Scottish High Court of Justiciary Decisons

JAMES ANTHONY DALY v. PROCURATOR FISCAL, GLASGOW [1999] ScotHC 57 (10th March, 1999)

The appellant James Daly appeared in the District Court at Glasgow on 4 December 1997 when he was convicted of a breach of the peace. Broadly speaking, this consisted of making a nuisance of himself with passersby-by attempting to beg and making comments. The case was one which depended entirely upon the credibility and reliability of police witnesses who came across the appellant and gave an account of what he had done. Their credibility and reliability being the crucial issue, it was of importance to know what had happened at the time and in particular to know whether the police had made a note of what the accused had said and done actually at the time. There was a discrepancy between the police as to when the appellant had been cautioned and charged. One of them, PC Yule, gave evidence that the caution and charge had taken place at the locus. The other constable gave evidence that to his recollection caution and charge had been subsequently at the police station. However, the first constable, Constable Yule, gave evidence that he had entered details in his notebook at the locus and the other constable confirmed his clear recollection that the notes had been taken at the locus. In these circumstances it was important for the defence to discover whether these had indeed been made at the time or later. That having happened and PC Yule having been allowed to use his notebook as an aide memoire, the line taken by the defence was that they sought to see the notebook in order to look at prior and subsequent entries. The Crown objected and the objection was upheld.

The first question in the present case is whether the Justice of the Peace was entitled to uphold the objection by the respondent to the appellant's request to view entries in PC Yule's notebook. The need to look at a notebook obviously arises on occasion in the course of trials. Differences can be drawn between cases where the notebook is a production and cases where it is not, and most usually perhaps the problem will arise where the notebook is not a production and has not therefore been seen in advance by the defence. That will arise in the frequent situation where a police constable is allowed to refer to his notebook as an aide memoire. This was such a case. The submission was that it was a legitimate purpose for the defence to want to see the prior and subsequent entries. If the prior entry in the notebook had been subsequent in date or time to the time of the alleged offence, that would suggest that the entry had not been made at the time of the offence. It was therefore legitimate to have that purpose of discovering whether the entry came where one would expect it or where one would not expect it if Constable Yule were right in his evidence. While that was the purpose it appears to us that the means adopted of wanting to see the entry was not the only means of achieving that purpose. It appears to us that the Justice was entitled to take the view that the content of a previous entry being confidential it should not be made available. It appears to us again that that left the matter entirely one for the agent conducting the defence as to whether he could achieve the proper purpose by other means. It also appears to us that he could have achieved his purpose by other means, by asking the constable to continue to use his notebook as an aide memoire, to use it in order to refresh his memory about dates and times and to look therefore at the dates and times of the preceding entry and possibly a subsequent entry in order to see whether his memory was sound as to the time when he had made the entries in question. It was suggested by Miss Scott on behalf of the appellant that in refusing to allow the proposed means of viewing the notebook, the Justice of the Peace should somehow have advised the appellant's agent as to how he might achieve his aims by other means or should positively have directed such a course or the like. It does not appear to us that it is for the Court, and least of all for a lay Justice faced with a professional agent, to give that kind of advice or direction or to qualify his decision on the confidentiality matter by adopting that pro-active role. These were matters for the conduct of the defence and in the whole circumstances we are satisfied that the Justice was entitled to uphold the objection and moreover he was entitled to convict. The appeal fails and the questions will be answered to that effect.

LIN