For the crown: McConnachie QC Principal Advocate Depute; Hammond Advocate Depute; H.Carmichael Advocate instructed by the Crown Agent

For the accused: McBride QC; Graham Advocate instructed by Raymond McIlwham & Co., Solicitors, Glasgow.

24 October 2006

Procedural history

[1] On 17 May 2004 the accused appeared on Petition at Glasgow Sheriff Court charged with murder and the case was continued for further inquiries and the accused remanded in custody. On 25 May 2004 he was admitted to bail. He was indicted for trial at Glasgow High Court in the sitting commencing 29 November 2004. After several adjournments the trial was fixed for 2 March 2005 when the accused failed to appear and a warrant was issued for his arrest. On 21 April 2006 he again appeared on Petition at Glasgow Sheriff Court and was remanded in custody. On 31 July 2006 he appeared at a Preliminary Hearing at Glasgow High Court in respect of an indictment containing three charges, namely, assault to severe injury and permanent disfigurement, murder and a contravention of section 27(7) of the Criminal Procedure (Scotland) Act 1995. At that hearing counsel for the accused advised the court that there was an outstanding matter of disclosure but after discussions between agents for the accused, the procurator fiscal, defence counsel and the advocate depute the process of disclosure would be implemented that day. The advocate depute confirmed that disclosure would be made that day and agreed to the suggestion of defence counsel that a period of seven days should be allowed to enable the accused's solicitors to lodge any special defence and list of witnesses. In these circumstances and having regard to problems associated with the Crown failing to disclose relevant material to representatives of accused persons in cases mentioned below the court pronounced an interlocutor, the relevant parts of which are as follows:

" The Court ordains the Crown to disclose any additional information outstanding no later than 4pm on 1 August, allows the defence seven days thereafter to decide whether a special defence and list of witnesses is required and to intimate to the Crown any Crown witnesses which are required, appointed 16 October 2006 at 10am within the High Court of Justiciary at Glasgow as a diet of trial..."

Non-disclosure

[2] On 16 October the accused appeared for trial, pled not guilty adhered to special defences of alibi and incrimination and referred to a list of witnesses all of which had been lodged within the period specified in the interlocutor dated 31 July. The trial proceeded until 19 October. In the course of the evidence in chief of a witness senior counsel for the accused objected to the line of evidence designed to securing a dock identification of the accused, although the witness had not identified anyone at an identification parade attended by the accused. Prior to the objection the witness had testified that although he had not identified anyone at the identification parade he had told a police officer immediately afterwards that he thought the man with the weapon had been at a specified numbered position. In the course of the debate outwith the presence of the jury and the witness, senior counsel advised the court that no such statement had been made to a police officer and the advocate depute confirmed that he was unaware of any such statement. The advocate depute undertook to proceed with caution and the objection was withdrawn. The trial resumed after the lunch adjournment and the advocate depute disclosed to counsel for the accused that he had the statement allegedly made by the witness to the police officer immediately after the identification parade, as a result of which a further objection was made. In the absence of the witness and the jury counsel for the accused objected to the continuation of the trial until there had been full disclosure of all relevant material. Reference was made to Sinclair v HMA DRA No 2 of 2005 and Holland v HMA DRA No 1 of 2005. The advocate depute advised the court that he had been unaware of the existence of the statement until inquiries had been instigated as a result of the testimony of the witness. The statement had been discovered in a box of papers in the office of the procurator fiscal. He conceded that it was essential in the interests of justice that the representatives of the accused should be provided with all relevant material before the trial proceeded any further. He undertook to do so prior to the following morning when he would also provide the court with a full explanation. It was agreed that the jury would not return until 2pm the following day by which time the extent of non-disclosure would be apparent and the court could determine the appropriate course of action.

[3] On 20 October the commencement of proceedings was delayed until about midday because the Crown was still in the process of disclosure. When the court convened the advocate depute stated that there had been exhaustive investigations as a result of which it appeared that sixty two statements in total had not been disclosed to the representatives of the accused. The failure was due to the fact that this case predated the procedures introduced as a result of the recommendations of the Bonomy Committee. Such cases had recently been identified as problematic as regards disclosure of material because they were recorded in a different way. There were a number of such cases outstanding and there may be cases in this category that had resulted in convictions. The accused's representatives had requested the production of an emulator board mentioned in a statement that had now been produced and the Crown would comply with that request. Until all material was available no progress could be made with the trial and it was submitted that the trial should be delayed until Monday 23 October. Mr. McBride agreed with that submission. I acceded to that request but ordained the Crown to produce an affidavit dealing with the failure to disclose relevant material and the systems in place to ensure full disclosure. In view of the terms of the interlocutor dated 31 July I also advised the advocate depute that I wished to hear submissions on possible contempt of court by the Lord Advocate as the responsible minister. I also ordained the solicitor for the accused to produce an affidavit relating to the extent of disclosure of material to the defence and the date thereof. It seemed to me to be essential to have accurate sworn testimony in advance of the hearing on 23 October to enable an informed decision to be made.

[4] On 23 October the Principal Advocate Depute appeared along with the trial advocate depute and a Crown junior. I had the affidavits of David Stuart Austin Green, Divisional Procurator Fiscal, Central West Glasgow and of Raymond Cahal McIlwham, solicitor, Glasgow, solicitor for the accused. Mr. Green's affidavit had five Annexes containing guidance to procurators fiscal issued by the Crown Office and Procurator Fiscal Service (COPFS) relating to disclosure of material in all High Court cases where the first appearance on Petition was on or after 6 December 2004. A sixth Annexe listed the dates on which various statements had been disclosed to the accused's representatives. The guidance had been amended following the decision of the Privy Council in the cases of Holland and Sinclair op. cit. The result of inquiries undertaken by the Crown following 19 October was that of the one hundred and seven statements made to police officers by Crown witnesses listed on the indictment only ninety five were disclosed in terms of the interlocutor dated 31 July. The remaining twelve statements were disclosed on 20 October. The original preparation of this case by the Crown preceded the disclosure arrangements introduced as a result of the report of the Bonomy Committee. Following the arrest of the accused in April 2006 the Crown endeavoured to meet its obligations of disclosure by relying upon the electronic record of witness statements maintained by the police on their HOLMES system. It appears that the police did not transmit three of the twelve undisclosed statements to the procurator fiscal because of a clerical error. A further three of the undisclosed statements had been sent to the procurator fiscal in May 2004 but in error had not been entered into the HOLMES system and were therefore not considered by the procurator fiscal during the disclosure exercise in 2006. The remaining six statements were transmitted by the police to the procurator fiscal but were not included when the statements were printed for the purpose of disclosure. It has not been possible to establish the technical reason for this omission. In addition to the twelve statements that ought to have been disclosed a further 54 statements had been disclosed on 20 October. Of these forty two had been considered irrelevant and all fifty four did not need to be disclosed in terms of McLeod v HMA 1998 SCCR 77, Holland op. cit and Sinclair op. cit. The affidavit of Mr.Green also disclosed that on 21 July 2004 the police delivered hand-written witness statements to the procurator fiscal. These were the original hand-written statements taken from civilian witnesses. No attempt was made by the procurator fiscal to reconcile these statements with those subsequently supplied electronically "as it was believed that all statements had been supplied electronically for the purposes of the disclosure exercise in 2006". In the course of his submissions outlined below the Principal Advocate Depute explained that statements from civilian witnesses were noted by hand and thereafter typed into the HOLMES system. He also explained that no inventory of statements was submitted by the police or prepared by the procurator fiscal when they were received. The procurator fiscal was unaware of the number and nature of the statements received and only had recourse to the hand-written statements if problems arose in the course of a trial. The affidavit of Mr. McIlwham confirmed receipt of the statements from the Crown on 31 July and 20 October respectively.

Submissions for Crown

[5] In his careful submissions the Principal Advocate Depute accepted that the Crown had failed to disclose all relevant material to the defence in advance of the trial. The extent of that failure was as stated in the affidavit of Mr. Green, namely twelve statements. The remaining fifty four statements that had since been disclosed did not relate to witnesses on the Crown list. However he did not accept that the failure to disclose material in this case deprived the accused of a fair trial. His primary submission in that regard was that defence counsel now had all relevant material and was in a position to cross-examine any witness in the light of these statements as appropriate. In Sinclair Lord Rodger of Earlsferry had envisaged the possibility of a statement being disclosed in the course of a trial and the trial proceeding after a short adjournment. On the face of it there was no reason why that course could not be followed in this case. Alternatively, if in the light of the recent disclosure Mr.McBride could satisfy the court that it was necessary to make relevant further inquiries, the case should be deserted pro loco et tempore. Such a result would allow a new trial. The effect of the recent disclosure was that there was a reasonable prospect of a fair trial. Accordingly it would not be appropriate to take a decision that precluded the trial of the accused.

[6] In relation to the interlocutor dated 31 July 2006 it was accepted that the Crown had failed to deliver relevant material for the reasons outlined above. Whether that amounted to breach of the order was a matter for the court but there had been no intention to fail to comply with the order. Despite three other cases in July 2006 of which the court was aware of failures by the Crown relating to disclosure, there was no practice by the Crown of non-disclosure. The first such case was HMA v S.R. ,involving charges allegedly committed on 5 April 2005. On 20 July 2006 the court refused a Minute seeking postponement of the trial fixed for the following day. The trial had previously been fixed for 8 May 2006 but had been discharged on that date because of the failure by the Crown to disclose evidence linking hitherto unidentified DNA samples from the crime scene to a named individual. On 16 February police officers had been notified of the link and detained an individual on 3 March. The Crown did not notify the accused's representatives until the trial diet on 8 May. The second case was HMA v T where on14 July the advocate depute assured the court that once agreed documents were disclosed there would be full disclosure. On 21 July the Crown advised the court that was inaccurate. In the third case of HMA v G defence solicitors had sent numerous letters to the procurator fiscal requesting disclosure of witness statements and other documents. The procurator fiscal had failed to acknowledge any of the letters and no disclosure had been made resulting in delays in the preparation of the case for trial. The Principal Advocate Depute confirmed that he was aware of these cases but denied that they were indicative of a practice of non-disclosure despite there being four examples coming to the attention of the court in one month. He acknowledged that there were lessons to be learned from the present case. There are still cases in the same category of "old cases". The Crown intends to carry out a full audit of such cases at the earliest opportunity to ensure that the problems about disclosure in this case are not repeated. Secondly, in relation to cases where information is stored on HOLMES steps will be taken to ensure that all information is transmitted to and received by the procurator fiscal. Thirdly, it is clear that if there had been a reconciliation of the hand-written and typed statements the discrepancy would have been uncovered and this will be given consideration in future. Fourthly, it is evident that a system is required to check material received by the procurator fiscal.

[7] As regards the issue of contempt by the Lord Advocate, that matter should be remitted to another judge if I considered that there was cause for inquiry into the facts because I had pronounced the interlocutor dated 31 July. However I could decide to take no further action if I considered that the failure to comply with the terms of the interlocutor "could be excused as being wholly inadvertent, not intended, casual or accidental." In that regard he cited Beggs v The Scottish Ministers 2005 SLT 305 at paragraph 44.

Submissions for the accused

[8] Mr. McBride submitted that the test for desertion simpliciter was whether there had been deliberate action by the Crown to withhold material information or whether he could satisfy the court that the accused would be deprived of a fair trial in the future. He conceded that he did not meet either of these tests. However he invited me to desert the trial pro loco et tempore. While he accepted that the material provided by the Crown would enable him to cross examine J.S., he had identified four witnesses from the additional fifty four statements whom he wished to be precognosced and whom he may wish as defence witnesses. In addition two of these potential witnesses apparently speak to matters affecting a witness who has already given evidence. Although the names of these witnesses were on the list of witnesses whom the police did not consider relevant and who were not on the list of Crown witnesses, their significance for the defence would not have been apparent to the police or the Crown.

Response for Crown

[9] In response the Principal Advocate Depute acknowledged that in view of Mr. McBride's submissions it might be more appropriate to desert the case pro loco et tempore. The four witnesses mentioned by Mr. McBride had been identified to the Crown and police officers will encourage them to attend for precognition on behalf of the accused.

Decision

[10] The circumstances of this case have highlighted serious deficiencies in the practices and procedures of COPFS concerning the disclosure by the procurator fiscal at an early stage of relevant material to representatives of any person accused of crime. From the documents appended to the affidavit of Mr. Green it is evident that COPFS has devised such a scheme for cases where the first appearance was on or after 6 December 2004 ("new cases") and has amended the scheme to reflect changes in the law. This is not such a case but it is clear from the cases of S.R. and T. that even in new cases procurators fiscal do not always implement the scheme. The offences in these cases were committed in April 2005 and August 2005 respectively. Both are accordingly governed by the scheme yet it is clear that issues of disclosure were being addressed by the advocate depute at the trial diet and preliminary hearing respectively. In the former case the material that was not disclosed until the trial diet ought to have been disclosed as soon as it was available to the Crown in accordance with the test in McLeod v HMA. While I do not suggest that these examples illustrate a practice of non-disclosure by procurators fiscal generally, it is clear that the present system is not implemented throughout COPFS. In response to a question from me about monitoring the implementation of the scheme the Principal Advocate Depute suggested that disclosure reports were completed by the procurator fiscal and submitted to Crown Office with the precognition. As is clear from the two cases cited above this is inadequate and consideration should be given to the preparation and implementation of a more robust system of checking compliance by procurators fiscal with the scheme for disclosure. Failure to enforce the scheme rigorously will necessitate the adjournment of trials and continuations of preliminary hearings, as has already occurred. This results in wasted resources that could be deployed for other cases and it delays the conclusion of trials with the consequent increased inconvenience and anxiety for victims, witnesses and, where appropriate, jurors. Even more importantly failure to enforce the scheme carries the risk of a miscarriage of justice by depriving the accused and his advisers of access to material that may be relevant to the defence. None of these are in the public interest and COPFS must bear the sole responsibility if such situations arise.

[11] In relation to cases that commenced before 6 December 2004 ("old cases") any failure to disclose material at the appropriate stage has the same consequences for the accused, the public and the administration of justice. However it appears that the risk of non-disclosure in old cases may be greater because the practice of COPFS is to rely upon the accuracy and completeness of the historical information retained in HOLMES. No effort is made to confirm the reliability of the historical data provided. In saying that I do not imply any criticism of police officers who transmit such data but with the passage of time changes in system may affect the confidence that one may have in the completeness of the information provided. The most reliable source of information is the original hand-written statements. The present case illustrates the absence of basic checks that would reduce the risk of error, for example, the indexing of hand-written statements sent to the procurator fiscal and the reconciliation of such statements with the statements generated by HOLMES. The Principal Advocate Depute stated that it was intended to undertake an audit of old cases awaiting disposal to avoid repetition of the difficulties in this case. That is welcome but that may not be adequate. Should there not also be an audit of old cases that have resulted in a conviction?

[12] In any event the Crown properly accepts that in this case there has been a failure to disclose material evidence. The twelve statements from Crown witnesses clearly fall within the category of matters that the Crown is obliged to disclose. (Sinclair: Lord Rodger of Earlsferry at para. 49). However it seems to me that the additional statements in the possession of the police also come within this category. Although Lord Rodger of Earlsferry confined his remarks to statements of witnesses to be led at the trial and to witnesses considered in McLeod v HMA I do not think that he intended that disclosure could not extend to others. Indeed there may be instances where the obligation to disclose information favourable to the defence is not immediately obvious to the police or procurator fiscal. Such a situation has arisen in the present case in relation to four witnesses. The Crown has resolved this dilemma by disclosing all of the police statements in its possession. I understand that is the practice in new cases and should be adopted by the Crown for all old cases.

[13] In respect of the failure by the Crown to disclose relevant material what is the appropriate remedy? I have given careful consideration to allowing this case to continue as initially proposed by the Principal Advocate Depute. While I am of the view that such failures arising in the course of a trial can be remedied in most cases as envisaged by Lord Rodger of Earlsferry, the circumstances of this case do not justify continuing with the trial. Mr. McBride accepted that he could cross-examine J.S. Moreover in my opinion he could recall the Crown witness who has given evidence and about whom he has additional information. However the additional four witnesses are more problematic. They will require to be contacted and precognosced before being cited as witnesses. In view of the passage of time and uncertainties about their availability, it would be unfair to the accused to proceed without the matter being fully explored. I did not understand the Principal Advocate Depute to demur from the motion to desert the trial pro loco et tempore having heard Mr. McBride's submissions. I agree with both counsel that is the appropriate remedy as opposed to desertion simpliciter. Accordingly I shall desert the trial pro loco et tempore and the Crown may raise a fresh indictment, if so advised. This decision will undoubtedly cause additional distress and inconvenience to witnesses, relatives of the deceased and the accused and will result in a waste of a considerable amount of public expenditure but that is a natural consequence of the failures by the Crown.

[14] The only remaining issue relates to the failure by the Crown to obtemper the interlocutor pronounced by me on 31 July 2006. If such failure amounts to a breach of the order and can be construed as a possible contempt of court I was urged to remit the matter to another judge to determine the issue of contempt. Constitutionally the Lord Advocate as the responsible minister is held accountable for the actions of her officials. Accordingly if there is contempt of court the Lord Advocate is deemed to be in contempt although it is clear that she had no personal involvement in the decisions relating to disclosure in this case. It seems to me that there has been a breach of the order to disclose any additional material outstanding. On any view the Crown failed to produce material, including a statement from the Crown witness J.S., that was in its possession at the relevant date. There is no doubt that the necessary disclosure could have been made in time. The statement of J.S. was produced during an adjournment for lunch and the Crown was able to provide the accused's advisers with copies of sixty two statements within twenty four hours of the problem arising in the trial. The only reasons for the non-production of the relevant statements in compliance with the court order was the absence of a basic system of indexing material received by the procurator fiscal and of cross referencing hand-written statements with computer generated material. These basic failures call into question the competence of the management of certain officials within COPFS but their mismanagement and incompetence on this occasion can properly be described as casual and do not justify a finding of contempt against the Lord Advocate as the responsible minister. Accordingly I shall take no further action in respect of the breach of the order.