Act: K. Stewart A.D.; Crown Agent

Alt: C. Mitchell; Hamilton Burns, Glasgow (First Respondent)

Alt: N. McCluskey; Peacock Johnston, Glasgow (Second Respondent)

8 February 2008

This appeal arises out of charges against the two accused arising out of an Orange Walk on 13 August 2005. The detailed nature of the charges, as will be become apparent, are not material to this appeal suffice to say that they allege crimes of violence aggravated by religious prejudice. No distinction needs to be drawn between the positions of either respondent and the cases can be treated together.

Early in the process of prosecution, agents on behalf of the respondents made an application to the Procurator Fiscal in respect of a request for the names of various police officers involved in the incident, not least those arresting the respondents, be disclosed to them. The attitude of the Procurator Fiscal from day one of this event was wholly reprehensible. Indeed it was described as outrageous and we would not demur to that. Despite numerous applications the Procurator Fiscal declined for various reasons to make the information available which was entirely material to the case in respect of each then accused. The nature of the reasons, or lack of them, again does not concern this particular appeal suffice to say that no justification that would be relevant to withholding of the information, was ever offered.

Finally on 31 October 2006 at an intermediate diet the respondents lodged Devolution Minutes for which they requested a diet of debate which duly occurred on 15 November 2006. The Court, having heard argument, sustained the Minutes and dismissed the case against both respondents. This appeal is taken by the Crown against that decision.

At the time of the hearing before the Sheriff the conduct of the Crown was not disputed nor, it would appear, particularly defended. However no offer was made at that hearing to comply with the requests that were being made. The Sheriff, quite properly, did not condone or even support the attitude as taken up by the Crown by the Procurator Fiscal and the police, and in this stark situation sustained the Minutes, saying simply that he considered that the complaints of the defence of unreasonable conduct amounting to non-disclosure in terms of the rights of an accused person to obtain such material from the Crown relevant to their case. This left him with no alternative to sustain the Minute. His interlocutor of even date dismissed the case against both accused, now respondents.

Before us the Advocate Depute, quite properly, made no attempt to support the attitude that had been taken by the Crown authorities throughout the case to this point. Nor did he criticise what the Sheriff had done in the context of what had happened before him. However, he immediately before us conceded the error, putting it mildly, and offered to make available the names of at least ten witnesses amounting to the relevant police officers' identities which was being sought by the defence. We should say immediately also that certain questions arose about the identity of civilian witnesses but that has been postponed in the sense it was not seriously debated before us.

However, the position of the Advocate Depute was that, notwithstanding the attitude of the Crown, which he was not supporting, nor the position of the Sheriff in which he found himself, the defence in both respects should have sought a specification of documents to recover the information they sought prior to the lodging of a Devolution Minute. If the Crown had maintained the attitude at that time, the matters could have been dealt with by the Court thus removing the decision from the Crown authorities. In either respect the Devolution Minutes were therefore unnecessary. The case should be restored to the rails, by this Court overturning the Sheriff in respect of the Devolution Minutes and remitting back to proceed as accords if necessary by a specification of documents to be prepared and lodged on behalf of each respondent, to obtain a Commission and Diligence thereanent.

Before turning to the arguments advanced on behalf of the respondents, it is important to recognise that the law, which has been in a state of some confusion as regards disclosure, has been, to some extent, stabilised by the recent decision in Sinclair 2005 SCCR 251 which, most importantly, restores the importance of the case of McLeod v HM Advocate 1999 SCCR 721. Following that, there is a clear Opinion delivered by the Lord Justice General, as yet unreported, in HM Advocate v McDonald where his Lordship, on behalf of the Court, summarises the history of the issue of disclosure and again firmly reinstates the principles of McLeod. These are essentially that the defence is entitled in any criminal prosecution to disclosure by the Crown of all material relevant to the defence being advanced or supporting the innocence of the accused unless the Crown can demonstrate a good reason for not doing so.

However, in so far as Sinclair suggested, perhaps obliquely, that the defence need make no more than make a blanket demand on the Crown, it is now reaffirmed by McDonald that the position of the defence is such that if they are not getting a satisfactory response to informal applications made for disclosure they should resort to the process of Commission and Diligence which remains available and has by no means been usurped by subsequent legal process, not least by Sinclair.

Faced with this position, both counsel for the respondents adopted a similar position. They maintained that the attitude of the Crown in response to the legitimate demands being made for disclosure by the defence, were so outrageous that it offended Section 57(2) of the Scotland Act in respect that the Lord Advocate had acted in a way incompatible with the rights of the Convention available to an accused person, not least in terms of Article 6. Accordingly any concession or offer being made at this stage by the Crown before us, it was submitted, was too late. The case was so hopelessly contaminated by the attitude that had previously been adopted by the Crown that it could not proceed. In the interests, it was submitted, determined that the decision of the Sheriff should stand.

It has to be noted at once that this Court cannot condone the attitude of the Crown in this particular case up to the hearing before us, where the Advocate Depute acted very properly on behalf of the Lord Advocate. Whatever the motivation of the Crown authorities at the lower level, we sincerely express the hope that such will never happen again in any case where relevant demands for legitimate information are being made.

We are not concerned to determine the extent to which the request was being made for the relevant information was material save that obviously the names of police officers involved in the incidents surrounding the charges against the respondents must be a legitimate interest of the defence seeking to investigate the whole matter. To that extent therefore in terms of McLeod as reinstated, the requests being made by the defence were for legitimate material.

We have considerable sympathy with the argument that the actions of the Crown were such that the whole case became contaminated by the alleged breach of Article 6 but in fact we consider that at the time of the Crown's conduct through the Procurator Fiscal's Office, Article 6 had not in fact been breached to a determinative factor.

It is important that it should be appreciated in the view of this Court that Article 6 in its main content is concerned with a fair trial and such cannot be determined as an issue except in the most exceptional and blatant cases, of which this is not one, until after a trial has taken place. It follows that if the respondents in this case had gone to trial against the background of the Crown's attitude, which we have discussed, with no further action on its behalf, there can be no doubt that if the respondent had been convicted they would have had an almost unanswerable position in relation to breach of Article 6.

However, while what happens during the course of a process leading to a trial may ultimately be relevant to the determination of Article 6 after the trial, equally if it is capable of being cured, we consider thereafter the only issue at the intermediate stage is whether there has been oppression at common law since the time to determine the issue of Article 6 has not yet been reached.

In this respect, it seems to us the test in relation to oppression at common law and breach of Article 6 after trial raises precisely the same issues, namely have the accused persons been prejudiced by the action of the prosecuting authority.

In our opinion, in this case they have not, in as much that the option of a specification of documents is still open and to date, since no trial has taken place, the delay in obtaining the necessary information as regards identities of the police witnesses does not amount to prejudice per se if such is made available either voluntarily or through a specification of documents granted by the Court on a Commission and Diligence. That is not to say that in due course the length of time this process has taken and the way the Crown has behaved may not bear strongly on whether or not after trial, and assuming conviction, a strong argument under Article 6 in relation to delay could not be made. However, that is premature at the stage of the case before us.

In these circumstances, without criticising the Sheriff at all, having regard to the position in which he found himself, we are compelled to allow this appeal on the basis that public interest requires, if at all possible, persons charged with crimes to be brought to trial and in our opinion, for the reasons given, nothing yet has happened in this case which has prejudiced the defence position in that context. Whatever happens next depends to some extent on the Crown.

In these circumstances and for these reasons this appeal is allowed and the case will be remitted back to the Sheriff to proceed as accords. It will be for the Crown to renew their offer if they see fit or alternatively for the defence if not satisfied with the duration to seek a commission and diligence to obtain the material to which it seems to us they are legitimately entitled.