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Cite as: 2008 SCL 1271, 2008 SCCR 869, [2008] ScotHC HCJAC_53, [2008] HCJAC 53, 2008 SLT 941, 2008 GWD 33-496, 2009 JC 6

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Nimmo Smith

Lord Eassie

[2008] HCJAC 53

Appeal No: XC686/05

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL

PAUL McINNES

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Carroll, McClure, Solicitor Advocate; McClure Collins, Edinburgh

Alt: Stewart, A.D.; Crown Agent

26 September 2008

The prior proceedings
[1] The appellant was, with two others, on 13 December 2001 convicted after trial in the High Court at Glasgow of assault on Brian James Sweeney to his severe injury, permanent impairment and to the danger of his life and of his attempted murder. He was sentenced to imprisonment for eight years. He did not appeal against either his conviction or his sentence. He subsequently made an application to the Scottish Criminal Cases Review Commission which, after investigation, has referred his case to this court. Grounds of appeal were in due course lodged on behalf of the appellant.

The incident
[2] The incident which gave rise to the appellant's conviction occurred on 16 December 2000 outside premises known as the Duntocher Hotel, Duntocher, Dunbartonshire. A fight had shortly before broken out on the dance floor within the hotel. This had resulted in various persons, including the appellant, his two co-accused and the complainer, being forcibly ejected from the premises by stewards. Immediately upon his ejection the complainer was struck a blow to the head, administered by what was described by one witness as a "roundhouse" kick (a martial arts technique), as a result of which he was brought to the ground, where he was then set upon by a number of individuals. The crucial issues at the trial were the identities of the assailants, including that of the individual who had administered the "roundhouse" kick. The appellant at trial denied any part in the assault upon the complainer. While admitting that he had been in the hotel that evening, he lodged a special defence of alibi in relation to the incident outside it. He maintained that, having become aware that there was going to be trouble on the dance floor, he had decided to leave and had telephoned a friend to pick him up by car; the fight had broken out (in which he had played no part) and he had, with others, been ejected by a steward but, when outside, he had made his way to his friend's car and left in it. Evidence was given in support of that alibi.

The basis of the Crown case against the appellant
[3] So far at least as concerned the appellant, the Crown case depended on proof by witness identification that the appellant was one of the assailants. That proof rested exclusively on the evidence of two stewards, Craig McKernan and Brian Pearce; the complainer was unable to recall the events which led to the assault upon him. McKernan testified that he had seen the appellant and his co-accused assaulting the complainer as he lay on the ground. He described the appellant as wearing a cream or yellow shirt and light trousers. In evidence he was at first uncertain how the complainer came to be on the ground but later said that he had seen someone land an initial blow to his head. He did not describe the nature of that blow nor specifically identify the person who had administered it. Pearce testified that, when he had ejected the complainer from the hotel, he had seen the appellant and one of his co-accused standing outside, near the door. He described the appellant as wearing a black leather jacket, white T-shirt and jeans. He testified that he had seen the appellant administer the "roundhouse" kick to the complainer's head, which had brought him to the ground. When on the ground he had been kicked by the co-accused who had been with the appellant.

The basis of the appeal
[4] The Note of Appeal lodged by the appellant contained two grounds of appeal, each allegedly giving rise to "a miscarriage of justice", but at the outset of the hearing Mr Carroll on the appellant's behalf intimated that he was not to insist on the second of these (an alleged misdirection by the trial judge). The remaining ground (headed "Right to a fair trial") opens with the proposition that "there has been a violation of the appellant's rights in respect of paragraph 3(c), taken with paragraph 1, of Article 6 of the European Convention on Human Rights and thereby a contravention of section 6(1) of the Human Rights Act 1998 ...". A number of specific respects are then set out in which it is contended that the appellant's right to a fair trial was denied. These, broadly speaking, are concerned with alleged failures by the Lord Advocate to disclose prior to the trial material which, it is said, would have been of assistance to the defence of the appellant. Although some general contentions in respect of non-disclosure and certain particular non-disclosures in respect of the witness McKernan are set out in the Note of Appeal, Mr Carroll made it plain at the hearing that he was relying solely upon non-disclosure relevant to the evidence of Pearce. Accordingly, it was not maintained that the defence had been disadvantaged (or that there had been any other infringement of a Convention right) in respect of the identification by McKernan of the appellant as one of the assailants of the complainer. A minute was also lodged in which it was contended that the reference gave rise to a devolution issue in that "there was a failure by the Crown to follow a practice of disclosure of information and statements that would have been of material assistance in the defence of the appellant that has resulted in a miscarriage of justice by denying the appellant his right to a fair trial"; reference then is made to the Note of Appeal. Again the restriction of the scope of the complaint applies. Mr Carroll also made it plain that, in the circumstances of this case, he saw no difference between the Convention right to a fair trial and that right as provided for under the common law of Scotland.

The police enquiry
[5] At a relatively early stage in the police enquiry which followed the incident, attention as a suspect had focused upon, among others, a man called Gary Esdale (or Easdale). On 17 January 2001 an identification parade was held at Partick Police Station at which Esdale was paraded. He was at position 4. Pearce, having viewed the parade, was unable positively to identify any person there as having been involved in the incident but when asked if there was present anyone who resembled any such person he replied "4 or 6" (the latter being a stand-in). The basis of that resemblance was stated as being "shape of face". Suspicion having also centred upon the appellant, he was paraded on 2 August 2001, again at Partick Police Station. He was at position 3. Pearce, having viewed the parade, was again unable positively to identify anyone. When asked if there was anyone who resembled anyone who had been there he responded "number three". The basis of that resemblance was given as "facial features". The reports of each of these identification parades were lodged as Crown productions at the trial.

[6] In the course of the police enquiry a number of statements were taken from Pearce. The first was taken within a few hours of the incident. In it Pearce identified one of the co-accused as an assailant. He also described another male by appearance and clothing; neither description fitted the appellant. In a second statement taken later that day he is recorded as stating that the second man previously described had been involved in the fighting inside the hotel but that he (Pearce) had not at any time seen him attack the complainer. However, in addition to again identifying the co-accused as an assailant, he described the male who had delivered the blow which brought the complainer to the ground. That part of the statement reads:

"I would describe him as about 28-30 years of age, dark hair which was quite long, medium build, 5'9", wearing a black leather jacket and jeans, and a T-shirt".

As previously noted, Pearce on 17 January 2001 attended an identification parade where Esdale was paraded. Having viewed the parade and made the identifications by resemblance described above, he was interviewed by a detective sergeant. He is recorded as stating:

"... I identified the men standing at positions 4 and 6 as being similar to the persons to whom I referred to [sic] in my earlier statement to the police. Nos 4 and 6 looked very familiar and I would say that one of them was the guy that kicked Mr Sweeney on the face that night that resulted in him being knocked to the ground. I am unsure of this identification."

He was again interviewed after the identification parade on 2 August 2001, when the appellant was paraded. To a different officer he said:

"I identified the person at position number 3 as similar to the person I described to the police in my statement. This person had the same facial features as I described in my original police statement.

I cannot be sure if it was the same person as on the night who I have partially identified."

Precognition of the case
[7] The case having been reported to the procurator fiscal, it was precognosced. Pearce was seen by a precognition officer on 17 July 2001. In his precognition he is recorded as able to testify that, as he threw the complainer out, "... a guy with a leather jacket who I had seen inside earlier on but not involved in the fighting straight kicked [the complainer] on the face. ... It put [the complainer] right down on the ground."

[8] He is later recorded as describing "the guy with the leather jacket" as "being in his late twenties, dark hair which was not cropped but untidy, medium built, about 5 foot 9 inches tall wearing the black leather jacket, jeans and a white T-shirt". Precognosced about the identification parade on 17 January 2001 Pearce's prospective testimony is noted as being that during that parade:

"I was unable to positively identify anyone and when the police asked me if I could see anyone who looked like anyone responsible for the assault on [the complainer] I picked 2 people at position number 4 ... and number 6 ... The guy that was standing at position number 4, facially and hair wise looked like the guy in the leather jacket but he was much too tall and I only picked him because of his facial features. The guy at position number 6 was more like the guy in the leather jacket, more facially, hair and height wise."

An addendum to Pearce's precognition records that he was spoken to by telephone on 6 August 2001. The text of that addendum is as follows:

"I attended a 4^th Identification Parade at Partick Police Office on Thursday 2 August 2001. I picked a male [the appellant] as looking similar to the person in the leather jacket who had initially kicked the injured boy as I put him outside. The person I picked looked really familiar and looked facially the same to the guy in the leather jacket but the guy I picked had a goatee beard and the guy in the leather jacket who kicked the boy on the night did not have any facial hair. It was the goatee beard that threw me and I wasn't expecting to see anyone with any facial hair and that is why I told the police that I couldn't be positive about my identification. I think he looked more like the guy in the leather jacket than any of the other 2 I picked at the third identification parade (on 17/1/01)."

The disclosure made
[9] No proceedings were in the event taken against Esdale. The appellant and two others having been indicted, the appellant's solicitor in preparation for his defence attended at the offices of the procurator fiscal. There, in accordance with the then practice, certain precognitions were read out by the Crown precognition officer to the solicitor in a way which allowed him to take a detailed note of what the witnesses were expected to say at trial. These precognitions included that taken from Pearce. The Note of Evidence taken by the solicitor broadly reflects the content of the precognition. As to the identification parades attended by the witness, it records:

"... at ... the third one he identified Gary Easedale, whom he described as like the person in the leather jacket only he was too tall but facially he was similar but he also identified a stand-in at that parade by hair and height.

He later attended an Identification Parade for Paul McInnes and he indicated that he was similar to the man in the leather jacket. He appeared to him to be familiar. Facially he was different because he had a goatee beard which the person at the dancing hadn't had, he was therefore unsure about this identification at that time but indicated that without the beard he was certainly more like the one in the leather jacket than the person he had identified at the Gary Easedale Parade."

[10] That Note of Evidence was provided to the appellant's counsel for the purpose of conducting his defence at trial. Neither the solicitor nor counsel was provided with any of the police statements made by Pearce - although there was disclosed through the precognition and Note of Evidence the broadly accurate content of his description in his second police statement of the man who had administered the "roundhouse" kick.

The trial
[11] At the trial Pearce in examination in chief identified all three accused as persons inside the hotel on the night of the incident. He described the appellant and one of his co-accused as being outside the hotel when the complainer was ejected from it. Asked if he saw them approach the complainer, Pearce answered:

"Well, I put Mr Sweeney out and he went out into the crowd and received a kick straight to the head off one person."

The examination continued:

"Now who was the one person that kicked him to the head? - No.1" [the appellant]

He described the kick administered as a "roundhouse kick", which put the complainer "on the ground straight away". Asked about the identification parade held in August, the examination continued:

"And who did you identify at that parade? - I wasn't too sure but it was No.1."

The report of the parade having been put before him, the examination continued:

"And what were you saying to me about you think No.1 was the ... ? - I identified him but I couldn't positively identify him."

In further questioning by the Advocate depute about the report, the examination continued:

"And No.3 has got a letter next to it, A? - Yes.

So you remember that No.1 was standing at position 3? - Yes.

Right, and there were police officers there who were organising the parade, is that correct? - That is correct.

So what are you saying happened there? The police have recorded that you haven't identified anybody. What are you telling us happened there? - They asked if I could identify positively whether I recognised anybody and I said no and they said is there anybody in the line-up which you think could have been and I said No.3.

Right, and at 'how resembled' you put facial features? - Yes.

But now you are saying that No.1, you have told us in Court today that you remember him from the evening? - Yes.

And you are telling us in August of this year you actually did recognise ....? - It was because I told the police at the time he never had a goatee beard but on the line-up he had a goatee beard and I couldn't identify him positively and I told that to the police.

So at the time you couldn't identify positively at the identification parade but looking back on it now, what is your position? Did you see him at the parade? - Yes."

[12] The effect of Pearce's evidence at that stage in the trial was that, although for reasons which he gave he was unable at the parade in August positively to identify the appellant as the assailant who had administered the kick, he was now from memory positively able to identify him as that assailant.

[13] In cross-examination by the appellant's counsel the following exchange took place:

"You see, as I understand your evidence at this point, you say that you saw something happening to Mr Sweeney and you told the ladies and gentlemen of the Jury that a particular person was responsible for that. Can you just tell the ladies and gentlemen what you say you saw? - Well, I put Mr Sweeney out and he went out into the crowd and one from the crowd was standing there and kicked him as in standing to the face.

Can you describe that person? - What, on the night, what he was wearing or ...?

Yes? - Dark jacket, white T shirt and jeans. That is about it.

Dark jacket, white T shirt and jeans. Are you in a position to tell the ladies and gentlemen of the Jury if you recognised who that person was? - Yes.

And did you know that person's name on that night? - No, I did not.

Were you able to give a description of that person to the authorities that night? - Yes.

You see, you were asked about identification parades that you went to and, as I understand it, apart from the one in August of this year, you also went to another parade on the 17^th January of this year at Partick Police Office. Do you remember going to that one? - I might do. I can't remember. There was three or four I think we went to.

Yes. Well, could I ask you to have a look at copy Production No.7 please? You see, as I understand it, prior to this you had already been at a parade on the 13^th January, is that correct? - I think so yes.

And you had been ... well, you had been at two on the 13^th January. This is another one, the 17^th January, and what does it indicate the person involved in that parade is called? - That person's name that is ...?

Yes? - Gary Easdale.

Gary Easdale, and can you look through that and again find your sheet I think which is witness No.1? - Yes.

Again, that is you and that, as I say, is a parade that took place in January of this year, some seven months before the last parade you were at? - Yes.

Again you appear to have been asked if you identified anybody and you said no? - Yes.

But again you were asked if anybody resembled a person. Now, as far as resembling, who were you giving police information about the resemblance? I mean, which person was this supposed to have been? - A person that was there.

Or the person outside with the jacket on? - Could have been. I can't remember about that.

You see, as I understand it, you have already mentioned that you had seen certain people inside but your main identification, as I understand it, at this stage really related to exactly what happened when Mr Sweeney gets put out, is that correct? - Yes.

And here we have in January a Mr Easdale standing at the parade and you were asked if anybody on this parade resembles a person you referred to in your statement and does it note that you opt there for either No.4 or No.6 on the parade as resembling the person by the shape of the face? - Yes.

And No.4 I think was in fact Mr Easdale, is that correct? - By the sheet you are saying, yes.

And No.6 appears to have been a person who was a stand-in. So again on what basis were you saying that Mr Easdale resembled a person you had referred to in your statement, Mr Pearce? - I don't know. The facial features, just the shape of the face.

As whom? - Maybe the person that was outside. One of the people that were outside.

Maybe the person that was outside and by that do you mean ... you have said one of the people that were outside. Do you mean maybe the person who according to you gave Mr Sweeney a kick? - It may be one of the people that gave Mr Sweeney a kick because there was quite a few gave Mr Sweeney a kick.

And maybe the person who appears to have given this roundhouse kick as you spoke about it to Mr Sweeney on the head as he left the premises? - No, not at all.

Are you sure about that? - Not 100 per cent, no, but there was that many people there.

Exactly, Mr Pearce. You see, what I'm suggesting to you is that while you may very well have seen the person you have identified in Court today, No.1, as having been in the area of the night club at some time that night, that he was not and could never have been the person who was involved in a roundhouse kick. Do you understand that? - No, not at all.

BY THE COURT: Do you mean you don't understand it or you don't agree with it? - No, I don't understand his point he is making.

CROSS-EXAMINATION

CONTINUED BY MR DONALDSON: You have told the ladies and gentlemen of the Jury in your evidence today that you think it was No.1 who was involved with a roundhouse kick? - Correct.

Could you be wrong as far as that is concerned? - I could be but to my belief it was the person.

But you could be wrong? - I could be wrong.

You see, it is my information that No.1 certainly had been in the area of the night club but by the time of this particular incident he had in fact left and he by this time had been picked up by a friend and was away from the scene completely. Could that be right? - No.

You have said the person you think was the person with the roundhouse kick was wearing a dark jacket, a white shirt and dark trousers? - No, I never said dark trousers. I said jeans.

Jeans, sorry? - Yes.

If I suggest to you that the ladies and gentlemen of the Jury may hear evidence that No.1 that night was not wearing a jacket at all but was in fact wearing a blue shirt, would that in any way assist you in telling me whether you are right or wrong in identifying No.1? - No, not at all.

But do we understand in any event that when it came to August of 2001 and No.1 was on parade, that you were not too sure that he was the person who had been outside? - Only because at the time he had longer hair and a goatee beard.

BY THE COURT: Which parade was that, I'm sorry? It is my fault? - The one in August.

MR DONALDSON: August, 2001, my lord.

CROSS-EXAMINATION

CONTINUED BY MR DONALDSON: Just so that we can be clear about this. Whoever it was that gave this roundhouse kick according to you had a dark jacket, a white shirt and jeans, is that correct? - Yes.

Did you see that person, whoever that was, do anything else other than that? - No.

And do we take it so that the ladies and gentlemen of the Jury understand because you have now been able to put names to people that you had seen within the area of the night club that night that obviously there has been a lot of talk between yourself and the other stewards about this case? - No, not really because I haven't really seen the other stewards bar one.

BY THE COURT: When did you cease the job as a bouncer? I'm sorry, I beg your pardon, a steward? - Not long after that incident.

CROSS-EXAMINATION

CONTINUED BY MR DONALDSON: Do you remember giving details of a description to police very shortly after this of the person who had been involved in the roundhouse kick? Do you remember giving a description? - No, not at all.

And as far as the jacket is concerned, do you remember even indicating exactly what type of jacket it was? - I don't know. It might have been a leather jacket. It was a jacket of some kind, I'm sorry.

If I suggest to you that in a statement to the police at that time you described a man as being in a leather jacket, late twenties, with dark untidy hair, about 5 feet 9 inches tall, wearing black jeans, white T shirt and black leather jacket, does that description ring a bell? It might be. I don't know. I knew it was a black jacket and jeans but ...".

[14] In re-examination the Advocate depute returned to the witness's identification of the appellant as the assailant who had administered the kick. The following exchange took place:

"Mr Pearce, when I was asking you questions and in your evidence to the ladies and gentlemen of the Jury you pointed to No.1? - Yes.

A man called Paul and you said that he gave the roundhouse kick? - Yes.

Now, are you telling us that is what you saw? - That is what I saw, yes.

Did you identify the person who gave the roundhouse kick on what they were wearing? Was the clothing important? - No, it was mainly the roundhouse kick that threw me. It wasn't so much he was wearing. It was how could he do that to somebody, as in stand on somebody, kick him in the face standing so that quite threw me.

So was his clothing distinctive that night? Anything unusual about dark jacket, white T shirt, jeans? - No, not at all.

Would there be a lot of people wearing similar clothing to that? - Not really with a T shirt because with the date, December.

But when you point him out today to us wearing a suit, shirt and tie, are you saying to us that is the person you saw doing that? - Yes.

And how do you recognise him? What do you use to recognise him by? - His face, his build, the way his hair is just now.

At the identification parade, you were asked about going to a parade on the 19^th January and pointing out somebody called Gary Easdale? - Right.

At each of the identification parades you went to were you looking for people that were in the group of eight or ten people that kicked Brian Sweeney? - You are trying to catch what you can.

So each time you went and you were shown a line-up by the police you were looking for people ...? - That would have been there.

That were there? - Yes.

Were you always looking for the man that had done the roundhouse kick? - I was looking for the person that kicked or as in being there at the time.

So each line-up you would look at you would be thinking is it somebody who had been there that night and been hitting Mr Sweeney and is it the man who did the roundhouse kick? - Yes.

And did you see the man who did the roundhouse kick at one of the parades? - Just the last one but I couldn't positively identify him.

But you have told us that the goatee beard caused you ...? - It threw me, yes, and I said that to the police at the time.

Mr Pearce, you were asked questions by the counsel representing the first man there, Mr McInnes? - Yes.

And you said you could be wrong. Now, could you tell me what is your margin for error? What is the room for error here? Those were your words. You said I could be wrong? - I could be wrong about what?

That it was No.1 who gave the roundhouse kick. When you gave that answer, I could be wrong, what were you meaning? What is your room for error? Do you think you are wrong? - No, I think I am quite right.

Well, when you said I could be wrong, why were you saying that do you think? - Well, because ... I don't, whatever ...

Counsel? - What counsel was saying, that he was away by that time. I mean, I am sure ...

But given that bit of information that he was away, taking that into account? - As far as I am led to remember, it was him that gave him the kick and that was it. I never seen him like jump on his head or anything else.

So what you are saying, just so that the ladies and gentlemen of the Jury are clear about your evidence, your recollection, your position, is that it was No.1 that gave the kick? - Yes.

And you saw him there? - Yes."

Submissions of parties
[15] In developing his submissions Mr Carroll emphasised that counsel conducting the appellant's defence had not had available to him, as documents, the police statements made by Pearce. In his statement on exiting the Esdale parade in January he had described Esdale and a stand-in as looking very familiar and said "I would say that one of them was the guy that kicked Mr Sweeney on the face that night that resulted in him being knocked to the ground" - though admittedly he had added that he was unsure of that identification. He did, however, positively speak of the assailant who had administered the initial kick and in so doing made a false identification. In his exit statement after the parade on which the appellant had been paraded he had by contrast not identified the appellant as doing anything in particular, nor had he recanted the identification he had made at the Esdale parade. The explanation later given on precognition (and reflected in the note taken by the solicitor) for his uncertainty at that latter parade, viz. the appellant's facial hair at that time, had not been given in his exit statement. Had the appellant's counsel at trial had available to him the exit statements, he would have been able to put to Pearce the precise words recorded in these statements with a view to undermining his more confident identification at trial of the appellant as the person who administered the initial kick. He would also have had the forensic advantage of holding in his hand physical evidence of prior inconsistent statements. The issue was whether, the police statements not having been made available to the defence prior to or at the trial, the appellant had been denied a fair trial. The proper question was not whether disclosure of that material would have made a difference to the outcome of the trial, but whether it could have made a difference. Reference was made to Hogg v Clark 1959 J.C. 7, Holland v HM Advocate 2005 S.C. (P.C.) 3, especially per Lord Rodger of Earlsferry at para.[82], Kidd v HM Advocate 2005 S.C.C.R. 2000 especially at para.23 and McClymont v HM Advocate [2006] HCJAC 47. The absence of the police statements could not be regarded as a de minimis consideration. Although a devolution minute had been lodged, it did not add anything to the substance of the appeal.

[16] The Advocate depute submitted that, although at the time of this prosecution it was not routine to make police statements available to the defence (and Pearce's police statements as such had not been made available), the Crown had nonetheless performed its duty of disclosure. This had been done by reading to the appellant's solicitor the terms of Pearce's precognition in circumstances in which the solicitor had been able to take (and had taken) full and accurate notes. While there had been a difference between what Pearce had been able reliably to say at the early stages of the enquiry as to the identification of the initial assailant and his apparently confident identification at the trial of the appellant as that assailant, that was a development to be explained by his having at a later stage had the opportunity of seeing the appellant, first at the August identification parade (where the absence of a positive identification of the appellant could be explained by the presence then of facial hair) and later at the trial (when, as at the time of the incident, the appellant was clean-shaven). Nothing which emerged in evidence was, given the Note of Evidence taken by the solicitor, a surprise to the defence. Counsel, it was suggested, had taken a tactical decision to concentrate, in cross-examination and in his address to the jury, on other aspects of the defence (such as the special defence of alibi and contradictions among the Crown witnesses, including what clothing the initial assailant had been wearing) rather than on identification by appearance. The defence solicitor had had a precognition from DS Kennedy, the officer who had taken Pearce's exit statement after the Esdale parade, and was aware that Pearce's identifications may have been different at different times; if that exit statement had been regarded as important by the defence, DS Kennedy, who was on the Crown list of witnesses, could have been led in evidence as to its contents. If thought appropriate, an adjournment could have been sought to allow for examination of the exit statement itself (McLeod v HM Advocate (No.2) 1998 JC 67, per Lord Justice General Rodger at page 80). The test apparently adopted (in relation to outstanding charges) by Lord Rodger of Earlsferry in Holland v HM Advocate at para.[82] (relying upon Hogg v Clark) was inappropriate; the slightest consideration would on its application lead to the quashing of the jury's verdict. It was not that adopted in Sinclair v HM Advocate 2005 SC (PC) 28 - where the issue was one of disclosure of prior statements; there the test was of prejudice to the defence (see especially per Lord Hope of Craighead at para.[35] and Lord Rodger at para.[50]). The test of what would plainly have been of material assistance to the defence and what gave rise to real prejudice to it had been correctly applied in relation to prior police statements in Kelly v HM Advocate 2006 SCCR 9 at para.[33]. Reference was also made to McDonald v HM Advocate [2008] SCCR 154 and Fraser v HM Advocate [2008] SCCR 407. Remedy by way of adjournment had also been recognised in HM Advocate v Higgins 2006 SCCR 305 at para.[16]. Reference was also made to Leckie v HM Advocate 2002 S.C.C.R 493 at para.[5].

Discussion
[17] Although a devolution minute has been lodged in this appeal it is not suggested in it that the mere circumstance that the Crown had proceeded to prosecute the appellant without disclosing Pearce's police statements (and in particular that on exiting from the Esdale parade) disabled it from seeking a conviction and that accordingly the conviction obtained must be quashed. The contention advanced in the minute is that disclosure would have been of material assistance in the defence of the appellant; and a cross-reference is made to the Note of Appeal where a similar contention is advanced. It is accordingly unnecessary for us to make in this case any comment on the observations made by Lord Hope at para.[37] of Sinclair as to the effect of a breach of an appellant's Convention right. We note, however, that these observations were made in a context of a case where the terms of the witness's prior statement were such that disclosure of it (it being inconsistent with her testimony in court) would plainly have been of material assistance to the defence. Further, in the same case Lord Rodger at para.[48] observed that, if the witness had at the trial adhered to her precognition and to the terms of her prior police statement, "the mere fact that the defence had not been given a copy of that statement would not have made the appellant's trial as a whole unfair in terms of Article 6". Accordingly, failure by the Crown to disclose a prior statement of a witness does not of itself give rise to an infringement of an accused's right to a fair trial. It is the significance of that non-disclosure in the context of the actual trial which is of importance to whether the right is infringed.

[18] Nevertheless, the Crown has, according to the obiter observation of Lord Rodger at para.[49], an obligation to disclose to the defence (all) the police statements of all the witnesses who are to be led at the trial. "This helps to ensure that there is equality of arms between the two sides." It so helps because disclosure of such statements may, depending on how the trial develops, be of value to the defence for the purposes of cross-examination or otherwise, the prosecutor being assumed to have access, or the means of access, to them for the purposes of the presentation of his case. When such disclosure is not made, it will be necessary to assess, in the circumstances of the particular trial, whether this has resulted in the trial as a whole being unfair.

[19] There will be circumstances in which it will be clear that no such unfairness has arisen. These will include circumstances in which the witness speaks consistently with his or her prior police statements and also circumstances in which any inconsistency is clearly immaterial to the crucial issues at the trial. Where any inconsistency may arguably have been material, it will be necessary to adopt and apply a test for judging whether there has been unfairness.

[20] The critical issue, in our view, is whether the principle of equality of arms is breached (see Sinclair, per Lord Hope at para.[34] and Lord Rodger at para.[49]). It will be so breached if access to the statement in question would have been of material assistance to the defence (as it plainly would have been in Sinclair), so that denial of access prejudiced that defence (para.[35]). It might also be breached if, having regard to the realities of the trial and viewing the matter realistically, the denial of access might have prejudiced the defence. Whether there has been or may have been such prejudice will be a matter for assessment by the appeal court in the circumstances of each case. Such an assessment will not always be a straightforward or easy task. But it will not be an unfamiliar one. This appeal court regularly has to assess whether procedural failures at trial have resulted in a miscarriage of justice. It is not, however, in our view, entitled in effect to avoid that task by adopting a test which depends simply on whether the denial of access "might not possibly have effected" the outcome. Such a test was adopted in Hogg v Clark (per Lord Justice General Clyde at page 10) where there was wrongful exclusion by the court of admissible evidence (based upon prior authority also concerned with the wrongful exclusion of evidence in summary proceedings). Lord Sorn in Hogg v Clark (at pages 11-12) took a less absolute approach, concerning himself with whether the exclusion of the evidence had prejudiced or might have prejudiced the defence. Lord Justice General Clyde's test was adopted (in the context of the non-disclosure of outstanding charges) by Lord Rodger in Holland at para.[82] - though it is not apparent that what was the appropriate test was a matter of argument before the Judicial Committee and Lord Rodger's test is not repeated in Sinclair (which was concerned with undisclosed statements). In the latter case Lord Rodger was in a position to conclude that the appellant's solicitor advocate "would have been in a position to cross-examine Ms Ritchie effectively and the appellant's trial as a whole would have been fair" (para.[50]). Lord Rodger's test has been used (or abused) in argument in this jurisdiction to suggest that the threshold for reversing the verdict of a jury in non-disclosure and analogous cases is low. This may be a misreading of Lord Rodger's words. In the context of determining whether there has been a miscarriage of justice (or, we venture to think, an unfair trial) a robust test is required. The test of a real risk of prejudice to the defence was, rightly in our view, adopted in Kelly v HM Advocate at para.[33].

[21] Applying that test, was the present appellant denied a fair trial? More particularly, was a fair trial denied to him because his counsel did not have access to the statement which the police had taken from Pearce immediately after he had viewed the parade on 17 January 2001? We reject the Advocate depute's contention that there had been no such denial because the defence had the knowledge (or at least the means of knowledge) that Pearce had given such a statement to DS Kennedy at that time and could have asked for a copy of it and, if necessary, sought an adjournment to consider its terms. That contention appears to be close to the error which the Privy Council detected in the judgment of the High Court in Sinclair (see paras.[14]-[15] and [28]). There is no duty on the defence to ask for witness statements; it is the duty of the Crown to disclose them.

[22] The Crown had included in its list of productions attached to the indictment various identification parade reports, including that of the parade held on 17 January 2001. These reports were available for use at the trial. Perusal of the report of 17 January reveals that Pearce had failed to identify definitively any person on that parade but had responded "4 or 6" to a question as to whether there was any relevant resemblance. (The precise words of the questions put to the witness are not recorded). The statement taken from him immediately afterwards by DS Kennedy reiterates that he had picked out the men at positions 4 and 6 as being similar and adds:

"Nos.4 and 6 looked very familiar and I would say that one of them was the guy that kicked Mr Sweeney on the face that night that resulted in him being knocked to the ground. I am unsure of this identification."

So far as appears, the second part of the first sentence (the reference to the person who by kicking knocked the complainer to the ground) was information additional to that disclosed by the identification parade itself, but the critical issue is whether non-disclosure of that information presented a real risk of prejudice to the conduct of the defence. While the statement tended towards the identification of a person other than the appellant as the initial assailant (a role attributed by the Crown to the appellant at the trial), the statement itself qualified that identification by adding that the witness was unsure of it. It also carried an inherent unreliability in the assertion that "Nos.4 and 6 looked very familiar"; even if Esdale was familiar as having been among those seen by the witness on the night of the incident, there is no reason to suppose that the stand-in was familiar to him from that or any other context. Pearce's picking out of the appellant at the parade on 2 August was no more positive than his identification on 17 January. In the course of the trial the defence were able, on the basis of the identification reports, to emphasise the discrepancies in Pearce's identification evidence - as well as relying upon other evidence to discredit him. Had the exit statement of 17 January been available to put to Pearce when being cross-examined in relation to who administered the "roundhouse" kick, that would in its qualified form hardly have constituted a coup de grâce. The statement was not inconsistent with his testimony. It did not positively identify a particular individual other than the appellant as the person who had administered that kick. It at best tentatively suggested one of two other people. That Pearce had at that time pointed out two persons one of whom might (in some way) have been involved in the assault upon the complainer was known to the defence from the parade reports. Given the other material available to it and the knowledge (available in the Note of Evidence) that Pearce, if pressed on his identification parade performances, was likely to bring out a potentially damning explanation (change of facial appearance) for his failure to pick out the appellant on 2 August, the defence wisely and no doubt tactically did not seek to press Pearce more than was necessary in relation to the parades and their aftermaths. In these circumstances we are not persuaded that the failure by the Crown to disclose Pearce's exit statement on 17 January gave rise to his being denied a fair trial. Nor, in so far as the question may be different, are we for the same reasons persuaded that there has been a miscarriage of justice on the grounds advanced to us.

[23] Two other matters should be noticed. First, Mr Carroll attached significance to the circumstance that in his exit statement on 2 August Pearce had not "retracted" his identifications on 17 January. But the officers who took the statements on these dates were different and there is no reason to suppose that the officer on the second occasion had cause to question Pearce other than on his performance at the parade on that occasion. Secondly, Mr Carroll sought to rely on the circumstance that in his second police statement (taken on the evening of 16 December 2000) it was recorded that Pearce had been shown photographs by the police but had been unable to recognise anyone in them. Had these statements been disclosed, it might have been possible, it was suggested, prior to the trial for the defence to ascertain whether a photograph of the appellant had been among them. If it had (and Pearce had failed to recognise the appellant), this would have been material to his defence. But there is nothing in the grounds of appeal to found any contention along these lines. The appellant's conviction has been investigated by the Commission which had access to this police statement; there is no suggestion in its statement of reasons that any miscarriage of justice might have taken place in this regard. The Advocate depute, although having no prior notice of this line, was able on the second day of the hearing to put before us certain information from the Crown papers. While that information was not such as to exclude the possibility that a board containing a photograph of the appellant among those of others was shown to Pearce and that he had failed to recognise anyone in it (in which event the board would in ordinary circumstances have been destroyed), no support is found there for there having been any miscarriage of justice. In these circumstances this contention must be rejected.

Disposal
[24] In the whole circumstances this appeal, for the reasons which we have given, must be refused.