First Appellant: Burns QC, G J Anderson; John Pryde & Co (for Hodson & Co, Forfar)

Second Appellant: M Stewart QC, Comiskey; Drummond Miller (for Lawson Coull & Duncan, Dundee)

Respondent: Mackay, Advocate Depute; Crown Agent

20 October 2011

Introduction

[1] In these parallel appeals under section 74 of the Criminal Procedure (Scotland) Act 1995, the appellants challenge the written determination of a preliminary issue dating back to 17 May 2011. In that determination, the preliminary hearing judge refused to grant any of the pre-trial remedies for which the appellants contended, namely (i) a finding that the disclosure process followed by the Crown in a complex VAT fraud prosecution was flawed and inadequate to meet the requirements of article 6 of the European Convention on Human Rights; (ii) an order on the Crown to undertake wide-ranging further investigations which were said to be necessary; and, in the alternative, (iii) dismissal of the whole indictment. In reaching his conclusions the judge had, it was said, erred in law, and in that context had even gone so far as to doubt the relevance of the investigations proposed.

[2] The charges against the appellants are complex and run to several pages. Briefly summarised, they allege concern, as knowing participants, in so-called "MTIC" (missing trader intra community) VAT frauds and related financial irregularities. Typically, such frauds involve sequential "chains" of transactions commencing with the acquisition, in another EU country, of physically small but high-value commodities such as mobile phones or computer components. Once within the UK, VAT must by law be collected and accounted for on each onward disposal, and in essence such frauds consist in the "disappearance" of companies (and their principals) without accounting for VAT received. Such "disappearance" may inter alia be facilitated by the channelling of relevant invoices and payments through third parties. The sums involved can be very high indeed, and the UK Treasury are said to lose billions of pounds every year in this way.

[3] As we understand it, the appellants' defence at trial will be along the lines that each was, to borrow the terminology used by the Court of Appeal in R v Sandhu 2006 EWCA Crim 606 (at para 30), "...an innocent dupe brought into these transactions by (highly skilled criminal third parties) able to mislead (him or her) as to the true nature of what was going on". According to senior counsel, a certain amount of information was already available to support the appellants' position, but in order to bolster their credibility and reliability before the jury it was important to ascertain whether certain further categories of information might still be discoverable in the hands of HM Revenue & Customs as the investigating authority. The Crown's response, however, was to the effect that all appropriate investigations had already been carried out; that all disclosable information of which the Crown was aware had already been disclosed; and that they were not prepared to embark on extensive further investigations where their relevance to the appellants' defence was, at best, unclear.

The competing contentions

[4] Before us, the focus of senior counsel's argument was on three distinct categories of material. First, the appellants claimed a real and legitimate interest in information as to links (by way of directors, shareholders, signatories of bank accounts and so on) among particular EU companies listed at para 2 of a defence Disclosure Document which had been submitted to the Crown in January of this year. Some of these companies were known to be involved in MTIC activities, and further details of their inter-relationships, and of any apparent suspicion directed against them or other participants in the deal chains libelled in the indictment, might prove helpful to the appellants' defence. Second, and with the same general purpose in mind, information was sought as to links between, on the one hand, certain freight forwarders named in the Disclosure Document and, on the other, companies and individuals in the libelled deal chains. And third, information was sought on the activities of individuals listed at para 3 of the Disclosure Document, and especially on the question whether any of them were known informants or had been offered any immunity from prosecution.

[5] The potential relevance of such materials had, it was said, been affirmed by the Court of Appeal in Sandhu. Admittedly the issue there arose post-trial, and in the context of an appeal against conviction. The case also concerned information which, ex post facto, was known to exist, and the question was whether its non-disclosure at the trial stage rendered the conviction unsafe. Nevertheless, the decision was instructive in identifying (at para 28 in particular), the sort of information which, in a case of this kind, should be regarded as relevant and disclosable. By contrast, the Court of Appeal in R v Matthews 2010 EWCA Crim 3202 had (apparently without sight of Sandhu) gone too far in holding such information to be peripheral and irrelevant on the basis that the central issue in any such prosecution had to be the state of mind of the particular defendant.

[6] According to senior counsel, the Crown were at fault in declining to undertake any further inquiries to see if such materials existed. Their awareness of the appellants' intended defence obliged them to keep matters under constant review, and where the appellants' legitimate requirements had been spelled out in the Disclosure Document any proper system of disclosure must necessarily involve appropriate investigations in response. The appellants currently had no intention of applying at common law for commission and diligence, or for a production order, since the Crown's spontaneous disclosure obligation was of wider scope and required no detailed justification. The appellants were thus entitled to recover from the Crown all disclosable information, and that would here necessitate "...the undertaking of necessary further investigations in the form set out in the Disclosure Document".

[7] For the Crown in reply, the learned Advocate Depute stressed that the nature and extent of the Crown's disclosure obligation pursuant to article 6 of the Convention had been authoritatively settled by the recent decision of the Supreme Court in McDonald v HM Advocate 2010 JC PC 1. The issue there had again arisen on appeal, and in the context of a specification of documents for which the defence had applied at that stage, but the parameters of the disclosure obligation had been specifically discussed in the course of their Lordships' judgments. In particular Lord Rodger of Earlsferry, with whose approach all members of the Court agreed, had considered whether the Crown were under a duty "...to comb the material in its possession or in the possession of the police or other investigatory authority to see whether, by chance, there was any statement or other material which would weaken the prosecution case or strengthen the defence case." At para 59, the existence of such a duty was dismissed on the basis that it would be time-consuming and involve an enormous expenditure of effort and resources, and at para 60 his Lordship went on as follows:

"There is a more fundamental objection to any such supposed obligation, however. The Crown's duty of disclosure is not its principal duty. The Crown's job is to prosecute, not to defend: defending is the job of the accused's representatives...Of course, a prosecutor must always act as a 'minister of justice' and this means that, when carrying out his duty of prosecuting, the prosecutor must do his best to ensure that the accused receives a fair trial. So the prosecutor must be alert to examine and re-examine the Crown case in the light of known and emerging lines of defence, and must disclose any disclosable material of which he is aware or becomes aware while carrying out that duty...By contrast, a duty on the prosecutor to set about investigating all the possible lines of defence to the case would be quite different and would go much further - really into defence territory. Yet that is, essentially, what would be involved in any duty on the Crown spontaneously to comb through all the material in its possession, on the look-out for anything which might assist the defence and so should be disclosed. In my view, the representatives of the Crown are under no such duty. Rather, they must disclose disclosable material of which they become aware or to which their attention is drawn, while diligently carrying out their core duties of preparing and prosecuting the case...."

At paras 61 - 68, moreover, Lord Rodger had gone on to spell out the ordinary remedies which would be available to any accused person fearing that the Crown's disclosure obligation had not been fully performed. One such remedy at the pre-trial stage was to apply for a relevant order for the production of materials having a bearing on the issues of fact to be explored before the jury, and the potential recovery by such means might well be wider in scope than the duty of spontaneous disclosure which arose by virtue of article 6.

[8] Against that background, the Crown's position could be summarised in this way:

(i) All information deemed disclosable had already been disclosed;

(ii) Along the lines discussed by the Court of Appeal in Matthews, the lines of inquiry indicated in the defence Disclosure Document were deemed irrelevant.

(iii) As affirmed by the Supreme Court in McDonald, the Crown's obligation was one of disclosure of relevant material of which they were or became aware in the course of discharging their primary prosecuting function. There was no duty on the Crown to embark on investigations, either on their own account or a fortiori as dictated by the defence.

(iv) These appeals (and the underlying preliminary issue) were thus misconceived. If the appellants were dissatisfied with the extent of the disclosures so far, their proper course would be to seek a commission and diligence for the production of particular documents or categories of documents.

(v) In any such application, the appellants would rightly bear the burden of satisfying the court of the relevance of the information sought, and in addition it was appropriate that havers such as HMRC would be entitled to appear and contest the scope of the application. Public interest objections might, for example, apply to the disclosure of informants' identities, or of the details of ongoing criminal investigations.

(vi) The appeals should therefore be refused.

Discussion

[9] When this case came before the preliminary hearing judge, the appellants' contentions were rather wider than they are now. At that stage it was argued at some length that the Crown's disclosure obligation fell to be measured by the scope of voluntary protocols and practices, especially those adopted for MTIC frauds south of the border. The appellants also maintained that the Crown could not allow "disclosure issues" to be considered or determined by any third party such as a Disclosure Officer in the employment of HMRC. Before us, however, these lines of argument were no longer pursued, and the discussion centred on the disclosability of the categories of information listed in the defence Disclosure Document as summarised above.

[10] Having taken time to consider the parties' competing submissions we are satisfied, on three main grounds, that these appeals must be refused. First, the Supreme Court's decision in McDonald makes it quite clear, in our view, that for article 6 purposes the Crown's spontaneous duty of disclosure extends only to material of which they are, or become, aware while discharging their primary prosecuting function. It does not include the carrying out of potentially extensive and time-consuming investigations as dictated by the defence, and in this respect it seems to us that the Crown's opposition to the appeals was appropriate and well-founded. It is simply not open to the defence to produce a "wish list" of inquiries which they would like to see carried out, and then to insist that the prosecution be delayed and disrupted - perhaps to no useful purpose - while such inquiries proceed.

[11] Second, this court is in no position to judge whether, at the present time, the Crown's duty of disclosure has been adequately complied with or not. For all we know, there may be no further disclosable material in the hands of the Crown or of the investigating authority. A fortiori it cannot at this stage be said that, by the time of the trial, the duty of disclosure will not have been fully met. As a rule, and in the absence of highly exceptional circumstances, the question whether there has been a breach of the "fair trial" guarantee contained within article 6 can only be judged in retrospect once a trial has taken place. There is thus in our view no possible basis on which the appellants' alternative claim to dismissal of the indictment could be sustained, nor even any basis on which a finding of inadequate disclosure, or an order for specific performance, could properly be made. As we see it, the Crown's continuing duty of disclosure is one to be performed spontaneously as circumstances develop from time to time, and neither the manner nor the timing of such performance is normally to be directed or enforced by any order of the court.

[12] Third, it seems to us that the order sought is so vague and lacking in specification as to leave the Crown in an impossible position. In the end senior counsel's objective appeared to be to secure disclosure of any disclosable information within suggested categories, and as such it differed little from the unspecified call for all disclosable material which was disapproved in McDonald. If the appellants are concerned that the Crown have not sufficiently complied with their duty of disclosure so far, then in our view their proper course would be to prepare and lodge a detailed specification of the documents which they would wish to recover, and thereafter to satisfy the court of the relevance and materiality of what they seek. One advantage of proceeding in this way, as the Advocate Depute pointed out, is that HMRC as an alleged haver would have the opportunity to be heard in opposition to the scope of any order. They might appear to be the most obvious contradictor for such purposes, for example with regard to any public interest issues concerning informants or ongoing investigations. Such a procedure would also have the advantage of encouraging the appellants to identify, by way of justification, a clear connection between their proposed line of defence and a search for documents which might be extremely expensive and time-consuming. Neither the Crown, nor HMRC as an investigating authority, should in our view be put to significant trouble and expense without good and sufficient reason being demonstrated to the court.

[13] In disposing of these appeals, we find it unnecessary to resolve the issue of relevancy which was raised in the course of the hearing. Like the preliminary hearing judge, we have no clear impression as to how far the suggested categories of disclosable material (if found to exist) would be likely to assist the proposed defence or harm the prosecution case. And since every case of this kind must depend on its own particular facts, we doubt whether any general conclusion can be drawn, one way or the other, from the apparently inconsistent decisions of the Court of Appeal in Sandhu and Matthews. At this stage, therefore, we would not feel able to rule either for or against the appellants on relevancy grounds. Sandhu and Matthews were, moreover, decisions reached on appeal following conviction, and in Sandhu the undisclosed information was by that stage known to have been in existence by the time the trial took place. To our mind both cases can arguably be distinguished for present purposes, since the issue here arises at the pre-trial stage and in circumstances where the existence of any further disclosable material can only be a matter of conjecture.

Disposal

[14] For all of the foregoing reasons, we shall affirm the decision of the preliminary hearing judge and refuse the appeals.