Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 34

HCA/2015/2336/XC and HCA/2015/2337/XC

Lord Justice Clerk

Lady Smith

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL

under section 74(1) of the Criminal Procedure (Scotland) Act 1995

by

HER MAJESTY’S ADVOCATE

Appellant;

against

(FIRST) AM and (SECOND) JM

Respondents:

Appellant: I McSporran AD; the Crown Agent

First Respondent: Duguid QC, Lenehan; Ian McCarry, Glasgow

Second Respondent: Targowski QC, AJ Macleod; Bob McDowall, Glasgow

29 September 2015

Introduction

[1]        This is an appeal against the decision of a judge, at a Preliminary Hearing on 24 June 2015 at the High Court in Glasgow, ordering disclosure by delivering copies of the disc recordings of police and social work Joint Investigative Interviews (JIIs) of the complainers to the respondents’ agents, subject to certain conditions.  The recordings last about 6 hours.

Background

[2]        The respondents, who are aged 16 and 15,  face two charges of sexual abuse involving two younger boys, contrary to sections 18, 20 and 21 of the Sexual Offences (Scotland) Act 2009.  Special measures have been granted in relation to both complainers.  These include the taking of their evidence on commission and the giving of evidence in chief in the form of prior statements (Criminal Procedure (Scotland) Act 1995, s 271I and M), viz. the recordings of the JIIs.

[3]        The discs and the transcriptions are listed as productions in the lists attached to the indictment.  The discs are in the custody of the Crown.  The Crown have refused to provide copies of the discs to the defence.  Rather, they have elected to disclose the evidence “by enabling the accused to inspect [the discs] at a reasonable time and in a reasonable place” (Criminal Justice and Licensing (Scotland) Act 2010, s 160(3)).  This method of disclosure is known as “disclosure by access”.  It involves the Crown retaining possession of the discs at an office of the Procurator Fiscal.  A room is available for the respondents’ agents and counsel to view the discs’ content.  In order to do so, they must book an appointment about four days in advance, during ordinary working hours and subject to availability.  The respondents’ agents are not permitted to remove the discs, but they may view them on as many occasions as is desired.  The respondents wish to have the discs’ content viewed by a forensic psychologist, who is said to be able to comment on the interviewing process under reference to established guidelines.  The Crown have declined to provide copies of the discs to the experts.  The expert view may, it is said, ground an objection to the admissibility of the JIIs in whole or in part.  The objection relates to the leading or inappropriate nature of the questioning.

[4]        Both respondents lodged preliminary and compatibility issue minutes relating to the discs.  The preliminary issue raised by the first respondent avers oppression, based on the limited means of access to the discs as proposed by the Crown and inaccuracies in the transcriptions of the JIIs, which have been provided.  The preliminary issue raised by the second respondent relates to the accuracy of the transcripts and to certain content which, it is said, relates to a crime not charged.  The compatibility minutes raise a complaint of a breach of Article 6.3(b) of the European Convention in that the mode of access to the discs does not afford the defence adequate time and facilities for the preparation of the defence.  The principle of equality of arms was applicable, since the advocate depute prosecuting the case would be provided with copies of the discs, even if these could not be taken away from Crown Office premises.

The 2010 Act

[5]        Following the recommendations of the Coulsfield Review of the Law and Practice of Disclosure (2007), the Crown’s duties of disclosure are contained in Part 6 the Criminal Justice and Licensing (Scotland) Act 2010.  As soon as practicable after the commencement of proceedings, the Crown must review all relevant information and disclose to the accused all the material information of which they are aware (s 121).  The prosecutor may disclose the information “by any means” (s 160(2) and may “disclose the information by enabling the accused to inspect it at a reasonable time and in a reasonable place” (s 160(3)). 

[6]        The legislative provisions were informed by the recommendations of the Review, which state (para 6.3):

“disclosure of sensitive video evidence given by vulnerable witnesses could do great damage, if it led to circulation and duplication of the video images either as part of an effort to intimidate or out of sheer mischief.”

After assessing the practical difficulties in disclosing recordings, the Review observed (para 17.4):

“… recordings of vulnerable witnesses may be unusually sensitive.  Just as with a sensitive document, this cannot normally outweigh the requirement for recordings with potential exculpatory value to be made available to the defence.  However, it may commonly be necessary to effect disclosure not by passing a copy of the tape to the defence, but by arranging for them to view it under controlled conditions.”

[7]        In terms of section 164 of the 2010 Act, the Lord Advocate issued a Code of Practice, which has been laid before Parliament.  Paragraph 26.8 of the Code states:

“Where information is assessed as being material, copies should not be provided to the defence where the information is of a personal and highly sensitive nature and disclosure of copies (electronically or otherwise) may be extremely distressing to any individual or where the information consists of:

…       

(ii)        Visual (including audio) recordings of a child or other vulnerable witnesses being interviewed and

…”

[8]        The practical effect of this provision is that, while the legislation provides for an exercise of discretion on the part of the Crown to disclose material by “any means”, the Code of Practice contains a prohibition on copies being made available to the defence if the criteria set out in paragraph 26.8 are satisfied.

Decision of the PH judge

[9]        The PH judge ordered the Crown to provide copies of the discs to the respondents’ agents in a format which allowed their computers to read, but not to copy, them.  The judge imposed conditions whereby: (1) copies will not be made of the discs; (2) no disclosure of the recordings or its contents will be made unless necessary in the legitimate interests of the accused; (3) the discs will be returned at the end of the proceedings; (4) except when being viewed, the discs will be kept in a locked, secure container and not unattended or otherwise unprotected; and (5) the accused can view the discs under the supervision of his legal representatives. 

[10]      The judge’s view was that the Crown had adopted an illegitimate blanket policy whereby discs containing visual recordings of JIIs of children being interviewed will never be given to the defence.  That policy left no element of discretion.  It was in stark contrast to that which exists in England and Wales and Northern Ireland.  In those jurisdictions, the prosecuting authorities provide copies of discs to the defence in their equivalent disclosure regimes.

[11]      The practical problems, raised by the requirement that counsel and experts must view the recordings at the procurator fiscal’s office, were significant.  First, having to view the discs during office hours made it difficult, if not impossible, for counsel, who were usually in court during those hours, to do so for a sufficient length of time to allow meaningful preparation for trial.  Secondly, it was highly unlikely that the Scottish Legal Aid Board would sanction travelling expenses of experts to and from that office. 

[12]      The judge was unwilling to accept that the defence would be any less competent than the Crown in ensuring that the discs were not mislaid or misused.  In the circumstances, the judge concluded that the Crown’s policy offended the respondent’s right to a fair trial under Article 6 of the European Convention.  Rather than terminating the proceedings, he ordered that the Crown should provide copies of the discs.  He did not therefore make any order in relation to the preliminary issue minutes.

Submissions
[13]      The principal contention for the appellant was that the judge had erred in holding that the respondents’ Article 6 rights were breached by the decision to disclose the content of the JIIs by access, rather than providing copies.  It could not be said that a failure to make copies available would inevitably result in an unfair trial.  In terms of section 164 of the 2010 Act, the Lord Advocate had laid before the Scottish Parliament a Code of Practice.  The Code of Practice established a clear, consistent and readily understood means which enabled parties to apply a practice meeting the legitimate and proportionate aims of balancing the rights of an accused person and those of the witnesses. 

[14]      Article 6(3)(b) was not absolute.  Limited qualification of those rights was acceptable when reasonably directed towards a clear and proper public objective, if it represented no greater qualification than necessary.  The Code represented a fair balance between the rights of the respondents and the general public (Brown v Stott 2003 SC (PC) 43).  Disclosure by access was a justified and proportionate response to the obligations placed upon the appellant and did not unnecessarily impede preparation of the defence.  It balanced the interests of the respondents, victims and society (R v A (No.2) [2002] 1 AC 45 at para 38).  Equality of arms did not equate to identical preparation (AG’s Reference (No.82a of 2000) [2002] 2 Cr. App. R. 24; MM v HM Advocate 2005 JC 102 at paras 46-47).  The adequacy of time allowed would depend on the complexity of the case (Albert and Le Compte v Belgium [1983] 5 EHRR 533).  This case was not complicated.  Any limitation on access was counterbalanced by other safeguards, including: legal representation; viewing by an expert; repeated opportunities to view; and the provision of the transcripts (Dowsett v United Kingdom [2004] 38 EHRR 41 at paras 41-42; Rowe and Davis v United Kingdom [2000] ECHR 1 at para 61; and HM Advocate v Murtagh 2009 SCCR 790). 

[15]      The respondents endorsed the approach of the trial judge.  They stressed the content of the guidance on JIIs produced by the Scottish Government (2011), which stated (para 206) that a copy of a JII may be required in civil proceedings.  The practice in England and Wales and Northern Ireland was emphasised.

Decision

[16]      It is important to distinguish between different regimes.  The first is that of “disclosure”.  This is concerned with information which would either (a) materially weaken or undermine the evidence which is likely to be led by the prosecution; (b) materially strengthen the defence case; or (c) be likely to form part of the prosecution evidence.  The duty is on the prosecutor from the earliest appearance of an accused on petition or indictment (if there is no petition) or when an accused pleads not guilty to a summary complaint.  The duty is now statutory (Criminal Justice and Licensing (Scotland) Act 2010, s 121) and derives from the principles set out in Macleod v HM Advocate (No.2) 1998 JC 67 and the subsequent Coulsfield Review.  The object is to ensure that the defence have knowledge of what evidence will form the case against the accused and what material there is available to refute it.

[17]      This case is concerned with recordings of the Joint Investigative Interviews.  Whilst they may provide powerful information (Coulsfield Review para 17.2), they are also label productions in the case.  As such a different regime covers their inspection by the defence.  No issue of disclosure per se arises in such circumstances.  The defence have had formal notice, by way of the lists attached to the indictment (Criminal Procedure (Scotland) Act 1995, s 68(1)), of both the discs and the transcriptions.  Intimation of such lists has the effect of bringing the productions specified under the control of the court whether or not they have been lodged and it is for the court to determine, as master of its procedure, what may or may not happen to them.  No issue of substantive law arises.  At this stage in the case the accused is entitled to see the labels, not as a result of the disclosure regime but in terms of the statute relative to the lists of productions (ibid, s68(2)).  It can be inferred from reading sub-sections 68(1) and (2) that the labels ought to have been lodged with the Justiciary Office along with the record copy indictment.  Whilst, in modern practice the Crown may retain them until the diet of trial (see eg HM Advocate v B 2012 SCCR 336), it does so subject to any order of the court.  If an accused wishes to remove any production from the custody of the court or Crown for the purposes of copying or inspection by an expert, he is entitled to apply to the trial court to do so (Davies, Petnr 1973 SLT (notes) 36, LJC (Wheatley) at 37).  There is no need to invoke the disclosure regime, Article 6 of the Convention or European Court jurisprudence.  There is no need to lodge a preliminary or compatibility issue minute.  All that is required in respect of items referred to in the lists attached to the indictment is a request to the trial court to borrow them for a specified purpose (including copying).  The court will thereafter decide, as a matter for its discretion but no doubt having regard to the principles of fairness, including equality of arms, whether it is in the interests of justice to grant the application.

[18]      Given that the labels are to be used as evidence in chief, it is difficult to conceive of a situation in which the court would refuse such an application, albeit perhaps subject to conditions.  The court has effectively granted that application.  The appeals will simply be refused on that basis.