HER MAJESTY'S ADVOCATE v. WILLIAM WILSON and PETER GERRARD CAIRNS and DAVID WILSON and GARRY CONNELL WALES and RONALD ALEXANDER McCARLIE and TIMOTHY HARRIS
| HIGH COURT OF JUSTICIARY |
| | OPINION OF LORD REED in the cause HER MAJESTY'S ADVOCATE Pursuer; against WILLIAM WILSON, PETER GERRARD CAIRNS, DAVID WILSON, GARRY CONNELL WALES, RONALD ALEXANDER McCARLIE and TIMOTHY HARRIS Defenders: ________________ |
Crown: Turnbull Q.C, A.D.; Crown Agent
First Accused: Stewart; Levy & McRae
Second Accused: Toner; Lockharts
Third Accused: Livingstone; Fleming & Reid
Fourth Accused: Bovey Q.C., Moir; O'Donnell Vaughan
Fifth Accused: Brady Q.C., Thom; Gillespie Gifford & Brown
Sixth Accused: A.P. Campbell Q.C., Brown; A. C. White
15 June 2001
[1]The six accused in the present case face a number of charges involving allegations of sexual abuse of two young children, a boy and a girl. The sexual abuse alleged includes rape and anal penetration. In particular, the first accused faces charges involving the rape and anal penetration of the girl (charges 1, 5, 7, 11 and 13 on the indictment), a charge of non-penetrative sexual abuse of the girl (charge 9), and charges involving anal penetration of the boy (charges 2, 6, 8, 10, 12 and 14 on the indictment). The fourth accused faces one charge of non-penetrative abuse of the girl (charge 9) and one charge involving anal penetration of the boy (charge 10). The other accused face similar charges.
[2]The accused have been indicted for trial in the High Court of Justiciary on 25 June 2001. On 11 May 2001 the Lord Advocate gave notice to the accused, under section 67 of the Criminal Procedure (Scotland) Act 1995, that at the trial he intended with the leave of the court to examine two witnesses who had not been included in the list of witnesses served on the accused along with the indictment. Those witnesses were Dr Jacqueline Mok, a consultant paediatrician at the Royal Hospital for Sick Children in Edinburgh, and Dr Helen Hammond, a consultant paediatrician at St. John's Hospital, Livingston.
[3]Thereafter two minutes were lodged on behalf of the fourth accused. One of these gave notice of intention to raise a devolution issue, the devolution issue being expressed in the following terms:
"That by seeking to do this [scil by seeking the leave of the court to examine Dr Mok and Dr Hammond] the Lord Advocate has violated the minuter's right to a fair trial under Article 6(1), 6(3)(c), 6(3)(d) of the European Convention on Human Rights. Specifically the minuter's right to confidentiality and the right to prepare his case without being directly or indirectly inhibited from carrying out full and proper preparations for his defence in the context of an adversarial system of justice."
The second minute gave notice, under section 72 of the Criminal Procedure (Scotland) Act 1995, that the fourth accused sought a preliminary diet to resolve the issue raised in the devolution minute. Minutes in similar terms were thereafter lodged on behalf of the first accused.
[4]The minutes came before me at a preliminary diet held on 8 June 2001. At the commencement of the hearing, counsel for the fourth accused (who was not the counsel who had been instructed for the trial and had been involved in the preparation of the defence) moved that I should make an order under section 4(2) of the Contempt of Court Act 1981 postponing the publication of any report of the hearing until the conclusion of the proceedings against the fourth accused. Addressing me in support of the motion, counsel referred me to an article published in the Scotsman on 28 May 2001. One of the cases mentioned in the article, in columns 4, 5 and 6, was the present case. The article indicated the attitude of that newspaper to the present case. It described the history of the case as "a story of delay and evasion". If jurors read an article suggesting a "cover-up", that impression would be reinforced at the trial by their exclusion from the proceedings when legal points were being discussed. The issues which the devolution notice raised could have been raised at the trial. In that event, they would not have been dealt with in the presence of the jury. Counsel mentioned that an order under the 1981 Act had been made by Lord Carloway at a previous preliminary diet held on 18 April 2001. Lord Carloway had then made an order that the publication of any report of that day's proceedings, insofar as it related to the preparation of the defence and indication of the nature of the evidence which it was proposed to lead at the trial, be postponed until the conclusion of the proceedings. Counsel explained that he would like to know at the outset of the hearing whether or not I was prepared to make an order under the 1981 Act, as my unwillingness to do so might affect his decision whether to proceed with the hearing at all: he might prefer to raise the matter at the trial, when he could be certain that it would not come to the attention of the jury.
[5]In reply, the Advocate Depute observed that the risk of prejudice to the administration of justice was focused by counsel for the fourth accused upon the article published in the Scotsman. It was unrealistic to expect that jurors would recognise the present case from the article. There would have been no need for any order under the 1981 Act in respect of that article. The position would be the same in respect of any future article which discussed the case in the same general way.
[6]I considered that I could not properly take a decision on the motion until the conclusion of the hearing, as it would only be then that I knew what material had emerged which might require to be protected from publication. I indicated however to counsel that I was not persuaded in limine that an order under the 1981 Act was likely to be appropriate. As the court recently made clear in British Broadcasting Corporation, Petitioners, 2 May 2001, section 4(2) contains two requirements for the making of an order. The first is that publication would create "a substantial risk of prejudice to the administration of justice" and the second is that postponement of publication "appears to be necessary for avoiding" that risk. It was not immediately apparent to me that publication of a report of the hearing would give rise to a substantial risk of prejudice to the administration of justice. In particular, I was not so persuaded on the basis of the article to which my attention was drawn. That article was a feature article, rather than a news report, concerned with the treatment by the legal system of the victims of child sexual abuse. The article was concerned with the ways in which a focus upon the rights of accused persons, and in particular their right to have charges against them determined within a reasonable time, could conflict with the interest of victims to have their abuser convicted and sentenced. The article seemed to me to be legitimate reporting of a matter of public interest. It did not contain any details which would enable jurors readily to identify the present case as being one of those discussed. It appeared to me to be unrealistic to suppose that that article could conceivably influence a jury's verdict. It was not immediately apparent to me that the matters discussed at the present hearing were likely to be so sensitive that any report of those matters would create any risk of prejudice to the administration of justice. Even if there were such a risk, it seemed to me that it would be likely to be possible to eliminate the risk by the usual directions to a jury, and if necessary by giving the jury special directions tailored to deal with the particular circumstances. The motion was not renewed at the conclusion of the hearing, but it would be fair for me to proceed on the basis that it was not departed from. Having listened to the various matters discussed, I remained of the view that there was no basis for making the order requested in the circumstances of this case.
[7]In relation to the substance of the present matter, each of the minutes on behalf of the first and fourth accused contains the following averments:
"That on 7 May 2001 acting on confidential instructions from agents acting on behalf of the minuter, Dr Jacqueline Mok and Dr Helen Hammond attended at [a hospital] and carried out a medical examination of [the boy and the girl]. The purpose of instructing the said doctors was to obtain advice and guidance in relation to the further preparation and conduct of the defence, including inter alia the conduct of cross-examination by defence counsel at trial. In order to properly instruct the said doctors information, in the form of defence precognitions and documents, was imparted to them. The said doctors were expressly instructed as advisers and were informed of and accepted an obligation to retain, as confidential, all of the information and findings obtained as a result of their instructions. No decision had been made to cite the said doctors as defence witnesses and no such citation has occurred."
Addressing me on behalf of the fourth accused, counsel informed me that Crown productions 12 and 13 were reports by Dr Charles Shepherd, a paediatrician. These reports were to the effect that upon examination of the girl she was in a condition consistent with the kind of abuse alleged against the accused. Dr Mok was a lead paediatrician in child protection at the Royal Hospital for Sick Children in Edinburgh. She was identified as a potential expert in relation to the present case. An informal approach was made and, as a result, counsel for the fourth accused (i.e. counsel instructed for the trial) consulted with Dr Mok on 18 April 2001. The purpose of the consultation was to discuss her involvement as an expert in the defence case. At the consultation senior counsel explained to Dr Mok that she would be in receipt of confidential information, and she agreed to keep such information confidential. Senior counsel then explained to Dr Mok the accused's defence and focused on aspects of the Crown case which concerned the defence, including certain aspects which were to be the focus of the defence case. It was agreed that Dr Mok and her colleague Dr Helen Hammond would examine the children and that Dr Mok would not discuss her examination with anyone. Prior to being approached by the defence in this case, Dr Mok had no knowledge of, or involvement in, the case. Both children were outside Scotland, and in the care of their mother and her partner. Those persons were named on the Crown list of witnesses, but their addresses were given as care of the police. It was not possible for the fourth accused to have the children examined without the co-operation of the Crown. By letter dated 19 April 2001 the agent for the fourth accused wrote to the Procurator Fiscal asking for facilities for the children to be examined. On 7 May 2001 Dr Mok and Dr Hammond examined the children. The children's mother and her partner were present. Dr Mok had informed the defence that she had not disclosed to anyone but the defence the outcome of her examination. By letter dated 9 May 2001 the Procurator Fiscal wrote to the agent for the fourth accused, requesting a copy of Dr Mok's report. On 11 May 2001, before any reply to this letter had been received, the section 67 notice was served, seeking leave to add Dr Mok and Dr Hammond to the Crown list of witnesses. On 17 May 2001 Dr Mok was precognosced by the defence. Following that precognition, senior counsel decided that, rather than have her as a witness, he wished her to be present in court during the trial with a view to advising him on cross-examination and presentation of the relevant parts of the case. No report had been received from Dr Mok.
[8]Against this background, counsel submitted that, in proposing to have as a Crown witness the expert engaged by the defence, the Crown were infringing the rights of the defence, both by breaching the confidentiality to which defence preparations for trial were entitled, and by interfering with the defence's preparation and presentation of the case.
[9]In relation to the issue of confidentiality, counsel founded on the principle that "communications between a party and his legal adviser regarding the subject of a suit depending or threatened are secure from disclosure" (Dickson, Law of Evidence in Scotland, Vol. 2, para. 1663). That principle extended to communications with persons not in the legal profession, if they formed part of the preparation or preliminary investigation which the party made with reference to the cause (op. cit., paragraph 1667). The only exception to the principle of confidentiality of communications between a party and his legal adviser arose where the legal adviser was directly involved in carrying out an illegal transaction (Micosta S.A. v Shetland Islands Council, 1983 S.L.T. 483; Kelly v Vannet, 1999 J.C.109).
[10]The same principle of confidentiality was respected by the European Convention on Human Rights. The accused's right to confidential communication with his lawyer was one of the basic requirements of a fair trial in a democratic society (S v Switzerland, Series A No. 220, para. 48; Domenichini v Italy, 21 October 1996, para. 39). A breach of that principle was not dependent upon demonstrating the existence of prejudice (S v Switzerland at para. 50; Domenichini v Italy at paras. 36, 37 and 39).
[11]Counsel submitted that the principle of confidentiality applied both to those parts of the preparation of the defence case which the accused's lawyer was able to carry out himself in secrecy, and also to those parts which circumstances dictated were carried out with the knowledge of the Crown or of third parties. It could not be that the measure of the rights of the defence was the extent to which the practicalities of the case brought matters to the notice of the prosecutor. Both at common law and under the European Convention on Human Rights, the court had to adopt an approach to legal privilege which made the protection practical and effective. Counsel founded upon a passage in MacPhail, Evidence, at paragraph 18.19:
"It is essential to the proper preparation of a party's case that he should be entitled to insist upon there being withheld from the court any material which came into existence and any communication which was made wholly or mainly for the purpose of preparing his case in litigation then pending or contemplated by him."
Counsel also founded upon a passage, quoted by MacPhail at paragraph 18.24, taken from the Opinion of Lord Moncrieff in Anderson v St Andrew's Ambulance Association, 1942 S.C. 555 at page 559:
"... it is not only settled in practice, but it is a proper consequence of principle that a litigant, in the course of making preparation for the presentment of his ex parte case, is not subject to finding himself having inadvertently made preparation for presentment of the case against him."
Counsel submitted that Dr Mok was in the same position as regards privilege as the solicitor who instructed her to carry out enquiries, under reference to Stuart v Miller (1836) 14S. 837 at page 842, and Hepburn v Scottish Power plc, 1997 S.L.T. 859 at page 863K. What she knew, she had learned in the course of the defence agent's preparations for trial. But for her employment by the defence, Dr Mok would have no relevant evidence to give. Any material question she might be asked was objectionable, the rights in question being not those of Dr Mok but of the defence.
[12]In relation to the issue of interference with the preparation and presentation of the defence, counsel submitted that the role of witness for the Crown was inconsistent with that considered necessary, by senior counsel for the fourth accused, for the proper conduct of the defence: namely to provide advice during the trial. While she remained a potential witness, Dr Mok was liable to precognition on oath. There must be a danger that, on precognition or when giving evidence, Dr Mok would disclose what she had learned of the accused's defence, giving the prosecution an unfair advantage. Reference was made to Mowbray v Crowe, 1993 S.C.C.R. 730 at page 736B. If the Crown were permitted to behave in this way, legal advisers would in future refrain from making enquiries that might not help the defence, for fear of their being disclosed. The defence would thus be inhibited from exercising their rights under Article 6(3)(b) and 6(3)(c). Reference was made in that regard to Brandstetter v Austria, Series A No. 211, at paragraph 53.
[13]Counsel conceded that there could be no objection to Dr Mok's being precognosced or led in evidence by the Crown if she had been listed as a defence witness. In counsel's submission, however, persons involved in the preparation of a defence case only became available for precognition and citation by the Crown if they were listed as witnesses by the defence.
[14]Counsel also conceded that Dr Mok might, at least in theory, be in a position to give evidence about relevant matters which was not based to any extent upon her involvement in the preparation of the defence case. If, for example, an issue were to arise at a trial of this nature as to the delay by the complainers in reporting alleged incidents of abuse, then it might be that a person with Dr Mok's experience and expertise would in principle be able to give evidence as to whether that was a common or unusual feature of such cases, and as to the possible explanations for such behaviour. In counsel's submission, however, it would be illegitimate for Dr Mok to give evidence even about matters of that kind. In other words, the objection to her giving evidence was not confined to material which was protected by confidentiality by reason of having formed part of the preparation of the defence case. By virtue of having been instructed to advise the defence, Dr Mok was rendered "out of bounds" as far as the Crown were concerned. The defence would no longer wish to instruct Dr Mok as an adviser, if she were to be a Crown witness. It would be difficult to take her advice as to the cross-examination of the paediatrician instructed on behalf of the Crown, knowing that she would be going into the witness box. Counsel would be inhibited, in particular in disclosing to Dr Mok what the fourth accused's position might be. In practical terms, it would be difficult to reconcile her giving evidence with the defence right to silence. Her evidence could be influenced by her taking account of what had been put to her in discussion as being the fourth accused's position. It would be extraordinary for one person to be expected to fulfil both the role of a defence adviser and the role of a Crown witness. Counsel accepted however that it would be possible under section 267 of the1995 Act for Dr Mok to be given leave to remain in court in order to advise the defence, notwithstanding her being on the Crown list of witnesses.
[15]In terms of the devolution notice, the fourth accused sought "an order preventing the Lord Advocate from including the minuter's advisers, Dr Jacqueline Mok and Dr Helen Hammond, from being included on the Crown list of witnesses." After discussion, counsel submitted that an appropriate order would be a declarator that it would not be competent for the Lord Advocate to examine Dr Mok at the trial of the fourth accused, unless she were to be included on any defence list of witnesses.
[16]Counsel for the first accused adopted the submissions made on behalf of the fourth accused. He explained that Dr Mok had been instructed on behalf of the fourth accused, and Dr Hammond on behalf of the first accused. They had carried out a joint examination. Dr Hammond had had sight of defence precognitions. It had at all times been envisaged that she would assist counsel at the trial as an adviser.
[17]In reply, the Advocate Depute began by outlining the history of the case. There had been a number of trial diets fixed, and a number of hearings at which the trial had been postponed as a consequence of applications by the defence based upon difficulties encountered in the preparation of the case. In that context, the question of the examination of the two children had been aired before the court. It had come before the court prior to the second trial diet, a trial diet of 12 March 2001. At that time, minutes lodged on behalf of three of the accused had identified a need for the examination of the children by an expert paediatrician. The Crown understood that the proposal of the defence was to conduct one examination and to share the results amongst those acting for the various accused. That had not in fact happened subsequently. As a consequence, some of the other accused had an interest in having access to Dr Mok and Dr Hammond as potential witnesses. That had been intimated to the court at the last hearing of the case. If Dr Mok and Dr Hammond were added to the Crown list of witnesses, their evidence would be available to all of the accused, in accordance with section 67(6) of the 1995 Act. If on the other hand the position advanced on behalf of the first and fourth accused at the present hearing were to be accepted, then a consequence might be that the children would be approached on behalf of other accused for further examinations.
[18]At the time when I was being addressed by the Advocate Depute I did not have before me the complete papers in the case. Having now had an opportunity to examine them, I accept that the history of the case generally accords with the Advocate Depute's account. The accused were originally indicted for trial at a sitting beginning on 29 January 2001. At a preliminary diet on 12 January 2001, the trial was postponed to a sitting on 12 March 2001, and the twelve months time bar in respect of the first accused was extended to 23 March 2001. The postponement was granted on the application of the first, fourth and sixth accused. The notice lodged on behalf of the first accused narrated that his agents had instructed "a specialist child psychologist and paediatric" and that the witnesses would be unable to prepare a proper report within the time available. The notice on behalf of the fourth accused narrated that his agents proposed to instruct expert witnesses specialising in child psychology and paediatrics as regards inter alia the examination of the children. A second preliminary diet took place on 2 March 2001, when the trial was postponed for a second time, to a sitting commencing on 30 April 2001. A further extension of the time bar was granted. That postponement was granted on the application of the first, third and fourth accused. The notice lodged on behalf of the first accused averred that it was considered essential to the preparation of his defence that the complainers be examined by an expert paediatrician in order to establish whether the condition of their private and hinder parts was consistent with their having suffered abuse in the manner libelled in the indictment. The minute for the third accused contained an identical averment. The minute on behalf of the fourth accused was to similar effect. At a further preliminary diet, held on 18 April 2001, the trial was postponed for the third time, to a sitting commencing on 28 May 2001, and a further extension of the time bar was granted. The preliminary diet had been fixed at the request of the Crown, in order to ascertain the state of preparation of the defence. The notice lodged on behalf of the Lord Advocate explained that he had received a request on behalf of the first accused for the children to be examined by means of video colposcope for the purposes of a paediatric forensic evaluation. The postponement was granted on the basis that it was stated that further investigation was required. A further preliminary diet was held on 18 May 2001, the Crown having again applied for the diet in order to ascertain the state of preparedness of the defence. The diet was continued until 21 May 2001 in order to be dealt with by the judge who had dealt with the earlier diet on 18 April 2001. According to the minute of proceedings, counsel for the fourth accused intimated his intention to raise a petition concerning certain witnesses for the defence who had been introduced by the Crown on a section 67 notice (i.e. Dr Mok and Dr Hammond). Counsel for the fifth accused intimated that he wanted the fourth accused's witnesses. At the continued preliminary diet on 21 May 2001, the trial was postponed for the fourth time to a sitting of 25 June 2001, and a further extension of the time bar was granted. At that diet, according to the Minute of Proceedings, the Advocate Depute intimated that the Crown wished to precognosce two paediatricians who had examined two of the complainers on the instructions of the solicitors acting for the accused. Section 67 notices including the two witnesses had been served on the accused. Counsel for the fifth and sixth accused informed the court that they also wished to carry out precognition of the two witnesses included in the section 67 notices (i.e. Dr Mok and Dr Hammond).
[19]Reverting to the submissions made on behalf of the Crown at the present hearing, the Advocate Depute observed, in relation to the averments which I have quoted as to the instructions given to the doctors, that the court had been provided with no vouching of the nature of the information or instructions given to the doctors, or of the doctors' attitude to any obligation of confidentiality. As matters stood, the Crown had not approached the witnesses for precognition. Dr Mok had however contacted the Crown herself, expressing a desire to be precognosced. The Crown wished to treat each of these doctors as witnesses to fact. The Crown wished to precognosce them as to what they had found and observed during their examination of the children, and to seek their opinion evidence as to what the cause of any such findings might be. The Crown accepted that they could not recover any reports prepared by the doctors in their entirety, but considered that they would be entitled to recover any portions detailing the doctors' findings of fact.
[20]The Advocate Depute submitted that the mere fact that an expert had been instructed to report and to advise post litem motam did not entail that the expert's findings of fact or opinion must remain confidential. The Advocate Depute referred to the well-known case of Black v Bairds & Dalmellington Limited, 1939 S.C. 472. The Advocate Depute drew attention in particular to what had been said by Lord Justice-Clerk Aitchison at page 479:
"The modern tendency to relax the strictness of the older practice in the recovery of documents has been due to the anxiety of judges that the ascertainment of the truth should not be hampered by too great an insistence upon technical rules. If confidentiality is a plea of real substance it ought properly to be given effect to, but if, as sometimes happens, it is merely a pretext for concealing something that is inconvenient to be divulged, the plea ought to receive little consideration."
[21]The Advocate Depute accepted that the decision in that case was not directly in point. He had been unable to find any Scottish decision which was directly relevant. There were however a number of English decisions which offered useful guidance, the general principles of the English common law and Scots law in this field being similar.
[22]The Advocate Depute referred first to Harmony Shipping Co S.A. v Saudi Europe Line Limited [1979] 1 W.L.R. 1380. That case concerned a handwriting expert who had had a consultation with those advising the plaintiffs, and who was later approached by the solicitors acting for the defendants in the same action and gave them an opinion on certain documents. He then realised that he had already been consulted by the plaintiffs in respect of the same matter. He informed the defendants' solicitors that he could not accept further instructions from them. The defendants then served him with a subpoena, which the plaintiffs sought to have set aside. Lord Denning M.R. said, at pages 1384-1385:
"So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena ... That principle is established in the case of a witness of fact: for the plain, simple reason that the primary duty of the court is to ascertain the truth by the best evidence available. Any witness who has seen the facts or who knows the facts can be compelled to assist the court and should assist the court by giving that evidence.
The question in this case is whether or not that principle applies to expert witnesses. They may have been told the substance of a party's case. They may have been given a great deal of confidential information on it. They may have given advice to the party. Does the rule apply to such a case?
Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned. That means that a great deal of the communications between the expert witness and the lawyer cannot be given in evidence to the court. If questions were asked about it, then it would be the duty of the judge to protect the witness (and he would) by disallowing any questions which infringed the rule about legal professional privilege or the rule protecting information given in confidence - unless, of course, it was one of those rare cases which come before the courts from time to time where in spite of privilege or confidence the court does order a witness to give further evidence.
Subject to that qualification, it seems to me that an expert witness falls into the same position as a witness of fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts. It is interesting to see that it was so held in Canada in McDonald Construction Co Ltd v Bestway Lath & Plastering Co Ltd (1972) 27 D.L.R. (3d) 253. In this particular case the court is entitled to have before it the documents in question and it is entitled to have the independent opinion of the expert witness on those documents and on those facts - excluding, as I have said, any of the other communications which passed when the expert witness was being instructed or employed by the other side. Subject to that exception, it seems to me (and I would agree with the judge upon this) that the expert witness is in the same position when he is speaking as to the facts he has observed and is giving his own independent opinion on them, no matter by which side he is instructed."
[23]Later in his judgment (at page 1386) Lord Denning M.R. dealt with the argument that the expert witness was bound by contract not to give evidence for the other side:
"If there was a contract by which a witness bound himself not to give evidence before the court on a matter on which the judge said he ought to give evidence, then I say that any such contract would be contrary to public policy and would not be enforced by the Court. It is the primary duty of the courts to ascertain the truth: and, when a witness is subpoenaed, he must answer such questions as the court properly asks him. This duty is not to be taken away by some private arrangement or contract by him with one side or the other.
...
I would add a further consideration of public policy. If an expert could have his hands tied by being instructed by one side, it would be very easy for a rich client to consult each of the acknowledged experts in the field. Each expert might give an opinion adverse to the rich man - yet the rich man could say to each, 'Your mouth is closed and you cannot give evidence in court against me.' We were told that in the Admiralty courts, where there are a very limited number of experts, one side may consult every single one of them. Does that mean that the other side is debarred from getting the help of any expert evidence because all the experts have been taken up by the other side? The answer is clearly No. It comes back to the proposition which I stated at the beginning. There is no property in a witness as to fact. There is no property in an expert witness as to the facts he has observed and his own independent opinion on them. There being no such property in a witness, it is the duty of a witness to come to court and give his evidence insofar as he is directed by the judge to do so."
[24]The other two members of the court, Waller L.J. and Cumming-Bruce L.J., agreed with the judgment delivered by the Master of the Rolls. Waller L.J. also dealt (at pages 1387-1388) with an argument that the expert in question would be in difficulty in separating out in his mind anything which had been given to him in confidence from the rest of his evidence:
"What he is required in the main to give evidence about is the examination of four documents. It has been agreed that two out of the four are not carbon copies of the other two, and he is required to express an opinion as to whether or not it was probable or highly probable, I suppose, that the two that were not copies of the other two were in fact deliberately intended to look as if they were copies of the other two. As it seems to me, that is not a matter which depends on confidential information at all. It depends entirely upon the examination by somebody expert in those matters looking at the documents and deciding from a number of factors - [counsel] had said that there are ten or eleven points which indicate deliberation - whether or not it must have been a deliberate imitation and not an accidental one."
[25]The decision in Harmony Shipping was applied, in the context of criminal proceedings, in Regina v R. [1994] 1 W.L.R. 758. In that case the appellant was charged with sexual offences. During the prosecution case, the trial judge was asked to permit representatives of the Crown Prosecution Service to interview a scientist who had carried out DNA tests at the request of the defence solicitors on a blood sample provided by the defendant to his general practitioner for that purpose. Leave was granted, and subsequently the judge ruled that the evidence of the scientist, who had been subpoenaed as a witness for the prosecution, was admissible against the defendant. The defendant subsequently appealed against his conviction. The judgment of the court was given by Evans L.J.. He said (at page 760):
"There is no property in a witness: Harmony Shipping Co S.A. v Saudi Europe Line Limited [1979] 1 W.L.R. 1380, applied in a criminal case in Reg. v King [1983] 1 W.L.R. 411. The prosecution therefore cannot be prevented from approaching or calling a witness, merely because he (or she) has previously been consulted by the defence.
The evidence which any such witness may give is limited, however, by the normal rules of legal professional privilege. These may protect communications between the witness and the defence solicitors, assuming that they were made in contemplation of legal proceedings, etc., but they do not prevent the expert from giving his or her opinion on the matters in issue."
The court nevertheless held that the evidence had been wrongly admitted, but that was on the ground that the blood sample had been provided by the defendant to his general practitioner at the request of his solicitors and for the purposes of his defence in criminal proceedings. It had therefore been given in circumstances of confidence, and was "subject to legal privilege" under the Police and Criminal Evidence Act 1984. The defendant had therefore been entitled to object to its production or to opinion evidence based upon it. The court made it clear that the position would have been otherwise if the sample had been obtained in non-privileged circumstances:
"It is not a case where the witness's opinion was based on examination and testing of a sample obtained in non-privileged circumstances, or of the defendant himself. If she had been asked to test a sample lawfully obtained previously by the police when the defendant was in custody - as to which, we shall comment further below - then her evidence could have been given with no question of legal privilege arising."
[26]In light of these authorities, the Advocate Depute submitted that the plea of confidentiality should not be given effect. Insofar as the application to the court was based upon alleged interference with the preparation and presentation of the defence case, the Advocate Depute submitted that there was no substance in this point, which was highly speculative. There was no danger that, when precognosced, Dr Mok would disclose what she had learned of the accused's defence, giving the prosecution an unfair advantage. That supposition disregarded Dr Mok's own sense of professional responsibility, and the Crown's responsibility in conducting any precognition. The suggestion that she would make a similar disclosure in giving evidence disregarded those factors and also the opportunity of the defence to object to inadmissible evidence. The suggestion that the defence would be inhibited and would feel unable to take Dr Mok into their confidence was entirely speculative and without any reasonable foundation. In practice, experts were often instructed by defence agents on the understanding - which was made clear to the accused - that they might be cited by the Crown as witnesses against the accused. If the defence included the expert on their list of witnesses, as often happened, then the right of the Crown or other accused to lead the evidence was beyond question: section 67(6) of the 1995 Act.
[27]The Advocate Depute reminded me that the objection to the inclusion of Dr Mok and Dr Hammond in the section 67 notice, as set out in the minutes lodged on behalf of the first and fourth accused, was based on the European Convention on Human Rights (as given effect by the Scotland Act 1998). Under that Convention, admissibility of evidence remained a matter determined by domestic law. The Convention protected the right to a fair trial; but there was no sense in which the first and fourth accused were being denied a fair trial, and their submissions derived no support from the Convention jurisprudence.
[28]Finally, the Advocate Depute mentioned a practical aspect of the type of situation with which the present case is concerned. When those acting for the accused had sought an opportunity to examine the children, the Crown had approached the children's mother. She had not immediately been amenable to a further examination. That was understandable. The children had undergone such examinations in the past, and the examinations were of an invasive nature. She had however eventually agreed, on condition that she and her partner were present during the examinations. It was important that children should not be subjected, in a case with several accused, to repeated internal investigations on behalf of the various accused. That could only be avoided (in the absence of agreement amongst the accused) if an expert who had examined a child on behalf of one accused was capable of being adduced to give evidence as to his or her findings, regardless of whether that particular accused chose to include the expert in question on a list of witnesses. What the Crown were seeking to achieve, by adding Dr Mok and Dr Hammond to their own list of witnesses, was to make those witnesses available to all the other accused.
[29]In response to these submissions, counsel for the fourth accused sought an opportunity to reply briefly. He submitted that the Harmony Shipping case pre-dated the 1998 legislation giving effect to the European Convention on Human Rights. The case was also distinguishable on its facts. It was concerned with a situation in which, through accident, two parties had engaged the same expert. In the present case, one party had elected to chase an expert retained by the other party. The risk of a rich party retaining all the available experts was not a realistic one in the context of criminal proceedings. Counsel accepted that there were fields of expertise in which there were very few individuals qualified to give expert evidence. The Crown however had the first bite of the cherry, as they would have found an expert prior to service of the indictment. Counsel accepted that that might not always be so, as the issues in a case might not all be apparent at the time of service of the indictment. If a situation were to arise in which one party had retained all the available experts, then such a situation might give rise to an exception to the general rule, as had occurred in the case of Black v Bairds & Dalmellington Limited, which concerned a situation in which one party effectively had gained a monopoly of expert evidence (in that case, because the nature of the examination carried out by the expert witness had been so destructive as to prevent any subsequent examination by any other expert). In relation to the Advocate Depute's criticism of the absence of vouching of the averments in paragraph 2 of the minute, counsel stated that those averments were made on counsel's responsibility. The only qualifications to be made were, in the first place, that reference should have been made only to Dr Mok (Dr Hammond having been instructed on behalf of the first accused alone), and the averment that Dr Mok accepted an obligation "to retain" the information and findings obtained as a result of her instructions should be understood as meaning an obligation to treat them as confidential, and not to disclose them to third parties. In relation to the Advocate Depute's submission that the allegations of interference with the preparation and presentation of the defence were speculative, counsel responded that it was difficult to spell out the difficulties without disclosing the accused's defence.
[30]In a similar reply on behalf of the first accused, counsel informed me that Dr Hammond had been instructed on behalf of the first accused by letter dated 4 January 2001. That letter had enclosed video tapes and documents produced by the Crown. By letter dated 9 January 2001 Dr Hammond had been provided with further Crown productions. By letter dated 21 March 2001 she had been provided with defence precognitions.
[31]Although the applications to the court are based upon section 57(2) of the Scotland Act 1998, and in particular the Lord Advocate's duty to act compatibly with the rights of the accused under Article 6 of the European Convention on Human Rights, the discussion before me was concerned almost entirely with domestic law. I shall accordingly begin with that. I should make it clear that my observations cannot and do not pre-empt any decision which might be taken by the trial judge as to the admissibility of evidence. My decision on the present applications however depends in part on my understanding of how confidentiality will operate at the trial.
[32]The Scottish cases make it clear that confidentiality attaches, in the absence of exceptional circumstances, to any communication between an accused person or his legal advisers, on the one hand, and an expert instructed by them on the other hand. Confidentiality would thus attach to any information provided by or on behalf of the fourth accused to Dr Mok, and to any advice or report provided by Dr Mok to the fourth accused or those acting on his behalf; and the same would apply, mutatis mutandis, to the situation as regards the first accused and Dr Hammond. I was not asked to consider the situation in respect of any material which might have been produced by Dr Mok or Dr Hammond by way of a record of their examination (such as photographs or a video film), but I would be inclined to the opinion that such material (if created for the purpose of the preparation of the defence) would also be covered by confidentiality, in the absence of some exceptional circumstance (cf. Anderson v St Andrew's Ambulance Association, 1942 S.C. 555, in which observations were made about the case of Black v Bairds & Dalmellington Limited, and the Opinion of Lord Justice-Clerk Aitchison in particular). The Scottish cases do not, however, appear to me to contain anything going so far as to suggest that an expert adviser instructed by one party cannot be cited as a witness by the other party. In other words, confidentiality attaches to evidence, rather than to the witness; and it therefore renders particular evidence inadmissible, rather than preventing the witness from being called to give any evidence.
[33]The English common law of evidence dealing with legal professional privilege, and in particular the sub-heading of it sometimes known as "litigation privilege", appears to me to be based on the same underlying general principles as the corresponding Scots law. I refer in that regard to the observations of Lord Goff of Chieveley in R v Central Criminal Court, ex parte Francis and Francis [1989] A.C.346 at page 394, and also to Kelly v Vannet 1999 J.C.109 at page 115 per Lord Justice-Clerk Cullen. I can in any event detect no difference which is relevant to the present case. To the extent that the English courts, unlike the Scottish courts, have had to deal with the particular issue raised in the present case, their decisions are therefore a potentially useful source of assistance. The passages which I have quoted from the judgments of the Court of Appeal in the Harmony Shipping case appear to me to contain nothing which is inconsistent with Scots law. Viewing the matter from a Scottish perspective, I would respectfully find myself in complete agreement with the judgment of Lord Denning M.R. in that case. It may of course be possible to conceive of a situation in which it would be impossible for the witness to separate out confidential material from material which was not confidential. Approaching that matter in much the same way as Waller L.J. approached it in the Harmony Shipping case, however, it seems to me that there is no reason to suppose that the present case falls into that category. The evidence which could be given by Dr Mok or Dr Hammond as to their findings on their examinations of the children does not appear to me to depend on confidential information at all. Their evidence would depend upon what they saw or felt and upon the conclusions they drew from those findings based upon their own expertise and experience. I note that the decision in Harmony Shipping was applied in the context of criminal proceedings in Regina v R. and in the earlier case of Regina v King, and that in the former case the court said in terms (at page 760):
"The prosecution therefore cannot be prevented from approaching or calling a witness, merely because he (or she) has previously been consulted by the defence.
The evidence which any such witness may give is limited, however, by the normal rules of legal professional privilege. These may protect communications between the witness and the defence solicitors, assuming that they were made in contemplation of legal proceedings, etc., but they do not prevent the expert from giving his or her opinion on the matters in issue."
[34]I was not referred to any more recent English authority; but I note that the dictum of Lord Denning M.R. in Harmony Shipping which I have quoted was adopted by Lord Jauncey of Tullichettle, giving the reasoning of the majority of the Appellate Committee, in In re L (A. Minor) (Police Investigation: Privilege) [1997] A.C. 16. At page 25 Lord Jauncey said:
"Whereas a solicitor could not without his client's consent be compelled to express an opinion on the factual or legal merits of the case, a third party who has provided a report to a client can be subpoenaed to give evidence by the other side and cannot decline to answer questions as to his factual findings and opinion thereon. There is no property in the opinion of an expert witness: Harmony Shipping Co S.A. v Saudi Europe Line Limited [1979] 1 W.L.R. 1380, 1386G, per Lord Denning M.R.."
The same approach was adopted by Lord Nicholls of Birkenhead, giving the reasoning of the minority (at page 34):
"Parties are not able to suppress the evidence of an available expert. The views of the expert, if desired, can always be made available within the existing legal framework. In the time honoured aphorism, there is no property in a witness. The fact that an expert or other potential witness has already been approached by one party, and given a statement to that party, does not excuse him from giving evidence at the hearing at the behest of another party. If necessary his attendance can be compelled by service of a subpoena. He cannot be required to disclose the contents of communications between himself and the first party's legal adviser. But his evidence on the issue before the court, which is all that is material, can be compelled."
[35]In short, it appears to me that the domestic law relating to confidentiality does not prevent the Crown from citing an expert who has been instructed by the defence, or from asking that expert witness about her examination of the complainer and her findings of fact. Any communications between the expert and the defence, or any material brought into being for the purposes of the preparation of the defence, would however be protected by confidentiality, in the absence of some exceptional circumstance.
[36]Turning to the argument that the Crown's conduct would interfere with the preparation and presentation of the defence case, that argument appears to have no clear foundation in domestic law, although it might be presented as an aspect of a plea of oppression. In any event, the apprehensions on which the argument is based appear to me to be unreal. I see no reason to accept that there is a danger that, at precognition, or in giving evidence, Dr Mok or Dr Hammond will disclose what they have learned of the accused's defence. That apprehension presupposes that the Crown will encroach upon confidential material at precognition; that a consultant paediatrician will breach her duty of confidentiality at precognition; and that inadmissible evidence will be adduced at the trial. I see no reason to make any of those assumptions. The assertions that the defence would find it difficult to take the expert's advice, or to confide in her, knowing that she was liable to be going into the witness box, appear to me to be based upon the same presuppositions. I do not find it easy to accept that defence counsel would in reality feel "inhibited" by reason of a fear that Dr Mok or Dr Hammond would betray the confidence which had been reposed in them. Even if counsel did feel "inhibited", however, that would not in my opinion render the Crown's conduct oppressive, or deprive the accused of a fair trial, in the absence of reasonable grounds for such an "inhibition". It is also necessary to remember that even if, contrary to my expectation, confidential material were to be blurted out by a witness in front of the jury, the court would not be powerless to address the situation so as to continue to protect the accused's right to a fair trial. The court is not lacking in experience of situations in which evidence is given which a jury ought not to have heard; and the court has a variety of means at its disposal to ensure that the accused's right to a fair trial continues to be guaranteed.
[37]The policy argument that legal advisers will refrain from making enquiries that might not help the defence, for fear of their being disclosed, appears to me to be equally unreal. On the other hand, the possibility of children who are alleged to be the victims of serious sexual abuse being subjected to repetitive and intrusive medical examination in cases involving multiple accused, as a result of the insistence of each of the accused on keeping "his" expert inaccessible to all the other accused, appears to me to be a genuine danger and one which the court should endeavour to prevent, in the interests of the administration of justice.
[38]Reference to the European Convention on Human Rights appears to me to add nothing of substance, in the circumstances of the present case, to our domestic law. Article 6(3)(b) and (c) (which overlap in this respect) guarantee a right of confidential access to a lawyer, as the European Court of Human Rights held in S. v Switzerland; and I am prepared, for the purposes of the present case, to accept that that right extends to confidential communication with any expert adviser instructed by the defence. That much is in any event guaranteed by domestic law. The proposition that the Convention in addition guarantees a right to deny the Court or the opposing party access to the evidence of an expert instructed by the defence (as distinct from any matters communicated to him in confidence) appears to me to be without foundation in Convention jurisprudence. In this context, the primary purpose of Article 6(3)(b) (which was the provision primarily relied upon by counsel for the fourth accused) is to achieve equality of arms between the prosecution and the defence. That requires inter alia that the defence should have access to all material evidence obtained by the prosecution, including evidence obtained by the use of expert resources which the defence may lack (see eg. Edwards v United Kingdom Series A No. 247B). The notion that the defence should be entitled not only to instruct its own experts but in addition to suppress any material evidence which they might be in a position to give is however in my judgment contrary to the public interest in the administration of justice, and cannot in my view be regarded as an element of the right to a fair trial. The reliance placed by counsel upon the decision of the European Court of Human Rights in Brandstetter v Austria, as prohibiting state action which inhibits the accused from freely exercising his right to defend himself, appears to me to be misplaced in the present context. In that decision the European Court of Human Rights interpreted Article 6(3)(c) as prohibiting state action impeding the exercise of the "rights of the defence set forth in Article 6(3)(c)" (paragraph 51; see also paragraph 53). I do not however accept that the Convention confers any right on the defence to prevent the prosecution from adducing as a witness at the trial an expert who has carried out an investigation on behalf of the defence.
[39]In these circumstances I shall refuse the applications.