Scottish High Court of Justiciary Decisons

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Cite as: 1998 JC 67, (1998) JC 67, 1998 SCCR 77, 1998 GWD 4-161, (1998) SLT 233, (1998) SCCR 77, 1998 SLT 233, [1997] ScotHC 2

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HIGH COURT OF JUSTICIARY

OPINION OF THE LORD JUSTICE GENERAL

PETITION

to the nobile officium

ALISTAIR McLEOD

Petitioner;

against

HER MAJESTY'S ADVOCATE

_______

19 December 1997

The appellant is Alistair McLeod who was indicted for trial at Stranraer Sheriff Court on 1 September 1997. In relation to the proceedings on that indictment the appellant presented a petition seeking to recover certain documents. That petition was dismissed by the presiding judge (Lord Coulsfield) and the appellant appealed. On 3 October it was decided to remit the appeal to be heard by a bench of five judges. For reasons which it is not necessary to rehearse, on the following day the procurator fiscal served on the appellant a fresh indictment in identical terms and he called that indictment on 11 November. A first diet in respect of this indictment has been fixed for 6 January 1998 and a trial diet for 19 January 1998. I mention these matters simply to record the position: neither counsel for the appellant nor the Solicitor General submitted that they affected this appeal in the petition.

The indictment contains four charges, all relating to the period from March 1990 to August 1995. The first is a charge of permitting or suffering the smoking of cannabis or cannabis resin in premises known as the Kat House at the Bluebell Hotel in Lockerbie; the second and third are similar charges but relate to Ecstasy and amphetamine respectively, while the last charge is of allowing under-age drinking.

The charges resulted from a period of police observation of the premises which culminated in a raid on 12 August 1995. On that occasion the police detained and questioned 78 persons, including the appellant. The Solicitor General informed us that proceedings had been taken against a number of these persons and that the Crown had decided to postpone the proceedings against the appellant until the proceedings against the others had been completed. This in part explained why the appellant was only now being brought to trial. I mention en passant that the publicity surrounding those proceedings was the reason why this court ordered that the appellant's trial should take place in Stranraer rather than in Dumfries: McLeod v. H.M.A. 1997 S.C.C.R. 423.

When the police detained and interviewed the 78 people, they used a pro forma document which contained a series of questions and spaces for the police officer to record the answers given by the person interviewed. The questionnaire relating to the appellant is a production and that form at least was signed by the appellant and the police officers on each of its 21 pages. The questions cover matters such as whether the detainee used controlled drugs, whether he had been at the Kat House before and, if so, how often; whether he was there on particular dates and whether he had used or obtained controlled drugs and if, so, from whom. There are questions about whether members of staff were aware of any drug activities and about any involvement which they may have had in them. There are also questions about how often the appellant visited the premises, about what he did when he was there and about the extent of his involvement in the day to day running of the establishment.

Although 77 persons apart from the appellant were interviewed, only the names of a limited number of them appear on the list of Crown witnesses appended to the indictment. The appellant's advisers have, however, been supplied with a full list of the names and addresses of those who were interviewed. The appellant's agents have precognosced some of the 77 persons. They have been unable to contact a number of them. Of those whom they have precognosced, some have indicated that they can no longer remember the position because the events occurred two years ago while others have said that they cannot remember because they had been drinking at the time. In that situation the appellant presented a petition to the High Court asking the court to grant a commission and diligence for recovery of all 77 questionnaires. Although in the prayer the appellant seeks a commission and diligence, in many cases a simple order for the production of the documents in the hands of the Crown, as a party to the proceedings, would be the appropriate mechanism for providing the type of remedy which the appellant wishes. It was accepted at all stages of the present proceedings that, though the documents were rightly described as pro forma questionnaires, they were for all relevant purposes indistinguishable from police statements, i.e. statements either given by police officers themselves or taken from witnesses by police officers. It was also accepted that such police statements should be distinguished from Crown precognitions. Statement 5 in the petition is in the following terms:

"It is necessary for the proper preparation and presentation of the defence of the accused that those representing him have sight of the said questionnaires and of other interviews conducted by the police immediately following said raid on 12th and 13th August 1995. It is necessary so that the accused can be made fully aware of the case against him. It is necessary so that the accused can be fully aware of what was said by the detainees at the time in order that he can properly consider the position of those on the Crown list of witnesses and also the response of the others and their potential as defence witnesses. Difficulties have been experienced in precognoscing witnesses who, due to the passage of time, have no precise recollection of the answers they gave. Others precognosced have indicated that [they] had been drinking at the time and cannot recall the answers they gave. It is also necessary that he be aware of the information given in order that he can consider whether any other witnesses or productions require to be considered or lodged. It is also necessary that these be available to the defence for lodging as productions if so advised or as material for examination or cross examination."

The Crown opposed the petition and the presiding judge dismissed it. In so doing he reviewed a number of Scottish cases and concluded:

"In the present case, no effort has been made to show that there are any particular instances in which production of the pro forma is necessary for special or individual reasons. The Crown have offered to discuss the evidence of the witnesses with the defence, but that offer has not been taken up. If it had been, and if it had emerged that the purposes of the defence, to which Mr. Kerrigan referred and which are, in themselves, entirely proper and important, could not be adequately served as a result of such discussions, then there would be reasons to support an application of this kind. In the present circumstances, however, in my opinion, the application is contrary to the current practice and no sufficient reason has been put forward to justify me in making the order sought."

At the original hearing of the appeal Mr. Kerrigan very frankly admitted that one purpose of the petition was to challenge the existing law and practice on the recovery of documents in the hands of the Crown in criminal proceedings. He cited a number of cases, including the decision of the European Court of Human Rights in Edwards v. U.K. A 247-B (1992). At that stage the Crown were not in a position to deal with the European Court authorities and the court decided to remit the case to a larger court in order that the previous decisions of the court could be reconsidered if necessary. The court ordered the parties to lodge a written argument.

It is perhaps salutary, given the very wide sweep of some of the arguments to which we listened, to recall that the court is considering an application for the court to grant to the appellant a commission and diligence for the recovery of the questionnaires. The issue for the court is whether that application should be granted or refused. Whatever reservations may have been expressed by the Lord Justice General in Downie v. H.M.A. 1952 J.C. 37, it was accepted by both parties that such an application is competent. Indeed the competency of granting a diligence was recognised by Hume (Commentaries vol. II, p. 402 note 3) and, as was pointed out in Renton and Brown, Criminal Procedure (3rd edition, 1956), p. 77 n. 1, before Downie the court had granted applications in quite a few cases in the period from 1887. The competency of the procedure has not been questioned since Lord Cameron set out the position in H.M.A. v. Hasson 1971 J.C. 35. In that case, in which the petitioner sought to recover documents which were not in the hands of the Crown, Lord Cameron made certain observations as to what an accused person required to aver in order to persuade the court that it would be appropriate to grant a commission and diligence to recover documents. Up until now, in any application for the production of police statements or other documents in the hands of the Crown, that issue has tended to become submerged in what was really a separate issue. Even if the petitioner averred what would otherwise be a sufficient basis for the grant of a commission and diligence, the Crown would oppose the grant on the ground that it would be contrary to the public interest in the effective prosecution of crime for documents falling into the class of police statements to be produced. For this reason the Crown argued that it was in the public interest for such statements to be kept confidential. The court could not challenge the Lord Advocate's assessment of that aspect of the public interest but required to consider whether the competing aspect of the public interest, that of securing a fair trial, meant that it should grant the commission and diligence despite the Crown's objection. This was the approach of Lord Maxwell in the Court of Session in Friel v. Chief Constable of Strathclyde 1981 S.C. 1 and, for instance, of Lord McCluskey in H.M.A. v. Ward 1993 S.C.C.R. 595 and Lord Osborne in Hemming v. H.M.A. 1997 J.C. 140.

At the original hearing of the appeal the Solicitor General stated that the Crown took the view that it was not in the public interest for police statements to be produced to the defence except when in the particular circumstances the interests of justice required it: when such a situation arose the Crown had always acted in a generous fashion and would continue to do so. Part at least of the Solicitor General's argument on that occasion was to the effect that it was in the interests of the effective prosecution of crime that police statements as a class should be kept confidential because, for example, this encouraged witnesses to provide information to the police. This was in conformity with the stance which, as I have explained, the Crown have adopted in the past and which they adopted as recently as February of this year at the hearing in Hemming.

The written argument for the Crown which was lodged for the present hearing recorded a major change in the attitude of the Crown, however:

"The Crown accept that it would no longer be right to claim confidentiality in respect of police statements merely because they belong to a class of documents which has traditionally enjoyed protection from disclosure."

This declaration relates, of course, to police statements as opposed to Crown precognitions. The Crown went on to indicate that, even though confidentiality would no longer be claimed in respect of police statements as a class, the Crown would continue to argue that in certain specific circumstances it would be contrary to the public interest for police statements to be recovered by accused persons. They expressed the point in this way:

"Nevertheless the investigation of crime is a private activity which is best carried out away from the glare of publicity. Particularly with serious crime it often relies on information from police informants, or on covert surveillance operations, or on police methods which require to be kept confidential. Evidence from witnesses may involve revealing details of private lives which they would prefer were kept private. Evidence of other crimes may also be revealed."

Dealing with the present case, the Crown stated:

"In this case there is no information contained within the statements which is sensitive or confidential in the sense that public interest immunity could be claimed in respect of them."

At the hearing the Solicitor General confirmed the new approach which the Crown are to adopt. The upshot of this important declaration is that in future it will only be where the Crown raise a public interest objection to recovery on specific grounds, relating to the actual document in question, that the court will need to decide whether the public interest in securing a fair trial requires it to order production of the document despite that objection. It can be expected that, in reaching its view, the court will continue to attach the weight which it has always hitherto attached to an expression of view by the Lord Advocate as to the public interest in maintaining the confidentiality of any document.

In other cases, of which the present is an example, that public interest issue no longer arises. The question for this court accordingly is whether the petitioner has averred a sufficient basis to justify the court in granting a commission and diligence. In Downie Lord Cooper pointed out that, whereas in a civil case the parties' written pleadings provide a ready means for assessing the significance of any documents which a party seeks to recover, in a criminal case the court has no means itself of knowing whether the documents are necessary or not. He added:

"It is well known that, in accordance with the traditions which have prevailed for generations, the Crown is always ready in every prosecution to make available to the defence, and if necessary to make a Crown production in the case, any documents which could reasonably be regarded as likely to be of assistance to the defence and to further the interests of justice; and the Solicitor-General has indicated that, if the petitioner is able to show to him - what so far she has made no endeavour to do so far as this Court is concerned or so far as the Crown Office is concerned - for what purpose and to what end production of the second and third documents is required, he will be prepared to consider that application on its merits and to deal with it in the generous and fair spirit in which such matters have always been dealt with in the Crown Office."

The court continued the petition to see whether the matter could be resolved on that basis and so Lord Cooper did not require to express any view as to the test to be applied by the court in such cases.

The editor of the third edition of Renton and Brown, Mr. F. C. Watt, Q.C., criticised what the court had said in Downie and expressed the view that

"in general, a statement by the accused's responsible adviser that the document in question is required for the conduct of the defence should be regarded by the Court as sufficient." (Criminal Procedure, p. 77)

This view was in its turn doubted by Lord Cameron in Hasson:

"As at present advised, I would regard this as too broad and bald a statement of the law, and I am not prepared to accept it as an adequate or sufficient test of the relevancy of a call for production of documents in the hands of third parties, especially when themselves not on the list of witnesses for the Crown or defence. In light of modern conditions I think this is an issue of very considerable difficulty and one which will at some time require authoritative definition and determination. I think something more than the mere ipse dixit of a responsible adviser is required, even if it be only an indication in general terms of the relation of the call to the charge or charges and the proposed defence to them. There are, as I have briefly indicated, very obvious difficulties in defining the limits within which such specifications may be granted. I do not think that it can be safely assumed that the well-known rules which are applicable to specifications in civil proceedings are necessarily applicable in criminal practice. Thus, for example, the rule which protects a witness against self-incrimination may place certain difficulties in the way of forcing a particular haver to produce incriminating documents, and there are other matters of substance and procedure which will require consideration. Fortunately, however, in this case it is not necessary to enter upon them."

In the present case the havers are the Crown, but the fact that the havers in Hasson were third parties serves as a reminder that one would expect that the criterion for judging the relevancy of the averments in a petition for the recovery of documents would be the same, whoever the haver happened to be. In particular the fact that the havers are the Crown would not in itself appear to be a basis for applying a different test. In Hasson Lord Cameron went no further than to say that something more than the ipse dixit of the accused's adviser was required before the court would grant the application, even if it were only an indication in general terms of the relation of the call to the charge or charges and the proposed defence to them. The main issue in controversy at the hearing before us was what test the court should apply.

On behalf of the appellant Mr. Kerrigan really argued that something less than the ipse dixit of the accused's representative was required. At its broadest his contention, which he stated as a matter of principle, was that 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 document should not be handed over. Among such special reasons would be the need to protect the security of the realm or the identity of a police informer or the working of an investigative technique used by the police. If the approach advocated by Mr. Kerrigan were indeed the correct approach in law, then a petitioner seeking an order for the production of documents would need to make only minimal averments to meet the test of relevancy. He would aver that an investigation had been carried out which had culminated in the charge or charges against him. He would also aver that statements and other documents had been generated in the course of that investigation and that he desired a commission and diligence for their recovery. He would need to aver no more. Indeed the reality is that, on that approach, an application to the court would be little other than a hollow formality.

While adhering to this as the underlying principle, Mr. Kerrigan said that he saw practical difficulties if it were applied in its pure form. He told us that in the English case of R. v. Black, The Times 1 March 1995, in which he had been instructed as counsel, he had been supplied with more than a million documents under the system of discovery which then obtained. He had no desire that the defence in Scotland should be similarly swamped with documents. He therefore suggested that, even though the Crown should in principle be required to produce all the documents in the investigation, in practice the Crown should first produce all the statements which the police had supplied to them and should then meet any further requests which the defence might make for material which the defence considered necessary for the proper preparation and presentation of the defence. This might include documents relating to forensic science tests or to items removed from the locus. But, as I understood his argument, if the defence insisted that they wanted access to all the documents in an investigation, the Crown should afford that access, not perhaps in the police office but in the office of the local procurator fiscal.

In his reply the Solicitor General pointed out just what such an approach might involve in practice. When a crime of a sexual nature was committed, the police often began by questioning known sex offenders in the area and then checking the information which they gave. In the nature of things most of these inquiries would come to naught, but the statements taken would form part of the papers of the investigation. Similarly, in many murder inquiries the police carried out extensive house to house inquiries over what might be a long period. Again most of these inquiries would be fruitless, but the records would form part of the police papers. If Mr. Kerrigan's broad proposition were correct, the defence could require the Crown to make available all the material gathered in such investigations, even though the vast bulk of it could have no bearing either on the case for the Crown or on the case for the defence. Since defence advisers would be careful not to expose themselves to the criticism that they had failed to investigate the case fully, they would in practice feel obliged to ask for and go through the available material in every case. There would be significant implications both for the preparation of cases within the statutory time limits and for the resources required to operate the system.

Mr. Kerrigan accepted, of course, that the defence would not actually want most of what would be produced under the system which he proposed. Most of it would be immaterial for their purposes. As the Lord Justice Clerk pointed out in the course of the hearing, Mr. Kerrigan was really arguing that, because the defence could not know what useful items might be found among the myriad useless items, we should introduce a system for the production of all the items so that they could be examined to see whether somewhere among them there was something which might assist the defence. To put the point another way, on Mr. Kerrigan's approach the court should grant a commission and diligence for the recovery of a mass of immaterial documents so that the defence could look through them in the hope of finding something material.

Mr. Kerrigan submitted that authority for his approach was to be found in Article 6 of the European Convention on Human Rights and in the decisions of the European Court of Human Rights on that Article. He argued that, since individuals have a right of petition to the Commission in Strasbourg, which might ultimately result in a decision of the European Court, we should treat the decisions of the Court as highly persuasive. Somewhat ironically perhaps, by contrast the Solicitor General was at pains to remind us that the Convention had not yet been incorporated into our domestic law, that the Bill was only now before the House of Lords and that, even if it became law, the statute might not be commenced for some time, during which various institutions would have the opportunity to review their procedures. We should therefore not jump the gun and act as though incorporation had taken place. We are, of course, well aware that any incorporation of the Convention lies in the future and that what we have to do is to apply our own law. In seeking to formulate the approach of our law we may, however, look at the decisions of the Strasbourg court just as we look at the decisions of any other court of authority to see what persuasive effect they may have.

Article 6 of the Convention provides inter alia:

"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ....

(3) Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence ...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

Article 6(1) is a general provision which enshrines the accused's right to a fair hearing in the determination of any charge against him. Article 6(3) simply specifies certain aspects of that general right to a fair hearing. In their case law the European Court have given substance to these abstract expressions of the rights to a fair hearing guaranteed by the Convention.

It is not necessary to examine all the cases to which we were referred. Time and again Mr. Kerrigan and the Solicitor General reverted to Edwards supra which Mr. Kerrigan admitted represented the high point in the European authorities from his point of view. He indeed claimed to find support in the Court's opinion in that case for the wide general principle which he submitted that this court should adopt.

It is necessary to look briefly at the facts of Edwards. Mr. Edwards was convicted of one count of robbery and two of burglary. The victim of the robbery was a lady aged 82 who had been able to take a quick glance at her attacker. She gave the police a description which corresponded with the description of Mr. Edwards. In her statement she said that she thought that she would recognise him again. The victim was not called as a witness, but her statement was read out in court. In fact the victim had been shown two books of photographs of possible burglars, including a photograph of Mr. Edwards, and she had failed to pick him out. The fact that she had not picked the appellant out was not made known to the defence and the police officer who read out her statement to the court did not tell the court. In addition, at Mr. Edwards' trial one of the police witnesses said that no fingerprints were found at the scene of the crime. In fact two fingerprints had been found which later turned out to be those of the next door neighbour who was a regular visitor to the house. Mr. Edwards was refused leave to appeal against his conviction, but he complained about the conduct of the police and an investigation was ordered. The Home Secretary referred the case to the Court of Appeal Criminal Division who refused Mr. Edwards' appeal. He then made an application to the Commission at Strasbourg alleging that his rights under Article 6 had been violated. By a majority the Commission held that there had been no violation of paragraph 1, read in conjunction with paragraph 3(d), of Article 6. By a majority the Court also held that there had been no violation of Article 6.

The passage in the judgment of the Court to which we were referred occurs at paragraph 36:

"The Court considers that it is a requirement of fairness under Article 6(1), indeed one which is recognised under English law, that the prosecution authorities disclose to the defence all material evidence for or against the accused and that the failure to do so in the present case gave rise to a defect in the trial proceedings."

When this passage is read against the background of the facts in the case, it can be seen that the Court were satisfied that the failure to disclose the evidence relating to the victim's inability to pick out Mr. Edwards and the evidence relating to the existence of fingerprints in the house did give rise to a defect in the trial proceedings. They went on to hold that none the less there had been no breach of the appellant's rights under Article 6 because

"the defects of the original trial were remedied by the subsequent procedure before the Court of Appeal. Moreover, there is no indication that the proceedings before the Court of Appeal were in any respect unfair."

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). Mr. Kerrigan sought to persuade us that this should be read as meaning all evidence which might turn out to be material, all possibly material evidence. On that basis he argued that the passage supported his broad proposition. I am satisfied, however, that the passage should not be read in that way. In the nature of things the European Court look back at proceedings which have run their course. It was because the Court regarded the evidence as to the victim's inability to pick out Mr. Edwards and as to the presence of two fingerprints as material to his defence that they found that there had been defects in his trial. On the other hand, had it emerged that the defence had not been told about evidence on some entirely insignificant point which was not material to Mr. Edwards' defence, there is nothing whatever to suggest that the Court would have held that this failure amounted to a defect in his trial. Similarly one could imagine the situation in the present case if a lady had been detained by the police when she called to collect her husband from the hotel and had said in reply to the questionnaire that she had never been there before, had just arrived and had seen nothing. If it turned out after the appellant's trial that her statement had not been made available to the defence, Mr. Kerrigan readily accepted that it would not be possible to argue on that basis alone that there had been a breach of Article 6 or that the appellant had not received a fair trial. For these reasons I find nothing in Edwards which supports Mr. Kerrigan's contention that an accused person is entitled to recover documents simply on the basis that they comprise statements taken in the course of an investigation which might possibly contain some material evidence. So far as one can derive guidance from the case it suggests that an accused person would be entitled to recover documents which were material to his defence to the charges against him.

We were also referred to the judgment of the Court in Benendoun v. France A 284 (1994). Mr. Benendoun was a French citizen who lived in Zurich and worked as a coin dealer. He set up a company with its head office in Strasbourg. The customs authorities investigated the affairs of the company and Mr. Benendoun was eventually prosecuted. At some point the customs authorities sent their file to the Revenue. The Revenue carried out an investigation which resulted in the raising of supplementary tax assessments against Mr. Benendoun on the ground of tax evasion and also in (separate) criminal proceedings against him. During the criminal proceedings Mr. Benendoun and his representatives had access to the customs file.

Mr. Benendoun appealed against the assessment for income tax. The appeal was dealt with in the Strasbourg Administrative Court. During the proceedings in that court, and despite requests made to the court, Mr. Benendoun did not have access to the customs file. In due course he applied to the Human Rights Commission on the ground that there had been a violation of Article 6(1) by reason of him not having had access to the customs file during the Administrative Court proceedings against him. The Court found that these proceedings had been in substance criminal but that there had been no breach of Article 6(1). They noted that the Revenue had not relied on the customs file in the administrative proceedings against Mr. Benendoun. Mr. Benendoun was therefore founding his allegation of a violation of Article 6(1) on the fact that he had not had access to documents which were not in the file produced to the administrative courts dealing with the case and on which moreover the Revenue had not relied. The Court added this at paragraph 52 of their judgment:

"The Court does not rule out that in such circumstances the concept of a fair trial may nevertheless entail an obligation on the Revenue to agree to supply the litigant with certain documents from the file on him or even with the file in its entirety. However, it is necessary, at the very least, that the person concerned should have given, even if only briefly, specific reasons for his request.

Mr. Benendoun sought production in full of a fairly bulky file. The evidence before the Court does not show that he ever put forward any precise argument to support his contention that, notwithstanding his admission of the customs offences and his admissions during the criminal investigation, he could not counter the charge of tax evasion without having a copy of that file. This omission is all the more detrimental to his case as he was aware of the existence and content of most of the documents and he and his counsel had had access to the complete file, at any rate during the criminal investigation ...."

I note that the Court considered that it would have been necessary, at the very least, for Mr. Benendoun to have given, even if only very briefly, specific reasons why the file should have been produced. They also seem to have had regard to the fact that the file was fairly bulky. Nor did they consider that it was sufficient for Mr. Benendoun simply to say that he could not counter the charge of tax evasion without having a copy of the file: they attached some importance to the absence of any precise argument as to why that was so, especially since he had previously had access to the file and knew its contents.

Again, I infer from this judgment that the Court did not consider that Mr. Benendoun's right to a fair hearing had been breached simply because certain documents had not been made available to him. The fact that the Revenue had not relied on those documents in the proceedings was relevant since they would not prima facie have affected the outcome of the trial. The Court recognised that, of course, there might be circumstances in which even such documents would need to be produced if a hearing was to be fair but, for the Court to reach the view that this was so, the accused person would need at least to indicate the specific reasons for his request for production of the documents. This approach is quite different from that advanced by Mr. Kerrigan and shows that it is perfectly possible to have a fair hearing, in terms of the Convention, even if an accused person does not have a right of unrestricted access to documents. A system under which an accused person needs to indicate the reason why the documents should be produced is consistent with the requirements of a fair hearing under Article 6(1).

There is therefore no support for Mr. Kerrigan's broad approach in the decisions of the European Court to which we were referred. He accepted that there was no support in our own law either. He laid no great emphasis on the English common law cases - perhaps not surprisingly since we are all conscious that the common law as ultimately developed in England proved so unworkable that Parliament required to intervene and change the system in the Criminal Procedure and Investigations Act 1996. In any event the approach which this court adopts must be one which fits into Scottish criminal procedure as developed both by the common law and in statute. Mr. Kerrigan did not dispute that, overall, our system ensured a fair trial for accused persons. It would indeed be strange if that were not the case since the plea of oppression exists to protect the accused's right to a fair trial. See McFadyen v. Annan 1992 J.C. 53. Our system achieves its objective, however, by a combination of procedures, practices and conventions which are not replicated precisely in any other system.

In the Scottish system the accused's representatives have an opportunity to investigate the case against him. They can precognosce witnesses and, if need be, apply to the sheriff to precognosce them on oath. Another important aspect of our system derives from the role of the Crown, as it has been understood down the years. That role has been discussed in a number of cases. In Slater v. H.M.A. 1928 J.C. 94 one of the grounds of appeal was that the Crown had not included the names of three individuals on the list of witnesses appended to the indictment. In dealing with that point Lord Justice General Clyde said (at page 103):

"An accused person has no right to demand that the prosecution should - in addition to supplying him with the names and addresses of all the witnesses who may be called - communicate to him all the results, material or immaterial, of the investigations made by the Procurator-fiscal under direction of the Crown Office. No doubt a very different question would arise, if it could be shown that the prosecution had betrayed its duty by insisting in a charge in the knowledge of the existence of reliable evidence proving the innocence of the person accused which it concealed from him. Such a proceeding would constitute a violation of every tradition observed in the Scottish Crown Office. To assume, without evidence, that the responsible officers of the Crown concealed from an accused person anything known to them which it was material for him to know would be wholly unwarrantable; and nothing of that sort is suggested on behalf of the appellant."

This passage positively affirms that an accused person has no right to demand that the Crown should communicate to him all the results of the investigation, irrespective of whether they are material or not. On the other hand the concluding sentence clearly recognises that it would be wrong for the Crown to conceal anything known to them which it was "material" for the accused to know.

I have already quoted the passage from the opinion of Lord Cooper in Downie delivered in January 1952. Two months later in Smith v. H.M.A. 1952 S.C. 66 Lord Justice Clerk Thomson had occasion to comment on the role of the Crown. Having explained the duty of the police authorities in reporting to the procurator fiscal and the procurator fiscal's duty to investigate, the Lord Justice Clerk said (at page 72):

"If it is decided to prosecute, an indictment is prepared. The primary purpose of an indictment is to state the charge against the accused and to give the names of the witnesses and the productions on which the Crown rely to prove their case. A practice has grown up of including in the indictment the names of witnesses and productions which may have a bearing on the innocence of the accused. Just how far this practice goes has never been defined and indeed is hardly capable of definition. Obviously it is a question of circumstances and must turn on the nature of the case and the information available to the Crown."

He then quoted part of the passage from Slater and continued:

"There can be little doubt, however, that the tendency in recent years has been for the defence to expect from the Crown, and indeed for the Crown to afford, a measure of assistance beyond what would have been in the contemplation of any previous generation of Scots lawyers. However that may be, the Crown does nowadays honour the practice of including witnesses and productions beyond what is strictly necessary for its own case

This practice springs from the Crown's recognition that it has opportunities for investigation which are not enjoyed by the defence. It is based also on the presumption of innocence and the consideration that an accused man is entitled to the benefit of the doubt. But the practice has not been pressed so far as to mean that the Crown is under any obligation to discover a line of defence. If, in a stabbing affray, the information before the Crown showed that both assailant and victim had knives in their hands, it would be the duty of the Crown to include in the indictment the knife which was in the victim's hand and the witnesses who can speak to it. But, if there is nothing in the material before the Crown to suggest a possible defence of self-defence, it would appear unnecessary for the Crown to include something in the indictment just because it might have a possible bearing on such a defence if taken. It is a question of degree."

This passage has been widely accepted as encapsulating the modern understanding of the duty of the Crown, not simply to put forward witnesses who support the Crown case but to include in the list other witnesses whose testimony may not be in line with the Crown case but which may have a bearing on the innocence of the accused and so may help the Court to form a balanced view of the evidence relating to the incident in question. Indeed the representative of the Crown not infrequently leads the evidence of some at least of those witnesses. It was therefore all the more surprising that in Higgins v. H.M.A. 1990 S.C.C.R. 268 at page 269, when delivering the opinion of this court, Lord Cowie should have declared that

"there is no obligation on the Crown to disclose any information in their possession which would tend to exculpate the accused. Very often the Crown of their own free will are prepared to give that information ...."

The Lord Advocate of the day repudiated this passage as an accurate depiction of the duty of the Crown and successive Lord Advocates have done too. Indeed in Ward v. H.M.A. supra the Advocate Depute expressly stated that the Crown did not wish to be associated with the statement in Higgins and in the present hearing also the Solicitor General rejected the statement. The written submissions for the Crown contain a succinct statement of the Crown's position on this point:

"The Crown accepts that it has an obligation to disclose any information which supports the defence case. This duty has long been set out in the Book of Regulations for the Procurator Fiscal Service and it extends to information which supports any known or stateable defence or which undermines the Crown case."

In the circumstances I am satisfied that the passage in Higgins does not accurately reflect the duty of the Crown as it has long been understood both by the Crown and by the courts. Indeed the idea that the Crown could proceed with a trial without disclosing to the defence matters which would tend to exculpate the accused is wholly inconsistent with the basic premise of our law that the accused is entitled to a fair trial. In my view therefore this Court should disapprove the passage in Higgins.

Mr. Kerrigan was ready to give the Crown credit for the generous way in which they interpreted their duty and he acknowledged the spirit of co-operation which they displayed. At the risk of sounding churlish, he none the less said that it was time for our system to stop relying on what he described as the "paternalistic" attitude of the Crown and that the court should instead declare that accused persons have the right to have all the documents in a criminal investigation - and in particular any police statements - produced. There is, however, nothing paternalistic in the approach of the Crown. The Crown have no interest in securing the conviction of any but the guilty and must be astute to avoid asking for the conviction of the innocent. When the Crown provide the defence with information which supports the defence case, they are therefore not acting out of a sense of charity but out of an awareness of their duty in a system which is tenacious of the presumption of innocence and jealous of the right of accused persons to a fair trial. The relatively small role which applications for the production of documents have played in our system is indeed powerful testimony to the fact that as a rule the Crown have discharged this duty. I know of no reason to suppose that the Crown's attitude will change or that they will be less punctilious in fulfilling their duty in future.

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. For his part Mr. Kerrigan accepts that by and large the Crown perform that duty. Equally, as was seen in Downie and has been seen repeatedly over the years since then in cases such as Ward, the Crown will respond to specific requests from the defence for information or for the production of statements or other items where the defence can explain why they would be material to the defence. Mr. Kerrigan did not dispute that the Crown acted in this way or indeed that an offer to respond to any such request had been made in the present case. Again, when they respond in this way, the Crown are not merely acting out of kindness but are performing their duty to impart information which supports the defence case in the particular situation where they have been made aware of the possible significance of these items for the defence of the accused.

In a system which operates in this way there should for the most part be no need for an accused person to invoke the petition procedure to recover documents whose possible exculpatory effect can be appreciated by the Crown, whether spontaneously or when the defence ask for them. In such a system also it can be expected that the defence will have access to the documents which are material to the preparation and presentation of their case. If, however, it emerges at the trial that something has gone wrong and a material statement or other document comes to light at that stage, our procedure is well able to afford the necessary remedy, whether by adjournment, permission to lead additional evidence or, in an extreme case, by desertion of the diet. Indeed even supposing the statement or document came to light after conviction, the appeal court could allow an appeal on the ground of a miscarriage of justice if there were a reasonable explanation as to why evidence about it had not been heard at the trial (Sections 106 and 175 of the Criminal Procedure (Scotland) Act 1995 as amended). Applications for the grant of a commission and diligence for the recovery of documents constitute only one part of this larger system for safeguarding the accused's right to a fair trial. This wider context has to be kept in mind in considering in what circumstances an application of this kind should be granted.

Like others in the past I am conscious of the difficulty of formulating the test which the court should apply when asked to order the production of documents in a criminal case where the charges are set out relatively succinctly and the only formal documents indicating a line of defence will be any transcript of the accused's judicial examination and any special defence or notice of incrimination. 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 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. Such a requirement imposes no great burden on an accused person or his advisers: the averments in the petition may be relatively brief and the court will take account of any relevant information supplied at the hearing. Moreover such a test is, I believe, consistent both with our native authority in cases such as Slater, Smith and Hasson and with the approach of the European Court in Edwards and Benendoun. How the test is to be applied in particular situations is best left to the court to work out as cases arise. I can record, however, that the Solicitor General accepted that the production of the police statements in Hemming would have been justified on this basis. He also accepted that it would probably be easier for an accused person to persuade the court that the test was satisfied in the case of police statements of Crown witnesses than in the case of police statements of other persons.

In the present case the court does not require to consider the position so far as the questionnaires of the witnesses on the Crown list are concerned. The Solicitor General conceded that they should be produced - but he made the concession on a particular basis founded on a broad and practical application of what he said was the Crown practice of lodging statements of persons who might have been co-accused but who had been tried separately. On the other hand the Solicitor General was careful not to concede that the police statements of the Crown witnesses in this case would have been recoverable if it had not been for this particular Crown practice. So far as the questionnaires of the other detainees are concerned, the appellant avers that the accused requires the questionnaires of the persons who are not on the Crown list in order to consider their response and their potential as defence witnesses and that he needs to be aware of the information given in order that he can consider whether any other witnesses or productions require to be considered or lodged. These are remarkably weak statements especially when the defence have had an opportunity to precognosce the people and have certainly precognosced some of them. It must also be borne in mind that, if the Crown considered that any of the questionnaires contained information which would support the defence case, they would be obliged to inform the defence. It is not suggested that they have breached that duty. The Crown would also be obliged to consider whether any other questionnaires contained such information in the light of any particular request made by the defence and, if so, to disclose it to the defence. More generally, so far as the application concerns persons who for various reasons could no longer remember the events in question or who had refused to co-operate or whom the defence had been unable to contact, the Solicitor General expressed sympathy with the predicament of the defence and said that the Crown would be prepared to help. In that situation the appellant has not established that an order for the production of the questionnaires would be likely to be of material assistance to the proper preparation or presentation of his defence.

For these reasons I would move your Lordships to dismiss the appeal.