Scottish High Court of Justiciary Decisons

FOR RECOVERY OF DOCUMENTS BY LIEUWE HOEKSTRA and JAN VAN RIJS and RONNY VAN RIJS and HENDRIK VAN RIJS v. HER MAJESTY'S ADVOCATE [2001] ScotHC 1 (18th January, 2001)

[1] This is the latest stage in the appeals of Lieuwe Hoekstra, Jan van Rijs, Ronny van Rijs and Hendrik van Rijs against their convictions of a contravention of Section 170 of the Customs and Excise Management Act 1979. On this occasion the appellants sought to recover various documents set out in a petition. At the hearing the principal submission was advanced by Dr. Sjöcrona on behalf of all the appellants since there was said to be no difference in their positions, at least so far as this matter was concerned. In addressing us Dr. Sjöcrona did not advert to the specific heads of the petition setting out the documents being sought and he did not seek to justify the individual calls for recovery. He approached the matter on a global basis. To a large extent we shall follow that approach in dealing with the application.

[2] The evidence at the appellants' trial was to the effect that they had been involved with a vessel, the Isolda, which had been loaded with drugs off the North African coast and had sailed to a point in the North Sea where she had met another vessel, the Ocean Jubilee. The contention for the Crown was that the drugs were then transferred to the Ocean Jubilee. In the course of the trial it emerged in evidence that a tracking device of some kind had been fitted to the Isolda, apparently by a Spanish official, and that signals from this device had played a part in the surveillance of the Isolda by the British spotter aircraft. An objection was taken to the admissibility of evidence stemming from the use of the device. In his short judgment on the objection, which he delivered on 9 December 1996, the Trial Judge records that "for the purposes of my dealing with this objection the Advocate Depute was prepared to accept that the tracking device may have been placed on the Isolda without warrant or proper authorisation". The Trial Judge proceeded to deal with the objection on that basis. In the result he repelled the objection; one of the appellants' grounds of appeal is to the effect that he was wrong to do so. At the hearing before us the Advocate Depute, who was not the Advocate Depute at the trial, explained that the Crown's position on this matter remained the same as it had been at the trial: the court should deal with the whole matter, including the argument that there had been a breach of the appellants' rights under Article 8 of the Convention, on the basis that the device had been placed on the Isolda without warrant or proper authorisation. In these circumstances we are satisfied that the appellants do not need the documents in question in order to be able to advance their argument relating to the admission of evidence deriving in some way from the operation of the tracking device.

[3] At their trial the appellants were represented by experienced counsel and solicitors. Before the trial they had an opportunity to investigate the case. Indeed the Advocate Depute explained to us that in advance of the trial the Crown had given the defence representatives the opportunity to attend at the Procurator Fiscal's office in Aberdeen to examine documentary and other evidence. In particular defence precognition agents had had an opportunity to examine the tracking device in 1996. On 2 November 1996 virtually all the solicitors and counsel had gone to a meeting at the Procurator Fiscal's office where the case was discussed and information was provided. Defence counsel had been to the Isolda on 18 September, 15 October and 27 November 1996. In October 1996 an officer of Customs and Excise had gone to the Procurator Fiscal's office in Aberdeen for the purpose of showing defence counsel and solicitors most of the material which Customs and Excise had, but which was not to be produced for the trial. Not all of the defence teams took up this opportunity.

[4] This account - which was not challenged by those representing the appellants - forms a significant element in the background against which we have to consider the appellant's application. As will be apparent, even from what we have said so far, the appellants are in effect seeking to recover documents and other evidence relating to matters which were issues at the trial - most obviously, the surveillance of the Isolda and its meeting with the Ocean Jubilee. Moreover, as we have just explained, the appellants' representatives had opportunities to investigate these issues before the trial and, accordingly, at the trial they challenged the Crown evidence to the extent and in the manner which they considered to be appropriate in the interests of their clients. They also had the opportunity to lead evidence on these matters, if so advised. It is therefore apparent that the appellants are in effect asking that the court should order the production of documents which would form a basis for trying to introduce evidence which was not led at the trial in relation to issues that were explored at the trial. But under Section 106 of the Criminal Procedure (Scotland) Act 1995 the circumstances in which the existence of evidence which was not heard at the original proceedings can constitute a miscarriage of justice are limited. In particular, under subsection (3A), there must be a reasonable explanation of why the evidence was not so heard. In addressing us Dr. Sjöcrona did not make any attempt even to suggest how the evidence which he was seeking to recover could fall within the terms of subsection (3A) and, in the circumstances which we have narrated, we are not prepared to treat it as though it could. It follows that the application for production of material which would not be fresh evidence of the kind contemplated by the statute is irrelevant and must be rejected on that ground.

[5] Among the items which the appellants seek to recover are various records relating to the "Wick radar facility" operated by Her Majesty's Coastguard. Mr. Dewar appeared for the Advocate General in relation to the Maritime and Coastguard Agency, which carry out certain functions on behalf of the Secretary of State for the Environment, Transport and the Regions. He explained that they do not in fact have a radar facility at Wick but added that the Agency would have no objection to making available to the appellants the items which they had made available to the prosecuting authorities. Mr. Gebbie said that he could not say whether these items would meet the terms of the call but counsel and agents would inspect them and see what the position was. We have no locus to intervene in this voluntary transaction between the appellants' agents and the Agency. We merely observe that, since these items could obviously have been recovered before the trial and, if appropriate, explored at the trial, we would not have made any order for the production of items relating to the Coastguard operation on the occasion in question.

[6] In addressing the court on the petition as a whole, Dr. Sjöcrona suggested that the approach to the production of documents and other items recently laid down by this court in McLeod v. H. M. Advocate No. 2 1998 J.C. 63 might, on one interpretation at least, be too narrow to meet the requirements of the Convention. In particular he focused on a passage in the opinion of the Lord Justice General where he said (1998 J. C. at p. 80 E - F) that

This was said to be a narrower formulation than that adopted by the Lord Justice Clerk when he said (1998 J.C. at p. 82 B) that

It was suggested that Lord Hamilton might also have been taking a wider approach when he held that, where the particular difficulties were identified by the defence, it was then for the court to determine whether an order for recovery should or should not be granted (1998 J. C. at p. 83 F - G). If the narrower approach represented the ratio of the decision, then we should convene a larger court to reconsider McLeod No. 2.

[7] Both the Lord Justice Clerk and Lord Hamilton expressed their agreement with the Lord Justice General's reasoning. This shows that they saw no inconsistency between their description of the approach to be followed and the description given by him. Nor do we. For present purposes, it is sufficient to say that, as the Advocate Depute indeed accepted, where, say, an accused intends to seek to have evidence excluded on the ground that it was obtained illegally, that is a matter which relates to the accused's "proposed defence" to the charge in question. It follows that, the court may order the production of documents relating to that matter if they would be likely to be of material assistance to the proper preparation or presentation of that aspect of the accused's defence. Mutatis mutandis the same test would fall to be applied at the appeal stage. For these reasons we are satisfied that the test applied by the court in McLeod No. 2 is not open to the criticism advanced by Dr. Sjöcrona and in these circumstances we have not found it necessary to refer to the decisions of the European Court of Human Rights which he cited to us.

[8] Dr. Sjöcrona advanced his criticism of McLeod No. 2 as part of a wider contention, that we should order a very general disclosure of documents at this stage so that the appellants could investigate the whole background to the prosecution and trial in order to ascertain whether the proceedings as a whole had been fair. But, at times at least, he seemed to overlook the nature and limits of our jurisdiction as an appeal court. The system of criminal appeals in solemn procedure is entirely statutory in origin. The grounds upon which this court can allow an appeal are laid down by Act of Parliament and at present they are embodied in Section 106 of the 1995 Act. Parliament has empowered us to deal with particular matters which must be set out in grounds of appeal. For obvious reasons, it has not empowered us to carry out a general inquiry into the background to the case or prosecution. There is accordingly no scope for this court to engage in the kind of general and unstructured investigation which Dr. Sjöcrona seemed to envisage. The appellants have set out their grounds of appeal. We are satisfied that they can deal with them without the need for the production of the documents set out in the petition. We shall accordingly refuse the application on behalf of each of the appellants.