Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> SCOTTISH CRIMINAL CASES REVIEW COMMISSION FOR AN ORDER IN TERMS OF SECTION 1941 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 REQUIRING PRODUCTION [2000] ScotHC 115 (29 August 2000)
URL: http://www.bailii.org/scot/cases/ScotHC/2000/115.html
Cite as: [2000] ScotHC 115
[New search] [Help]
THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION FOR AN ORDER IN TERMS OF SECTION 1941 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 REQUIRING PRODUCTION [2000] ScotHC 115 (29th August, 2000)
|
HIGH COURT OF JUSTICIARY |
|
|
|
OPINION OF LORD CLARKE in the Petition of THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION Petitioners; for AN ORDER IN TERMS OF SECTION 194I OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 REQUIRING PRODUCTION OF CERTAIN DOCUMENTS AND MATERIAL ________________ |
Petitioners: Moynihan, Q.C., C. Kelly; Scottish Criminal Cases Review Commission
Respondent: Menzies, Q.C., A.D., Dewar; Crown Agent
29 August 2000
[1] In this petition, the petitioners are the Scottish Criminal Cases Review Commission and the respondent is the Lord Advocate. The petitioners seek an order in terms of section 194I of the Criminal Procedure (Scotland) Act 1995 for production by the respondent of certain documents and other materials. Attached to the petition is a schedule of documents and other material in respect of which the order is sought. The schedule is in the following terms:
"(1) All documents and other material held by or on behalf of the Crown Office relating to the cases of Thomas Campbell, Joseph Steele and Thomas Gray who were convicted on indictment at Glasgow High Court on 10 October 1984, and without prejudice to the foregoing generality any and all documents and other material obtained or created during any investigations or proceedings (including the trial and any appeal or review) relating to those cases.
(2) All documents and other material held by or on behalf of the Crown Office relating to the cases of Joseph Granger and Alexander Joseph Reynolds who were convicted on indictment at Glasgow High Court on 14 March 1985 on charges of perjury committed in the course of the trial of Campbell, Steele and Gray, and without prejudice to the foregoing generality any and all documents and other material obtained or created during any investigation or proceedings relating to the cases of Joseph Granger and Alexander Joseph Reynolds (including the trial and any appeal or review of either case and the reference to the European Court of Human Rights in the case of Granger)".
The application for production of the foregoing documents is opposed by the respondent on behalf of the Crown.
[2] The matter came before me for a hearing in which the respondent's position was that the petition should be dismissed. In moving me to follow that course, the Advocate Depute relied on the following pleas-in-law in the answers which had been lodged on behalf of the respondent:
"(2). The petitioners' averments in paragraphs 7 and 8 of the statement of facts anent their belief that Crown Office is in possession of documentation which may assist them in the exercise of their functions, being irrelevant et separatim being lacking in specification, the petition should be dismissed.
(4) The petitioners not having specified any satisfactory basis for their request for unrestricted access to all material other than copy statements, precognitions and productions in relation to the review case and the connected case, an order under section 194I of the Act should not be pronounced".
At the conclusion of his submissions the Advocate Depute asked me to sustain those pleas.
[3] Both senior counsel for the petitioners and the learned Advocate Depute agreed that the petition raised an important question as to how section 194I fell to be construed. While both sides had, in good faith, been attempting, over a period of time, to arrive at an agreement as to what documents and other material in the possession of the Crown Office, should be handed over to the petitioners in relation to the cases to which the present application relates, without resort to the Court being required, they had ultimately been unable to agree as to the basis upon which the petitioners had a legal entitlement to recover documents and material, in the possession of the Crown, relating to cases which were being investigated by the petitioners and the scope of any such entitlement. It was, accordingly, necessary to seek the guidance of the Court in relation to the meaning and effect of section 194I.
[4] It is, in my judgement, necessary before addressing the question of the proper construction of the provisions of section 194I to set out, to some extent, the background to the establishment of the petitioners, their status and duties and to have some regard to the history leading up to this particular application.
[5] The genesis of the petitioners is to be found in the recommendations of the Committee chaired by Professor Stewart Sutherland on Criminal Appeals and Miscarriages of Justice Procedures in their report of June 1996. One of that Committee's important recommendations was that a new body should be established with power to consider alleged miscarriages of justice cases and to refer deserving cases to the Court of Appeal for determination. The recommendation was that this new body should replace the existing system whereby the Secretary of State had powers to refer cases to the Appeal Court, which powers were formerly to be found in section 263 of the Criminal Procedure (Scotland) Act 1975, as subsequently amended. Having considered various options in relation to procedures for having the cases of convicted persons referred back to the Appeal Court, on the basis of alleged miscarriages of justice, the Committee reached the conclusion that the one which was most likely to command public confidence was the removal of the Secretary of State from the process altogether and the establishment of a new body, completely independent of the Executive, with powers to consider alleged miscarriages of justice cases and to refer deserving cases to the Appeal Court. This was the only option which the Committee considered would properly address the issue of the separation of powers between the Executive and the Judiciary, which they regarded as the fundamental weakness of the current system and the remedying of which was the single most important consideration, see paragraphs 5.50 and 5.52 of the Report. Such a body had already been established for England and Wales under the Criminal Appeals Act 1995, following the recommendation of the Royal Commission on Criminal Justice. In discussing the composition of the proposed body the Committee stated that: "the most important consideration in appointing chairman and members will be that they have the personal authority, impartiality and integrity to command public confidence in the body's operations", see paragraph 5.54 of the Report. The Committee recommended that the new body should be able to refer cases to the Appeal Court:
"• where the normal appeals procedures have been exhausted
• where it believes a miscarriage of justice may have occurred and it is in the interests of justice that the case should be referred", - see recommendation 7.19.
In discussing the powers which the body should have, the Committee said that:
"the review body will also need to be able to acquire, or have access to, any necessary and relevant information, for example, documents, reports, witness statements and special advice ... when the new body is carrying out its own investigations it may require the power to obtain appropriate court orders for the precognition of witnesses or the production of documents. We recommend that the body should be empowered to petition the Court to obtain such orders" - see paragraph 5.68 of the Report.
[6] In an earlier part of the Report, which dealt with the scope of criminal appeals, the Committee recommended that the general basis for an appeal should remain that a miscarriage of justice had occurred and that this ground should not be qualified or limited in any way (see paragraph 2.30 of the Report). The Committee went on to say:
"Put simply, the Court should be empowered to review any and all relevant considerations relating to the case - whenever they may have arisen - in determining whether a miscarriage of justice has, in fact, occurred".
There is no suggestion in the report that in using the phrase "miscarriage of justice" in relation to the remit of the proposed new body, the Committee were envisaging any narrower meaning to be placed upon it in that context.
[7] The Committee's recommendations were, in the event, enacted in Part X A of the Criminal Procedure (Scotland) Act 1995. There was apparently very little parliamentary discussion of the provisions relating to the setting up of the new body and its powers. The Government of the day had initially rejected the Committee's recommendations that such a body was necessary in Scotland but, ultimately, however, the Lord Advocate announced in the House of Lords that he was moving certain amendments which became Part X A of the Act. In doing so the Lord Advocate said:
"Ultimately we came down on one side on this issue whilst the Committee came down on the other. After further consideration and taking account of the views expressed in your Lordships' House at Committee stage, we are prepared to accept that an independent body to review alleged miscarriages of justice should be set up, replacing the current statutory involvement of the Secretary of State.
This group of amendments and in particular amendment no. 26 provide for that. In general they are based on the recommendations put forward by the Sutherland Committee, but some of the detail and mechanics of what it has proposed correspond to some of the provisions of the Criminal Appeal Act 1995, which established the Criminal Cases Review Commission in England and Wales. These have required to be adjusted, where appropriate, for the Scottish context. I am not sure that it is necessary to go through these in detail." - see House of Lords Hansard 19 March 1997 column 944.
[8] The petitioners were established by section 194A as a body corporate. Section 194A(2) provides that they shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Commission's property shall not be regarded as property of, or held on behalf of, the Crown. Section 194A(1) provides:
"The Commission on the consideration of any conviction of a person or of the sentence (other than sentence of death) passed on a person who has been convicted on indictment or complaint may, if they think fit, at any time, and whether or not an appeal against such conviction or sentence, has previously been heard and determined by the High Court, refer the whole case to the High Court and the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII or, as the case may be, Part X of this Act".
Section 194C echoes the words of the Committee's recommendation by providing that:
"The grounds upon which the Commission may refer a case to the High Court are that they believe -
(a) that a miscarriage of justice may have occurred; and
(b) that it is in the interests of justice that a reference should be made".
The width of the petitioners' power is demonstrated by the provisions of section 194D(1) and (2) which are in the following terms:
"(1) A reference of a conviction, sentence or finding may be made under section 194B of this Act whether or not an application has been made by or on behalf of the person to whom it relates.
(2) In considering whether to make a reference the Commission shall have regard to -
(a) any application or representations made to the Commission by or on behalf of the person to whom it relates;
(b) any other representations made to the Commission in relation to it; and
(c) any other matters which appear to the Commission to be relevant".
The petitioners are obliged to give reasons for making a reference to the Court and also must give reasons for refusing to make a reference to the person or persons who have applied to them for such a reference to be made - see section 194D(4) and (5). Once again the width of the petitioners' powers can be seen in the provisions of section 194F which states:
"The Commission may take any steps which they consider appropriate for assisting them in the exercise of any of their functions and may, in particular -
(a) themselves undertake inquiries and obtain statements, opinions or reports; or
(b) request the Lord Advocate or any other person to undertake such enquiries or obtain such statements, opinions and reports".
Section 194H confers powers on the petitioners to apply to the sheriff for precognition of persons to be taken on oath.
[9] Without yet examining the provisions of section 194I, it is clear to me that, from all the foregoing, Parliament intended the petitioners to have the fullest investigative powers in reaching the decision whether or not a reference to the Court should be made in any particular case and that in exercising these powers, in the performance of their investigative duties, they are to act independently and to be seen to act independently. There can be no question, in my judgement, of their powers of investigation being directed or circumscribed by any other person or body. Any circumscribing of their powers of investigation must arise, if at all, simply, in my opinion, as a matter of law. If it were to be otherwise, then public confidence in the body and its activities, and its independence could be seriously compromised and the primary purpose in establishing the body would be defeated.
[10] The petitioners, shortly after they were established, began to investigate the cases of Thomas Campbell, Joseph Steele and Thomas Gray, who were convicted on indictment at Glasgow High Court on 10 October 1984. The petitioners aver that they are considering the whole background and history of that case which they refer to as "the review case". They also go on to aver that their investigation of the review case "encompasses the connected case of Joseph Granger and Alexander Joseph Reynolds who were tried on indictment on charges of perjury committed in the course of the trial of Campbell, Steele and Gray". These proceedings are referred to in the petition as "the connected case". At the time of the establishment of the petitioners, the cases of Campbell, Steele and Gray were before the Secretary of State, for the purpose of consideration by him as to whether, in the exercise of his powers, as they were prior to the passing of Part XA of the 1995 Act, he should refer the case to the High Court. With the passing of the provisions of Part XA of the 1995 Act, the Secretary of State's power to refer was abolished. The matter was, as I have just noted, then taken up by the petitioners. This involved the transfer of papers which had been before the Secretary of State. In a letter from the Crown agent dated 25 May 1999 addressed to the petitioners' Chief Executive, a copy of which was produced, it was stated as follows:
"We confirmed at our meeting here on 10 May that we had asked the Scottish Office to withhold papers when they transferred this case to you in early April. The documents in question fell into two categories, the first being statements and precognitions, and the second being minutes or parts of minutes from Crown Office to Scottish Office relating to this case in response to requests from the Scottish Office. We explained at the meeting that the latter are in effect inter-departmental advice, analysis and comment, which we do not believe would be appropriate to provide to the Commission. I understand that you would not in fact wish to seek material of that nature from the Crown Office.
There is, however, generally no problem so far as the provision of witness statements and precognitions is concerned, and I have asked Mr Miller to contact your case worker, Mr Johnstone, to make appropriate arrangements in that connection".
In replying to that letter, the petitioners' Chief Executive by letter dated 27 May 1999 said:
"The position as indicated by you concerning the inter-departmental papers relating to the case is understood. I note what you say regarding the remaining papers and have advised Mr Johnstone to expect a call from Mr Miller".
Thereafter there followed sundry correspondence between the petitioners and the Crown Office. The petitioners' investigations into the review case related to two charges on the indictment which were numbered 9 and 15 respectively. On 22 June 1999 the Crown Office provided the petitioners with seven documents consisting of police statements and precognitions. On 23 November 1999 the petitioners requested copies of all police statements held by the Crown Office relative to charge 15 which was a charge of murder. Under cover of a letter dated 15 December 1999 the Crown Office provided copies of certain material and said that it appeared that this was the extent of the documentation held by them that was relevant to the petitioners' inquiry in relation to charge 15. On 17 December 1999 the petitioners sought documents relevant to charge 9 which was a charge of attempted murder. On 22 December 1999 the Crown Office undertook to provide copies of statements relevant to charge 9. The petitioners aver that in that letter the Crown Office indicated that it would be helpful to them if the petitioners could specify any particular witnesses whose statements were of interest to the petitioners, otherwise the Crown Office could only provide the statements of those witnesses who appeared to the Crown Office to be relevant. The petitioners proceed to aver in the petition that:
"without unrestricted access to papers held by the Crown Office the petitioners cannot know the contents of the material held and therefore cannot give an exhaustive list of specific witnesses or specific documents that may be of assistance to them".
Under cover of a letter dated 9 February 2000 the petitioners received from the Crown Office what they describe in the petition as "a copy of another potentially relevant statement" in respect of charge 15, the production of which they say contradicted what the Crown Office had said in their letter of 15 December 1999. On 14 February 2000 the petitioners sought confirmation from the Crown Office that all statements relative to charges 9 and 15 had been produced. Under cover of a letter of 23 March 2000 the Crown Office sent to the petitioners copies of certain material. In their letter, the Crown Office indicated that it could suggest no further statements relative to charges 9 and 15 which might be relevant to the petitioners' inquiry.
[11] The petitioners, with the consent of the Crown Office, sought access to papers held by Strathclyde Police. Copy documentation was produced by the police, the original documents having apparently been destroyed. The petitioners aver that they understood that the copy documents were "sourced by the police largely from the Crown Office and the Procurator Fiscal's Office in Glasgow". The petitioners' averments continue as follows:
"On reviewing the documentation held by Strathclyde Police the petitioners found numerous witness statements, precognitions and other material not previously produced by the Crown Office which were valuable to the petitioners in furthering their investigation. These documents were relevant not only to existing lines of enquiry being pursued by the petitioners but also gave rise to new lines of enquiry which the petitioners have subsequently pursued. The fact that these additional papers were sourced by the police from the Crown Office and the Procurator Fiscal's Office in Glasgow and that the Crown Office had not previously disclosed the material to the petitioners has led the petitioners to believe that the Crown Office may have in its possession or under its control further documents and material which may assist them in the discharge of their statutory functions".
[12] In Article 6 of the petition the petitioners explain that following a review of the documentation released from the police the petitioners wrote to the Crown Office, by letter dated 23 March 2000, seeking access to further papers held by the Crown Office. On 31 May 2000 the Crown Office produced to the petitioners a general inventory of documents held by the Crown Office relating to the cases. A copy of this inventory has been lodged in the present proceedings by the respondent. There are twenty two categories of papers included in it. Among those categories are the following:
"14. Papers prepared by Crown in respect of appeal proceedings, divided into:
- collections of authorities;
- other documents assembled by the Crown in preparation for appeal proceedings, and indicated on the attached documents marked 'C'; and
- Crown analysis, comments and arguments relative to appeal proceedings.
15. Correspondence involving the Procurator Fiscal, police, Crown Office, Ministers, members of the public and defence solicitors including advice to Ministers between the time of the original enquiry and approximately December 1998, divided as follows:-
- general correspondence between Procurator Fiscal, police, defence solicitors and Crown Office relating to original investigation, Love perjury investigation and appeal proceedings, including reports to law officers;
- folders specifically relating to ministerial correspondence;
- chronological files of correspondence relating to petitions to the Secretary of State including correspondence between Procurator Fiscal, police, defence solicitors, Crown Office and Scottish Office, including advice to Ministers and inter-departmental advice analysis and comment between 10/12/85 and 27/4/98. A list of the witness statements and precognitions contained within these files is given in Appendix H".
The petitioners aver that, under cover of a letter from the Crown Office, dated 1 June 2000, there was sent to them a number of further statements and precognitions and statements which the Crown Office described in their letter as "clearly relevant" to previous specific requests for information made by the petitioners. This material had apparently come to light during the compilation of inventory just referred to. Then, on 5 June 2000, the Crown Office produced a further sixteen documents being statements and precognitions which appeared to them to be potentially relevant to charges 9 and 15 but which had not been previously disclosed to the petitioners.
[13] None of the history of the correspondence passing between the parties, which I have just endeavoured to set out, was in any material respect disputed by the respondent in his answers to the petition, or indeed by the Advocate Depute on his behalf, in submission to me. I would simply observe, at this stage, that while both the petitioners and the Crown Office had clearly been acting in good faith throughout all of this correspondence, it is clear from the history of that correspondence, which I just set out, that the pace and extent of the petitioners' investigation has been, to date, in effect, to some extent at least, dictated by the Crown Office.
[14] It is important for me to return to the correspondence to note the following. From the earliest point in that correspondence the Crown Office made it clear (in the Crown Agent's letter of 25 May 1999 referred to supra) that documents which fell to be considered as relating to inter-departmental advice analysis, and comment, would not be handed over to the petitioners and that position was accepted, as previously observed, by the petitioners, in their Chief Executive's letter of 27 May 1999. That appears to have remained the petitioners' attitude at least until 23 March 2000. On that date the petitioners' chairperson, Professor Sheila McLean wrote to the Crown Agent. In her letter she said inter alia:
"At present although the Commission has had sight of a substantial amount of that paperwork, in order to reach a thorough and informed conclusion on this case, it is necessary for the Commission to be apprised of as much information held on the cases as possible (obviously barring inter-departmental correspondence)" (my emphasis).
It is clear also to me from a perusal of the correspondence passing between the petitioners and the Crown Office that, at least until very recently, the petitioners' concentration, in their requests for material to be produced by the Crown Office, focused on precognitions, police statements and productions relative to the review case and that the requests did not extend to such documents in relation to the connected case. The order they now seek, if granted in its present terms, would entitle them to recover inter-departmental papers and, to be more specific, they would be entitled to documents embraced in categories 14 and 15 in the inventory referred to supra.
[15] The Advocate Depute explained to me that some of the material sought would be documents which the present law officers themselves had never seen, because of the established constitutional convention that ministers of a new administration did not have access to advice given to their predecessors by civil servants. I was somewhat surprised that this point was not fully elaborated upon, in submission before me. Be that as it may, it did appear to me that the respondent's position in respect of this application was to a some extent based on the view that such material should be irrecoverable though, as I have said, no legal argument was presented to me as to why that should be so. On the other hand, no explanation was given to me as to why the petitioners had, until at least 23 March 2000, apparently assumed and accepted that this type of material was not recoverable by them from the Crown Office.
[16] Against all of that background the question for me is one of relevancy and specification, namely have the petitioners averred a relevant and sufficiently specific case for an application for all the documents and material referred to in the Schedule, in terms of one of section 194I, to be considered and to be granted by the Court or do the provisions of that section, or some other principle or rule of law, require them to aver more than they have averred in this case before such an application can be considered and granted. The averments that support the need for the application in its present terms are as follows:-
"7. The petitioners have a duty to have regard to all matters which appear to them to be relevant. Reference is made to section 194D(2)(c) of the Act. The petitioners believe the Crown Office to have in its possession documentation which may assist them in the exercise of their functions. Without an opportunity to study the papers held by the Crown Office the petitioners are unable to give an exhaustive list of the specific documentation that is relevant. Given the history of disclosure to date, hereinbefore condescended upon, the petitioners believe that they may be assisted in their investigation by having access to the whole papers held by the Crown Office relating to the review case and the connected case. The petitioners have concerns about (1) the time taken to date to secure production of documents from the Crown Office and (2) the fact that the Crown Office has discovered additional relevant documents on being pressed by the petitioners following assurances that all relevant documents had been produced. In the circumstances the petitioners have concluded that it is necessary for them to have access to all of the documents held by the Crown Office to identify for themselves those which do in fact assist them in their investigations.
8. The documents specified in the Schedule are documents which the petitioners believe may assist them in the exercise of their function. ...
9. The Crown Office have been asked to give the petitioners unrestricted access to these papers but have refused to do so. Reasons given for refusing unrestricted access include confidentiality and possible contravention of the Data Protection Act 1998. Previously the Crown Office had raised a general concern about the possible human rights implications of release of documents to the petitioners, though it is not known if the Crown Office had any specific concerns on that ground in the present case. None of these considerations was an objection to production of the documents to the petitioners pursuant to an order of this Court. Reference is made to section 194I(2) of the Act and section 35 of the Data Protection Act 1998 ...".
I should say that the learned Advocate Depute in his submissions to me did not rely on any points arising from the Data Protection Act 1998 or any human rights point in seeking to have the petition dismissed.
[17] I now turn to consider the provisions of Section 194I.
It is in the following terms:-
"(1) Where the Commission believe that a person or a public body has possession or control of a document or other material which may assist them in the exercise of any of their functions, they may apply to the High Court for an order requiring that person or body-
(a) to produce the document or other material to the Commission or to give the Commission access to it; and
(b) to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate,
and such an order may direct that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Court.
(2) The duty to comply with an order under the section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of any enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.
(3) The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to-
(a) the case in relation to which the Commission's functions is being or may be exercised; or
(b) any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case).
(4) In this section-
"the Minister" means the Minister of the Crown as defined by section 8 of the Ministers of the Crown Act 1975;
"police force" means any police force maintaining for the local government area under section 1(1) of the Police (Scotland) Act 1967 and references to a Chief Constable are reference to the Chief Constable of such force within the meaning of that Act; and
"public body" means-
(a) any police force;
(b) any Government department, local authority or other body constituted for the purposes of the public service, local government or the administration of justice; or
(c) any other body whose members are appointed by Her Majesty, any Minister or any Government department or whose revenues consist wholly or mainly of money provided by Parliament".
It is clear that this section has been cast in very wide terms, indeed. It will be seen, for example, that the provisions of the section do not seek to exclude from their ambit any particular classes of documents or any individual documents which may have any particular quality or character. It is noteworthy that section 194I(2) expressly provides that a duty to comply with an order under this section is not affected by any obligation of secrecy or other limitation on disclosure. That must mean, in my opinion, that an application to the Court for an order is not to be considered as irrelevant, or otherwise inappropriate, if it seeks to recover documents which otherwise might be irrecoverable because of an obligation of secrecy or some other limitation on disclosure. The scope of the section, in this respect, is reinforced by the provisions of Schedule 9, paragraph 6(5) of the Act which provides that:
"where-
(a) a document or other material has been produced to the Commission under section 194I of this Act, or they have been given access to a document or other material under that section, and the Commission have taken away the document or other material (or a copy of it); and
(b) the person who produced the document or other material to the Commission, or gave them access to it, has notified the Commission that he considers that its disclosure to others may be contrary to the interests of national security,
the Commission shall, after consulting that person, deal with the document or material (or copy) in a manner appropriate for safeguarding the interests of national security".
It is apparent, accordingly, from those provisions the fact that a document may deal with questions of national security does not per se mean that a request for it by the petitioners is inept. That the documentation or material that may be recovered under section 194I goes beyond police statements, precognitions, productions and other material used in the preparation for and, in the course of, the original trial and any previous appeal, is, furthermore, established by the provisions of section 194I(3).
[18] Having regard to the provisions of section 194I as a whole, I have reached the conclusion that, in principle, there is nothing arising from those provisions, which makes it irrelevant or incompetent for petitioners to seek the documents and the material, to the extent which they do in the present petition. That that is the correct approach to be taken to the statutory provisions in Scotland, is supported, I think, by the approach of the legislation relating to the equivalent body to the petitioners which has been established for England and Wales. The Criminal Cases Review Commission was set up for England and Wales by the Criminal Appeal Act 1995 and its functions are similar to those of the petitioners. Section 17 of that Act provides:
"(1) This section applies where the Commission believe that a person serving in a public body has possession or control of a document or other material which may assist the Commission in the exercise of any of their functions.
(2) Where it is reasonable to do so, the Commission may require the person who is the appropriate person in relation to the public body-
(a) to produce the document or other material to the Commission or to give the Commission access to it, and
(b) to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate,
and may direct that person that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Commission.
(3) The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to-
(a) the case in relation to which the Commission's functions is being or may be exercised, or
(b) any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case).
(4) The duty to comply with the requirement under this section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of an enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission".
The language of section 17(3) and (4) is virtually identical to that which appears in section 194I(2) and (3) of the Scottish legislation, with regard to the documents or material that are recoverable by the Commission. The provisions of section 17 differ materially, however, from those of section 194I in relation to the way in which documents and other material held on behalf of public bodies may be obtained. The provisions of the English legislation do not envisage an application to the Court being required, but invest the Commission with a statutory power to require the appropriate person to produce or give access to the material in question. The exercise of those powers is subject to two qualifications. They come into play when the Commission believes that the document or material may assist them in the exercise of any of their functions and it is reasonable to request the production of or access to the documents or material in question. Section 18 of the English legislation deals expressly with one of the specific questions which arises in the present case. It provides as follows:
"(1) Section 17 does not apply to any document or other material in the possession or control of a person serving in a Government department if the document or other material-
(a) is relevant to a case to which this sub-section applies, and
(b) is in the possession or control of the person in consequence of the Secretary of State's consideration of the case.
(2) Sub-section (1) applies to a case if the Secretary of State-
(a) is, immediately before the day on which the repeal by this Act of section 17 of the 1968 Act or of section 14 of the 1980 Act comes into force, considering the case with a view to deciding whether to make a reference under that section or whether to recommend the exercise of Her Majesty's prerogative of mercy in relation to a conviction by a Magistrate's Court, or
(b) has at any earlier time considered the case with a view to deciding whether to make such a reference or whether so to recommend.
(3) The Secretary of State shall give to the Commission any document or other material which-
(a) contains representations made to him in relation to any case to which this sub-section applies, or
(b) were received by him in connection with any such case otherwise than from a person serving in a Government department,
and may give to the Commission any document or other material which is relevant to any such case but does not fall within paragraph (a) or (b).
(4) Sub-section (3) applies to a case if-
(a) the Secretary of State is, immediately before the day on which the repeal by this Act of section 17 of the 1968 Act or of section 14 of the 1980 Act comes into force, considering the case with a view to deciding whether to make a reference under that section or whether to recommend the exercise of Her Majesty's prerogative of mercy in relation to a conviction by a Magistrate's Court, or
(b) the Secretary of State has at any earlier time considered the case with a view to deciding whether to make such a reference, or whether so to recommend, and the Commission at any time notify him that they wish sub-section (3) to apply to the case".
For present purposes, the significance, in my judgement, of those somewhat convoluted provisions, is that by section 18(3) it is recognised that documents or other material, which have been received by the Secretary of State in relation to a case, which he has previously considered, or which he is in the process of considering with a view as to whether a reference to the Court should be made or not, or that there should be a recommendation that the royal prerogative should be exercised, and where these documents or material were received by him from a person serving in a Government department are not, in principle and, by definition, to be excluded from recovery by the Commission. The question as to whether they should be handed over or not is left to the discretion of the Secretary of State. Accordingly, it appears to me that in both jurisdictions the relevant legislation does not exclude, as a matter of law, the recovery of any class of documents or material, or any particular document or particular material, simply because of their nature or the circumstances in which they were created, or received and, in particular, that both the English and Scottish legislation recognise the possibility of departmental papers and material being recovered, though this result is arrived at by different routes. Accordingly, in my opinion, insofar as the respondent's stance is based on any particular class of document or other material being irrecoverable by the petitioners, as a matter of law, standing the legislative provisions, such a stance would be misconceived. In that connection I should refer to a letter from the Solicitor General to the petitioners' chairperson dated 14 June 2000. In that letter the Solicitor General appears to adopt the approach that the only documents which the Commission might recover are those which are "evidential" in character. He states:
"May I endeavour to make clear the Crown's position. The Commission will be given access to all the evidential papers. You will be able to copy and take away any papers you wish subject only to us being able to identify and resolve any issues of confidentiality. In the very unlikely event that there is still an issue regarding any particular statement or precognition it will be quickly identified and you will still have the ability, as in any case, to make the appropriate application to the Court".
Quite apart from there being possibly some room for debate as to what is to be encompassed by the description "evidential", I am of the opinion that if the Solicitor General was intending to circumscribe, by the use of that expression, the nature of documents and material which the petitioners might have, as a matter of law, because of the statutory provisions, then he was wrong to do so because, in my opinion, the relevant statutory provisions do not impose any such restrictions for the reasons I have already given.
[19] I should add this that in reaching the view I have about the construction to be placed upon section 194I and its scope, I take some comfort from the following considerations. In the first place, it seems to me that it is unlikely that the intention was that the body set up to replace the Secretary of State in dealing with these matters should have more limited powers of investigation and more limited access to material than he did. Secondly, one must assume that the persons chosen to chair and to be the members of this very important body, are persons who were chosen for, among other things, their qualities of judgement and discretion, having regard to the material that would inevitably come into their possession in the exercise of their functions. Thirdly, section 194J creates statutory offences in relation to disclosure of information obtained by members of the Commission or their staff, except when such disclosure is permitted by the Act.
[20] There does remain the important question, however, as to whether the present petition falls to be dismissed as being irrelevant, because of lack of specification, in relation to the precise reason or reasons why the order sought is cast in such universal terms. To put the matter another way, and perhaps more precisely, do the petitioners require, ex limine to set out more specific averments than they have as to why an order is required in respect of each and every document, and other pieces of material, they seek or at least in respect of various classes of documents that might be encompassed in the order they seek. It was, as I understood the Advocate-Depute's submissions on this ground he took his principal stance, at this stage. Counsel for the petitioners accepted that the provisions of section 194I did not provide for a purely administrative procedure, whereby the Court would simply rubber stamp any request made to it by the petitioners for recovery of any document or other material. He accepted that the Court must have a discretion as to whether to grant or refuse any such application or part thereof. He contended, however, that the onus was on the haver of the documents, or other material, to specify a good reason why the documents or material should not be recovered or some "fallacy in the Commission's decision-making process" in bringing the petition in question. His submission was that, having regard to the provisions of section 194I(1), there was no obligation on the Commission in making an application to the Court to aver that the documents and material they sought were relevant to their investigation and why they were relevant. That was not the test. The Commission simply had to believe that the document or other material might assist them in the exercise of any of their functions. Their role was one of investigation. In exercising that role it would not be appropriate, or indeed possible, for them to say in advance what documents or other material would be relevant to their investigations. In an appropriate case they would require to have access to documents and materials simply to determine what was relevant and what was not relevant. It would be quite inappropriate for them to seek to prejudge the outcome or development of their investigations by restricting their request to documents and material which clearly appeared to be relevant at any particular point in their investigations. That was clearly so having regard to their duty to give reasons for making a reference to the Court or refusing a reference once an application had been made to them. It was incumbent upon them, before setting out any such reasons that they should be satisfied that they had had access to and had considered all the material that may have a bearing on their decision. The respondent's stance was flawed in that it failed adequately to recognise that the petitioners were not in the position of a litigant in a contested litigation, seeking recovery of documents or other material. In that connection, counsel for the petitioners submitted that the position was to be contrasted with what was said by Lord Wilberforce in the case of Air Canada v Secretary of State for Trade (1983) 2 A.C. 394 where his Lordship at page 438-9 said as follows:
"In a contest purely between one litigant and another, such as the present, the task of the Court is to do, and be seen to be doing, justice between the parties - a duty reflected by the word 'fairly' in the rules. There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if a decision has been in accordance with the available evidence and with the law, justice will have been fairly done. It is in aid of justice in this sense that discovery may be ordered, and it is so ordered upon the application of one of the parties who must make out his case for it. If he is not able to do so, that is an end of the matter. There is no independent power in the Court to say that, nevertheless, it would like to inspect the documents, with a view to possible production, for its own assistance".
Unlike the position in relation to a contested litigation, as set out in that passage from the speech of Lord Wilberforce, the position in the present case is that the petitioners have a statutory obligation to carry out a full, independent and impartial investigation into alleged miscarriages of justice and the legislation under which they act was clearly designed to give the widest powers to perform that duty.
[21] It seems to me that there is considerable force in those submissions. It is important also that I should note that counsel for the petitioners assured me that there was no question of such an application, like the present, being made in all cases which are being investigated by the petitioners. It was necessary to make such an application, in these terms, in the present case, because of the history of the case and because of the width of the enquiry that the petitioners felt obliged to conduct. That enquiry was not simply in relation to the original trial and appeal, but the sundry procedure that had occurred, over a very lengthy period of time, in relation to the review case and the connected case. The enquiry would cover allegations of police misconduct and alleged misconduct by the Procurator Fiscal service. I should note that the respondent does not, in his answers to the petition, it seems, demur from the petitioners being required to indulge in an enquiry of that scope in the present case.
[22] I am satisfied that the averments of the petitioners as to the history of the particular case to which the petition relates, and the attempts that have been made by them to recover documents and other materials from the Crown Office (by which I am not to be taken to imply any criticism of the Crown Office's conduct in relation thereto) are enough to satisfy, prima facie, the requirements of section 194I and that the petition, and the order sought, cannot be said to be irrelevant in hoc statu.
[23] I am of the opinion that, standing the repeated assertions in this case, by the Crown office that they had handed over all the relevant material in their possession which, in the event, they have subsequently, by producing further material, accepted was not the case, and standing the apparent scope of the petitioner's investigations in this case and the history of the cases which are the subject of those investigations, the petitioners have a basis for averring a belief on their part that the documents and material they seek to receive may assist them in the exercise of their functions.
[24] The judgment as to whether the documents and material in question do, to any extent, assist them, and why they do, is one for the petitioners to arrive at, and is one which they cannot, by definition, reach until they have had access to the documents and material. This is what I take from the language of section 194I(1). To the extent, therefore, that the submission for the respondent was that the petitioners required to set out averments as to why the documents and material are relevant to their investigation, I consider that submission unsound, having regard to the wording of section 194I(I). Moreover, it seems to me that the position adopted by the Crown Office to date has, for the reasons I have endeavoured to give, been bedevilled by a wrong interpretation of the statutory provisions with regard to the nature of the documents and material that are recoverable by the petitioners. That has, in part, in my judgment, necessitated the petitioners bringing the petition and seeking the order they do.
[25] On the other hand I am not prepared at this stage to grant the order sought in the terms that it is presently cast, without giving the respondent a further opportunity to consider his position in the light of the approach I have taken to the interpretation of section 194I, and how I consider it falls to be applied. He has already given notice, to some extent, that special consideration might require to be given to the position of departmental papers and advice. I consider that it would be appropriate for further submissions to be made to me, if so advised, on behalf of the respondent, in relation to reasons why any class of document, or specific documents, should be excluded from the order sought. It may be that adjustment of the pleadings would be appropriate for that purpose. I should say that the Advocate Depute did invite me, if I was not minded to dismiss the petition simpliciter, at this stage, to continue the matter to enable him to reconsider his position and that was not something which counsel for the petitioners sought to oppose.
[26] For completeness I should say that while the petitioners in the prayer of their petition seek an order allowing them to take away documents and material which the respondent was ordered to produce, to be held and dealt with by them as required by Part XA of the 1995 Act, both sides were in agreement before me, that it was unnecessary for me to consider that part of the application, at this stage, since it was hoped that an agreement could be arrived at as to the procedure to be adopted in relation to dealing with any documents or material which might, in the event, be the subject of any order in terms of section 194I.
[27] I shall, accordingly, in the circumstances, have the petition put out By Order for further procedure.