not by the Crown but in the course of the Commission's enquiries. But the duty (including that of disclosing all prior statements of all Crown witnesses - Holland) applied equally to the appeal stage as to the trial stage. Reference was made to Johnston v HM Advocate 2006 SCCR 236 (where the failures of disclosure had been on the part of the police); there was under present arrangements a potential for such failure to occur on a daily basis.

[11] If the Crown persisted in its apparent contention that it had no obligation to disclose at the appeal stage material which it had had an obligation to disclose (but had failed to disclose) at the trial stage, the appellants' contentions were that they had been denied a fair hearing. The court could either simply quash their convictions or compel the Crown to comply with what was a continuing and undischarged obligation. The historical development of disclosure arrangements in England and Wales had been described by Lord Bingham of Cornhill in R v H and C [2004] 2 AC 134. There were grounds for optimism that arrangements along the English lines would comply with the requirements for a fair trial. The types of material, disclosure of which would be important, were illustrated by R v Adams [2007] EWCA Crim. 1. These included material held under the HOLMES system; it could reasonably be assumed that such material would be significant for the appeals of the present appellants. The European authorities clearly regarded disclosure at the stage of appeal as potentially significant (Dowsett v United Kingdom, 24 June 2003, Application No. 39482/98). In McClymont v HM Advocate [2006] HCJAC 47 the Crown had (rightly) recognised that its failure to disclose a prior statement at the appropriate stage had resulted in a miscarriage of justice. The Crown's position, as disclosed in its Outline Submission, was clearly unsound.

[12] As regards the contentions there advanced, the appellants, in the light of Holland, did not require a specification of documents, the obligation to disclose them being on the Crown; it was unnecessary that a ground of appeal be advanced in relation to disclosure; the Crown apparently conceded that relative statements had not been disclosed at the trial stage; the Crown had misunderstood its obligations set out in McLeod; the true issues at the trial could have been discovered had due disclosure been made; McLeod had been overtaken by Holland and Sinclair; the appeal process was not compliant with Article 6 when due disclosure, not earlier made, was not made at the appeal stage; the petitions were not "fishing", it being clear that what was being sought was performance of the duty under Article 6; finality was not an issue here, the true issue being whether the Crown was in continuing breach of its duty of disclosure; there were materials which remained obviously disclosable, such as that on the HOLMES system; the purpose of the disposal sought was to secure that the trial (including the appellate proceedings) was fair. It was unnecessary to enter into any specifics at this time, including any of the specific calls made in any of the petitions. The appellants' position remained that the petitions were unnecessary.

Submissions by the Advocate General

[13] The Advocate General addressed us under five chapters. First, as regards the obligation of disclosure incumbent upon the Crown, reference was made to the test in McLeod, and in particular to the observations of the Lord Justice General at page 79. For the purposes of his submissions, the Advocate General took the obligation to relate to evidence which was within the control of the Crown. In McLeod it was suggested that the obligation concerned "all material evidence". The case of Sinclair appeared to define all police statements as material per se (especially per Lord Rodger at para. [49]), suggesting there is a duty on the Crown to disclose any such statements in order to meet its obligations in terms of Article 6. The Advocate General did not suggest that McLeod had been overruled by Sinclair, or that there was anything substantially different in the principle put forward in the latter case. While McLeod had not been wrongly decided, the decision now required to be viewed through the prism of Article 6 - see Lord Hope at para. [29]. The Advocate General cited Edwards v United Kingdom (1992) 15 EHRR 417 (para 36), Edwards and Lewis v United Kingdom 2003 BHRC 189 (para 52) and Rowe and Davis v United Kingdom (2000) 30 EHRR 1 (para 60), in which the obligation of disclosure is described as applying to evidence "for or against the accused". Jasper v United Kingdom (2000) 30 EHRR 441, para 51) also outlined the approach which should be adopted. While that case contained detailed discussion of the English approach to disclosure, it was helpful for the purposes of the present debate. In this regard, the House of Lords in R v H and C (para 14) had suggested that the "golden rule" was that any material which weakens the defence case or strengthens that of an accused should be disclosed. This appeared, on the authorities, to be a principle of general application, which could be carried forward to Scots law.

[14] Secondly, the Advocate General submitted that there were three possible situations in which the principles of disclosure outlined in these cases might arise: the first was where all relevant material was disclosed, in which case there was no incompatibility with Article 6; the second was where there was material information known to the prosecutor which had not been disclosed, in which case, disregarding any question of public interest immunity, it could be argued that there had not been a fair trial; the third was where the Crown could not say whether all material information had been disclosed, in which case all that could be said was that there may not have been a fair trial. It was only with reference to the third situation that Mr. Shead could advance his arguments for the appellants. It could not positively be stated that there had not been a fair trial, as it was not yet known whether material information had not been disclosed. The Advocate General submitted that there was a subtle difference between disclosing that certain evidence was in the possession of the Crown (for example, by providing schedules of material held) and the subsequent production of that material. Many of the authorities appeared to conflate these issues. It was not simply a question of the Crown handing over all material which it held to the defence; that could lead to the extensive delays seen in the criminal justice system in England and Wales in the early 1990s. Nor was it a question of providing an analysis of all the information held. Rather, the Crown should provide a list, under various heads, of material in its possession. In an adversarial process the defence had to be given an opportunity to comment.

[15] Thirdly, it was submitted that the guarantee of a fair trial was absolute at all stages of a criminal case, including appellate proceedings. Edwards (paras 34 to 37) stressed that non-disclosure could be remedied at a later stage, and that this opportunity ought to be taken, if afforded. Disclosure at the appeal stage might therefore rectify non-disclosure at trial. However, the question remained as to the appropriate mechanism for ensuring that the obligation of disclosure was discharged. In Rowe and Davis (paras 63 and 64), the European Court of Human Rights indicated that the decision on whether certain information should be disclosed at first instance could not rest solely with the Crown. While that case concerned public interest immunity, the principle could be extended to the circumstances of the present case. A process of "iteration" might be appropriate.

[16] Fourthly, the Advocate General addressed the circumstances of the present appeals. The immediate issue was whether there should be an order for the recovery of documents. The argument against such an order was that there had been inadequate specification of the information requested, and that the request was not linked to any specific ground of appeal. On the other hand, as matters stood, the Crown monopolised the decision on what was material for the purposes of disclosure. Rowe and Davis suggests that this should not be the case. If that was correct, the supervision of the court by an appropriate mechanism was required. In England, a disclosure list containing details of the information held by the Crown was sent to the defence. The provision of such a list should be the minimum requirement in Scotland of the Crown's duty of disclosure. Lord Coulsfield's report provided some assistance on the categories of evidence which might be involved in such a list. While ECHR jurisprudence did not suggest that there was a right to obtain all the evidence involved in a criminal investigation, it did suggest that all material information should be disclosed. It was conceded that the court may not wish to provide guidance of general application in these appeals, given the present state of flux in this important area of law. It was suggested that an appropriate order might be that the Crown indicate what information it had in its control, and what, if any, of that it regarded as non-disclosable. This would provide a basis for further progress in the present appeals.

[17] Finally, the Advocate General made brief submissions in relation to section 57(2) of the Scotland Act 1998. It was submitted that Mr. Shead had a difficulty in insisting that matters should be brought to an end forthwith. The act of the Lord Advocate identified was seeking a conviction at first instance or supporting the conviction at appeal. However, it could not yet be said that there had in fact been non-disclosure of material evidence. Edwards suggested that any incompatibility with Convention rights could be remedied at the appellate stage. Therefore, at most, all that could be sought at this stage was disclosure.

Submissions for the Crown

[18] With reference to the submissions advanced by the Advocate General with regard to Rowe and Davis, the Lord Advocate submitted that the issues of public interest immunity involved a different test, which was not engaged for the purposes of the present appeals.

[19] Since the decisions in Holland and Sinclair in May 2005 it had been clear to all practitioners that a different practice from that promulgated in the case of McLeod had been adopted; in addition to the principles established in the latter case, previous convictions and witness statements were now made available routinely to the defence. As this change in practice had been patent to all criminal practitioners, any identified breach, or potential breach, of an accused's Article 6 rights ought to have been raised at that time, or as soon as practicable thereafter. The appellants were barred by acquiescence from now pursuing any devolution issue. If the defence wished to raise a devolution minute, rule 40.2 of the 1996 Act of Adjournal made clear the time-limits within which this had to be done. That could only be departed from on "cause shown". If the Crown had failed to hand over documents from the outset, the appropriate remedy ought to have been sought at that stage. No cause had been shown. The "grounds" in the devolution minutes were heavily formulaic.

[20] This was not a technical objection; rather it was part of the Crown's overall reliance on the important principle of finality in criminal proceedings. Moreover, this approach was consistent with the protection of an accused's Convention rights; it was in an accused's interests that such matters be raised as soon as possible. The interests of victims and of witnesses in the finality of proceedings would also be undermined if incremental grounds of appeal were permitted outwith the parameters of statute and without cause shown. Again, this was supported by ECHR jurisprudence (Doorson v The Netherlands (1996) 22 EHRR 330). Thus the court ought to take into account, for example, the Article 8 rights of witnesses, as well as the public interest, in deciding whether matters should be considered at the appellate stage which might properly to have been considered at trial. The principle of finality had also been referred to in Robertson v Frame 2006 SCCR 151, where it was suggested that the fact that an appeal had been taken on a different point could be one aspect of the wider picture in determining whether there had been acquiescence (para [38]).

[21] None of the grounds of appeal in the present cases related directly to a failure to disclose in terms of Article 6. The Lord Advocate accepted that the duty of disclosure continued at any appeal proceedings, and that the obligations outlined in McLeod persisted at that stage (Hoekstra v HM Advocate (No. 5) 2001 SCCR 121). However, that did not involve an obligation on the Crown to reinvestigate cases decided since May 1999 in which statements may not have been disclosed. There were over a million cases (solemn and summary) which had been decided since then at first instance; there were 600 live appeals. An obligation in those terms would undermine the principle of finality and certainty. Nevertheless, the duty to disclose material information which might come to Crown's attention in such cases was clear and would be complied with.

[22] In McLeod, Lord Justice General Rodger had made it clear that, when requesting the recovery of documents, the petitioner must specify the basis upon which the haver was to produce them (page 80D-E). The court would not grant such orders unless it was satisfied that they would serve a proper purpose and that it was in the interests of justice to do so. The Privy Council in Sinclair had considered the case of McLeod, which continued to provide assistance where disclosure was sought. This approach was also supported by Bendenoun v France (1994) 18 EHRR 54, where it was held that specific reasons might be required for the production of documents. Any order made required to serve a purpose in the present appeal proceedings. That had not been demonstrated.

[23] At the appellate stage the defence were in a different position from their position at trial, given that evidence had been concluded. The impact of any non-disclosure must depend on the facts and circumstances of each trial and, in particular, the outcome of that trial. Reference was made to Kelly v HM Advocate 2006 SCCR 9.

[24] The changes in practice engendered by Holland and Sinclair also required a change in culture from the defence. The information it held should be made known to the Crown, to allow the latter's obligations to be met. This could be in the form of a letter at precognition stage. If the matter were only to arise at the trial stage, the Crown could seek an adjournment. The right of the defence to precognosce witnesses in Scotland was relevant here. It went far beyond what is permitted in many other jurisdictions. The Crown could not be expected to pass on information at the appeal stage which the defence already had at first instance. While it might be that, in the absence of legislation, the court could not require the defence to put forward its line of defence, a failure to indicate that line could have a bearing on the court's decision as to whether there had been sufficient disclosure. Caution should be applied before reliance was placed on ECHR jurisprudence relating to other jurisdictions. For example, in England even the legal understanding of what constituted "a police statement" differed from that in Scotland.

[25] Far from being defensive, the Crown embraced the principle of disclosure. In addition to the report which had been commissioned from Lord Coulsfield, and the practice statements which had been issued, there were also internal instructions to procurators fiscal regarding their duties of disclosure. A disclosure manual would shortly be made available to procurators fiscal and published. While precognitions (as documents) remained confidential, it was clear under the Book of Regulations that there was a duty on procurators fiscal to alert the defence to any material information discovered as a result of that process. Supervisory procedures were in place to ensure that this took place, with precognition officers being directed by legal managers. In more serious cases, Crown Counsel themselves would take a pro-active role in ensuring that the duties of disclosure were complied with. In addition a recent protocol agreed with the police would reduce the possibility of information being missed, as all relevant information was now forwarded to the Crown. The Crown was moving towards the schedule-based form of disclosure referred to by the Advocate General and was enthusiastic about such a scheme. However, realistically such a process would take time to implement.

[26] The checks and balances in the Scottish system included the procedural aspects of the criminal justice system, such as preliminary hearings and intermediate diets, and the process of defence precognition previously referred to. Further, the Scottish Criminal Cases Review Commission provided an additional layer of protection, where an accused believed that Crown had failed to obtemper its duty of disclosure.

[27] There was no conceivable system which could completely exclude the possibility of criminality or negligence in the suppression of evidence. In England and Wales there remained some cases where problems arose. Moreover, it was not the case that all material was simply handed over to the defence in that jurisdiction. The key decision on what was material was still made by the police and prosecution service. Only relevant information was disclosed. The intention of the Crown in Scotland was to work towards a list of relevant information held. The duty to disclose applied to information of which the Crown had knowledge, but it was accepted that a miscarriage of justice could still result if there was a failure to disclose information in the control of the Crown, but about which it did not have knowledge.

[28] The Lord Advocate also provided information as to the disclosure in fact made before, during and after the trials of the present appellants.

Response for the appellants

[29] In response, Mr. Shead submitted that there was no question of acquiescence on behalf of the appellants. In most of the recent miscarriages of justice involving non-disclosure, the failure to disclose was only discovered after the accused had been convicted. Indeed, it was not until all relevant information had been disclosed that the relevant grounds of appeal could be formulated. The example of Holland was cited, where the information contained in an observation made at precognition by a witness had not been disclosed until the eve of the appeal hearing. In the present cases the information was required precisely to determine whether there had been a fair trial. The Crown's submission that the nature of the duty might change at the appeal stage was not accepted. That was to ignore the fact that the first line of defence at trial was often to attack the Crown case. That certain action was not taken at the trial stage might be a direct result of the fact that evidence had not been disclosed at that time.

[30] The test of demonstrating "cause shown" was not particularly high and, if necessary, was met in this case. There had been no difficulty in previous appeals in such minutes being received. A constitutional right should not be denied on a legal technicality. Reference was made to Dickson v HM Advocate 2006 SCCR 637, which highlighted that the starting point for any plea in acquiescence was the point at which the appellants had the requisite knowledge to raise the legal issue in question. Disclosure had been recognised by the Lord Advocate as a "dynamic issue". It was only once the present appeals had been decided that the accused would know the legal position regarding disclosure as it applied to their cases.

[31] In any event, it was not clear that rule 40.2 of the Act of Adjournal was the appropriate mechanism for lodging a devolution minute in the present appeals; that referred to a time limit of seven days following service of the indictment, which was not readily applicable to appellate proceedings. Mr. Shead submitted that rule 40.4, which relates to "other criminal proceedings", was more appropriate. Reference was made to the decision of this court in HM Advocate v Montgomery and Coulter 1999 SCCR 959 (pages 968-9), where the court's discretion in receiving devolution minutes was discussed.

[32] Mr. Shead did not contend that a failure to disclose any statement meant that there was a miscarriage of justice per se, and rejected that interpretation of Holland and Sinclair. The approach to be taken involved two stages, the first being whether there has been a failure in terms of article 6(3) to disclose information and the second being whether, in the final analysis, that failure resulted in an unfair trial in terms of Article 6 overall. That had been the approach previously adopted by this court in Nulty v HM Advocate 2003 SCCR 378 in relation to hearsay evidence. Moreover, a different result would not depend on whether the matter of a fair trial was considered under the common law or under Article 6; there might, however, be a difference of emphasis in applying the test, such as the need to identify an act in terms of section 57(2) of the Scotland Act 1998. In the present case, the act of seeking a conviction, or subsequently supporting it, was an incompetent act in terms of that section, if there had not been a fair trial.

[33] Despite the measures referred to by the Crown, there was no system of disclosure presently in place which was compatible with the appellants' Article 6 rights. Practice statements did not have the force of law. The protocol between the Crown Office and the police, and internal instructions to procurators fiscal, referred to by the Lord Advocate, primarily concerned statements and previous convictions. The changes which had been introduced did not address all of the concerns which had been raised by the appellants. Johnston v HM Advocate 2006 SCCR 236 provided an example of the inadequacies of the present system for monitoring the information ingathered by the police. While it was true to say that no system could be foolproof, the simple lessons of that case did not appear to have been learned. The Lord Advocate was still not in a position positively to confirm that the obligation of disclosure had actually been complied with in the present cases, only that it could be presumed to have been.

[34] Reference was made to paras. 10.24 and 10.25 of Lord Coulsfield's report (pages 44 ff) where forensic material and the police HOLMES 2 system were discussed. That system already had the capacity to record sensitive and non-sensitive information gathered during the course of a case. Importantly, however, this facility was only available in England and Wales. It had been designed specifically to ensure that relevant information was not being missed. It was submitted that such a facility would be an invaluable tool to the police, the Crown and ultimately the defence in Scotland in serious cases. The present system was not sufficient to meet the Article 6 obligations of the Crown, and such a facility would represent a good starting point for a system of disclosure. It was not enough to say that statements and previous convictions were routinely made available to the defence, as other categories of information could also be of importance; it was the substance rather than the form of the evidence which was important.

[35] In the present cases, it was submitted, the Crown required to check what had taken place in terms of disclosure at the trial stage, and thereafter reconsider whether that had been sufficient. It was accepted that there might be some difficulty in determining whether there had been a breach of an order to disclose all relevant material; if the court had concerns in that regard, it might consider an order inviting such disclosure to be made. If this invitation were to be declined, then there would need to be further submissions regarding the consequences of that refusal.

[36] While the issues involved in the present appeal might apply to a large number of cases, most of these were at summary level. It was in cases which involved large volumes of paperwork that difficulties were likely to arise, and most of these would be solemn cases. Matters therefore required to be kept in perspective.

[37] It was not accepted that the process of precognition by the defence provided an acceptable form of disclosure. In the case of Sinclair that argument was put forward. The fact that it was not addressed in the decision of the Judicial Committee suggested that it was, however, rejected. Moreover the Scottish Legal Aid board and the Scottish Executive had reduced funding in this area, on the basis that precognition was becoming less necessary as statements were made available. Many defence practitioners found precognitions of limited assistance, given that police statements ultimately formed the basis of the Crown case.

[38] Similarly, it was not accepted that there was any duty incumbent on the defence to disclose any details of its case, or that the obligation on the Crown might dissipate in the face of such a lack of disclosure. This had been made clear in the cases of Holland and Sinclair. There was no onus at all on the defence. The Lord Advocate had implicitly accepted that point in indicating that there was a duty on the Crown to disclose any material information which came to their attention, even where it related to historical cases which had resulted in a conviction. Indeed, this was one of the reasons why it could not be argued that the defence had acquiesced in relation to this matter.

[39] Mr. Shead indicated that it was important to recognise what the real position in England and Wales was. Reference had been made by the Lord Advocate to a statutory duty upon the defence in England and Wales to disclose details of their case. That duty, introduced in 1996, had not proved very effective in practice. The approach was considered by Lord Coulsfield in his report, but he had not recommended its introduction in Scotland. Those consulted in that report seemed to accept that the present system, whereby notice is given of any special defence, would suffice. Moreover, in England the disclosure process involves a distinction between "used" and "unused" evidence. It was only once primary disclosure had been made by the Crown that any statement was required from the defence to justify additional disclosure. While it was rare for the courts to become involved in this matter, the mechanisms involved allowed for such a review to take place. In Scotland, the main decision was still taken by the Crown, and this was not satisfactory; it would always be difficult even for the most experienced prosecutor to see things from the defence perspective. The minimum that was required of any form of disclosure in a criminal justice system was that there existed a means of cross-checking the decision taken by the prosecution in relation to what was regarded as being material.

Discussion - the test for disclosure

[40] In McLeod a bench of five judges of the High Court of Justiciary addressed the nature of the Crown's duty of disclosure against a contention that, as a matter of principle,

"All statements and similar material generated in the course of the investigation which led up to the charges against an accused person should be made available to the accused, unless there were special reasons why any particular documents should not be handed over" (Lord Justice General Rodger at pages 62-3).

The court firmly rejected that contention. It did so prior to the incorporation into domestic law of the European Convention but with clear reference to and reliance upon its provisions (and in particular Article 6) and to cases, including Edwards v United Kingdom, decided by the European Court with reference to it. Discussing that case the Lord Justice General stated (at page 75E-F):

"What the court regarded as a requirement of fairness was that the prosecution authorities should disclose to the defence 'all material evidence for or against the accused' (emphasis added)."

He made it clear that the obligation of the Crown prior to and in the course of the proceedings was to disclose what was in fact material, not all possibly material evidence. At page 79F-G he said:

"Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused."

Later, having at page 80C-D observed:

"Like others in the past I am conscious of the difficulty of formulating the test which the court should apply when asked for the production of documents in a criminal case ... ",

he added that the circumstances in which the court would make an order for recovery were where it was satisfied

"that an order for the production of the particular documents would be likely to be of material assistance to the proper preparation or presentation of the accused's defence."

Lord Justice Clerk Cullen emphasised that the requirement derived from the Convention "relates not to all evidence but to 'all material evidence' for or against the accused." (page 81H).

Lord Hamilton described the "responsibility to inform" as arising

"where the Crown has in its possession and knowledge material which is likely to be of real importance to any undermining of the Crown case or to any casting of reasonable doubt on it."

Lady Cosgrove and Lord Nimmo Smith agreed with the Lord Justice General.

[41] The formulations quoted are not identical but are nonetheless not at variance as a matter of substance. Both the Lord Justice General and the Lord Justice Clerk emphasised that the evidence to be disclosed must be "material", an expression derived from Edwards. If one were to ask "Material for what?", we doubt whether the Lord Justice General and the Lord Justice Clerk would have demurred to that being such as

"is likely to be of real importance to any undermining of the Crown case or to any casting of reasonable doubt on it".

They might have added the corollary that the material in question included any which was of positive assistance to the accused. The only possible difference is that Lord Hamilton described the Crown's responsibility to inform as being limited to what was within the knowledge of the Crown. We shall return to any difference in that expression later.

[42] In Sinclair Lord Hope (at para [16]) observed under reference to McLeod:

"It had been acknowledged for a long time in the Book of Regulations for the Procurator Fiscal Service that the Crown had an obligation to disclose any information which supported the defence case and that this duty extended to information which supported any known or statable defence or which undermined the Crown case."

Lord Hope did not there suggest that the obligation to disclose as long formulated in the Book of Regulations was erroneous. Rather, having commented on the change of policy by the Crown in relation to previously claimed confidentiality in respect of police statements, he observed at para. [21]:

"The events of this case [Sinclair] call into question the manner the Crown has been performing its admitted duty to disclose any information which supports the defence case or undermines the case for the Crown in a way that the issue which was before the court in McLeod did not do."

His Lordship did not suggest that the "admitted duty" was different from the actual duty. The "subsisting duty" was reiterated at paragraph [24]. At paragraph [27] Lord Hope referred, without adverse comment, to the formulations of the duty advanced by Lord Justice General Rodger and by Lord Hamilton but added:

"But, as the court could do no more than give general guidance on this issue, the precise limits of this duty remained unclear. It was left to the decisions of individuals on a case-by-case basis as to whether the content of a statement by a Crown witness fell within this broadly defined category."

The concern accordingly was not about the nature and scope of the obligation but that its "precise limits ... remained unclear". What was identified in Sinclair was that the approach of leaving to individuals decisions as to the disclosure of police statements whose significance might not be appreciated at the relevant stage ran the risk of there being withheld statements which could in preparation for or at the trial have been of material assistance to the accused.

[43] Lord Hope then referred to the change of practice brought about by the reforms proposed by Lord Bonomy, observing:

"The change in practice recognises that the primary rule is that all witness statements, other than precognitions, in the possession of the Crown must be disclosed." (para [28]).

In the following paragraph he stated that in the event of a commission and diligence being required:

"McLeod will continue to provide the guidance that is needed as to the approach that should be adopted ... ".

His Lordship then went on to consider the Convention right under Article 6 and its application in the circumstances of that case. Nowhere in that section did he suggest that, against the incorporation of the Convention, McLeod was no longer relevant to the issue of the nature and extent of the duty of disclosure. Rather, in our view, he endorsed the formulations there advanced as accurately reflecting it. The "primary rule", in relation to statements, expressed by Lord Hope, that "all witness statements, other than precognitions, in the possession of the Crown must be disclosed" does no more than refine at the edges the scope of the duty to disclose. Arguably, it might be thought, it goes too far since at least some witness statements may not contain anything that is "material" in the relevant sense. But in the interests of ensuring that nothing of that category of evidence is inadvertently overlooked, it is understandable that the duty has in that respect been formulated in the way it has.

[44] Lord Rodger, agreeing with Lord Hope on the general issues, made certain observations on the particular circumstances of the case, concluding that, when the witness Ms Ritchie gave in evidence a different account from that which had been given in her initial statement to the police, from that moment onwards that statement constituted "material evidence for ... the accused" and that its non-disclosure gave rise to a breach of Article 6 (para. [44]). At paragraph (48) he said:

"More generally, the statements of all the witnesses in the list attached to an indictment or in any supplementary notice served under section 67 of the Criminal Procedure (Scotland) Act 1995 must contain material evidence against or, in some cases, in favour of the accused. Similarly, if the defence give notice that they intend to lead a witness and the Crown have a statement from him, then that statement is likely to contain material evidence for the accused."

These general statements appear to proceed on the basis, which is at least prima facie warranted, that persons do not appear as witnesses in such lists unless they are thought to have something of importance to say at the trial of the accused. At paragraph [49] Lord Rodger continued:

"It follows that the police statements of all the witnesses who are to be called at the trial are to be regarded as containing material evidence either for or against the accused. The Crown are, accordingly, under an obligation, in terms of Article 6(1), to disclose their statements to the defence ... For the avoidance of doubt, the Crown's obligation of disclosure as described in McLeod v HM Advocate (No. 2) should be understood as requiring the disclosure of these statements. It follows that, in so far as the Crown Practice Statement on Disclosure (November 2004) requires the Crown to provide the statements of these potential witnesses, it can properly be regarded as fulfilling this aspect of their obligation of disclosure under Article 6(1)."

Again there was no departure from the general formulations in McLeod; rather, an endorsement but specific refinement of them. The other judges agreed with Lord Hope and Lord Rodger.

[45] In Holland Lord Rodger referred without qualification to his own and to Lord Hamilton's observations in McLeod as to the formulations of the duty of disclosure. Neither party quarrelled with those formulations (para. [65]). In dealing with the specific matter of previous convictions of witnesses, Lord Rodger observed that

"It is obvious that a reasonably competent defence agent or counsel, considering how to approach the examination or cross-examination of a witness, would wish to know whether the witness had any previous convictions and, if so, their nature."

A scheme which did not provide automatically for disclosure of that material was " ... deeply flawed". In these circumstances disclosure of such convictions fell within the scope of the duty of disclosure of material evidence. Again, that practical rule involved no more than a refinement or particularisation of the general principle laid down in McLeod.

[46] Lord Hope agreed with Lord Rodger, confining his observations to the particular circumstances of the case. Although he appeared to agree with Lord Rodger that previous convictions of all witnesses are disclosable as a class, his observations in Sinclair at paragraph [29] tend to suggest that, in the case of such convictions, commission and diligence may, at least in some cases, be required. The remaining judges in Holland agreed with Lord Hope and Lord Rodger.

[47] Accordingly, in our view, McLeod, subject only to the specific refinements laid down in Sinclair and in Holland, remains the guiding authority in Scots law on the test for the extent of the Crown's duty of disclosure. These refinements are truly to be seen as applications of McLeod rather than departures from it. Mr. Shead offered no alternative formulation of the duty of disclosure. His submission amounted in substance to the tautological proposition that the Crown had a duty to disclose what it had a duty to disclose. That proposition, as we shall explain, can provide no foundation for an order under procedure by way of commission and diligence or for any other mandatory order. We would add that no party before us suggested that the passages we have quoted from Holland and Sinclair were obiter or otherwise not binding on this court. We proceed, for the purposes of this Opinion, on the assumption that they are so binding; but, on that assumption, they fall, in our view, to be interpreted in the way we have explained. Special considerations will, of course, arise where the Crown seeks on public policy grounds to withhold material which would otherwise be disclosable. But no such considerations arise in any of these appeals.

[48] We add in this chapter a further word in relation to the formulations in McLeod. Lord Hamilton at page 83B referred to material which the Crown has "within its possession and knowledge". The other judges made no reference to knowledge. However, "possession", at least in some contexts, encompasses not only the physical holding of something but knowledge that one holds it. Possession in the context of an obligation to disclose should be understood in that sense. However, for this purpose "the Crown" includes not only the public prosecutor but police forces subject to her direction.

[49] The test which we have identified from McLeod appears to be consistent with Strasbourg jurisprudence. In Edwards v United Kingdom (discussed in McLeod) it was held that it was a requirement of fairness under Article 6(1) that the prosecution authorities disclose to the defence "all material evidence for or against the accused" (para. 36). That proposition was repeated in Rowe and Davis v United Kingdom at para. 60, in Jasper v United Kingdom at para. 51 and in Edwards and Lewis v United Kingdom at para. 52. Evidence against an accused which is not to be relied on by the prosecution need not be disclosed unless specific reasons are given (Bendenoun v France at para. 52).

The disclosures in fact made prior to trial

[50] Although the submissions made to us were wide-ranging, it is important to put them in the context of the charges which each of the appellants faced, and were convicted of, and in the context of what disclosure was in fact made in advance of or during the respective trials. Information as to that disclosure was given to the court by the Lord Advocate in a Written Submission for the Crown provided shortly before the resumed hearing and elaborated upon by the Lord Advocate in her address to us. Mr. Shead complained that he had had no prior knowledge of this information nor an opportunity to check its accuracy. But we are confident that we can properly rely upon the Lord Advocate to place before us accurate information in that respect.

[51] The appellant McDonald was charged with murder by shooting. He was also charged with assault of another victim, again by shooting. Four associated contraventions of the Firearms Act 1968 were also charged. He was convicted of all six charges. The essential issue at his trial was whether the appellant was identified as the perpetrator of these crimes. The trial took place after judgment had been given by the Privy Council on 11 May 2005 in the cases of Holland and Sinclair. In advance of the trial, we were informed, there had been disclosed to the defence all statements given to the police by Crown witnesses, subject possibly to the exception of a police witness (PC Kiernan) who had spoken only to the ingathering of productions. Several witnesses were led in evidence for the defence. A suggestion was made at the trial that an important witness (identified for security reasons as "witness P") might have said to relatives of his, who were not on any list of witnesses, that he had not in fact seen anything of significance. That matter was investigated by the police with these relatives. The investigation disclosed that there was no substance in the suggestion. After discussion with the appellant's senior counsel, the matter was not taken further. Prior to the trial the defence had a redacted summary of statements provided by these relatives. Further unredacted statements by them were disclosed in the course of the appeal proceedings.

[52] The appellant Dixon was charged, along with two others, with the murder of an elderly woman in her home. He was convicted of that crime, together with attempting to defeat the ends of justice by endeavouring to destroy relevant evidence. The essential issue at his trial was whether the appellant, who had lodged a special defence of alibi, had been proved to have been party to the murder. The evidence against him was largely circumstantial. No evidence was led on his behalf. The trial took place before the cases of Holland and Sinclair were heard in the Privy Council. However, prior to the trial, the agent acting for the appellant, who had had some difficulty in precognoscing some witnesses and who at one stage had petitioned the court to have these witnesses precognosced on oath (a petition subsequently withdrawn), was given access, at the offices of the procurator fiscal at Kilmarnock, to all statements and precognitions held by the Crown.

[53] The appellant Blair was charged, with others, with assault and murder by stabbing. In the course of the trial the libel was withdrawn against the co-accused. The appellant was convicted of that charge. The essential issues at his trial were the sufficiency and cogency of the evidence that the appellant was the perpetrator. The appellant gave evidence and certain other witnesses were led on his behalf. The trial took place after the hearing of Holland and Sinclair in the Privy Council but before the judgments in these cases were delivered. Prior to the trial all statements given to the police by witnesses were disclosed to the defence. A companion of the victim made at the trial a clear identification of the appellant as the perpetrator. A child, then aged about 13 years, was believed by the Crown also to be able to identify the appellant as the perpetrator. In the event that child was unable, for health reasons, to give evidence in court. The Advocate depute made an application to adduce, under section 259 of the Criminal Procedure (Scotland) Act 1995, a statement earlier given by that child to the police. The defence did not oppose that application, which was granted. The calls in the specification of documents lodged on behalf of this appellant are directed to documents which may bear on the mental health of the child at the time he made the statement, to his capacity to speak the truth, to his suggestibility and to his capacity to give a coherent account of a past incident, as well as documents showing or tending to show what information was passed to the Crown relative to the child's health in connection with the case and in particular with the notice given under section 259(5). However, Mr. Shead made no submissions at this hearing in relation to these particular calls. He treated Blair's case as if there had been presented in it a specification in the same general terms as those presented on behalf of McDonald and Dixon.

Procedure to secure disclosure

[54] In McLeod commission for recovery of documents was sought prior to the trial. At page 80D-E Lord Justice General Rodger said:

"I consider, however, that an accused person who asks the court to take the significant step of granting a diligence for the recovery of documents, whether from the Crown or from a third party, does require to explain the basis upon which he asks the court to order the haver to produce the documents. The court does not grant such orders unless it is satisfied that they will serve a proper purpose and that it is in the interests of justice to grant them. This in turn means that the court must be satisfied that an order for the production of the particular documents would be likely to be of material assistance to the proper preparation or presentation of the accused's defence. The accused will need to show how the documents relate to the charge or charges and the proposed defence to them."

That approach was adopted and applied by Lord Macfadyen in Maan, Petitioner 2001 SCCR 172. Likewise, at the appeal stage an appellant, if he seeks recovery of documents by diligence (an appropriate and well-tried procedure in criminal proceedings), requires, in our view, to explain the basis upon which he seeks the order and the court will not grant it unless satisfied that it will serve a proper purpose and that it is in the interests of justice to do so (see Hoekstra v HM Advocate (No. 1) 2000 SCCR 263 and Hoekstra v HM Advocate (No. 5)). The same preconditions apply, in our view, to any other order which might be sought touching on the recovery of documents or other materials - whether under the Criminal Procedure (Scotland) Act 1995 or the Human Rights Act 1998 or otherwise.

[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.