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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> NOTE OF APPEAL UNDER SECTION 130 OF THE CRIMINAL JUSTICE AND LICENSING (SCOTLAND) ACT 2010 BY JOHN JOSEPH McCARTHY AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_52 (13 February 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_52.html
Cite as: 2021 SCCR 6, [2020] HCJAC 52, 2021 JC 100, [2020] ScotHC HCJAC_52, 2020 GWD 40-510, 2021 SLT 1446
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Brodie
Lord Drummond Young
[2020] HCJAC 52
HCA/2019/613/XC
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL UNDER SECTION 130 OF THE
CRIMINAL JUSTICE AND LICENSING (SCOTLAND) ACT 2010
by
JOHN JOSEPH McCARTHY
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Bovey QC; PatersonBell (for Callahan McKeown & Co, Paisley)
Respondent: Gillespie AD; the CrownAgent
13 February 2020
Introduction
[1] This is an appeal against a first instance decision of the High Court on whether
section 121 of the Criminal Justice and Licensing (Scotland) Act 2010 (“Prosecutor’s duty to
disclose information”) applies in circumstances in which both the Crown and the police had
stated to the appellant’s legal representatives that the information did not exist. The
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practical purpose of making such a ruling remained unclear, but the appeal raises wider
issues about the operation of the statutory disclosure regime. There is a related concern
about the time which has elapsed, whilst the appellant has remained in custody, pending his
obtaining different sets of legal representation.
The Criminal Justice and Licensing (Scotland) Act 2010
[2] The 2010 Act introduced a detailed, elaborate and onerous statutory scheme for the
disclosure of “information” by the Crown to the defence following the recommendations of
Lord Coulsfield’s Review of the Law and Practice of Disclosure in Criminal Proceedings in
Scotland (2007). The scheme supersedes the “common law rules about disclosure of
information” (s 166(1)).
[3] Section 116 of the 2010 Act (Meaning of “information”) provides that:
“(1) ... ‘information’ ... means material of any kind given to or obtained by the
prosecutor in connection with the proceedings”.
[4] Section 117 requires, inter alios, the police to provide the Crown with “details of all
the information which may be relevant to the case” of which they are aware and has been
obtained during their investigation. The duty arises as soon as practical after the accused’s
first appearance in solemn proceedings and (s 118) continues until the conclusion of these
proceedings.
[5] Section 121 (Prosecutor’s duty to disclose information) states:
“...
(2) As soon as practicable after the appearance … the prosecutor must –
(a) review all the information that may be relevant to the case for or against the
accused of which the prosecutor is aware, and
(b) disclose to the accused the information to which subsection (3) applies.”
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Subsection (3) encompasses any information which is likely to form part of the evidence in
the Crown case or either weaken s that case or strengthens the accused’s case. The duty on
the prosecutor is also a continuing one (s 123). However, since the Crown will not
necessarily know what the accused’s case is, the scheme introduced into the Criminal
Procedure (Scotland) Act 1995, against the Coulsfield recommendations, an obligation
(s 70A) on the accused to lodge a statement of his case 14 days prior to the first diet or
preliminary hearing. In the event of a change in the defence in the period up to 7 days
before the trial, a further defence statement must be lodged (s 70A(4)). If there is another
change, further statements may be lodged prior to the trial diet and possibly even during
that diet (ss 70A(5)-(7)). The statements ought to set out the nature of the defence and,
under reference to that defence, identify any information which the accused requires the
Crown to disclose (s 70A (9)(e)).
[6] Section 124 of the 2010 Act (Defence statements: solemn proceedings) continues:
“…
(2) As soon as practicable after the prosecutor receives a copy of the defence
statement, the prosecutor must –
(a) review all the information that may be relevant to the case for or
against the accused of which the prosecutor is aware, and
(b) disclose to the accused any information to which section 121(3)
applies.”
Section 128 (Application by accused for ruling on disclosure) states:
“(1) This section applies where the accused –
(a) has lodged a defence statement …
(b) considers that the prosecutor has failed, in responding to the
statement, to disclose to the accused an item of information to which
section 121(3) applies (the ‘information in question’).
(2) The accused may apply to the court for a ruling on whether section 121(3)
applies to the information in question.
...
(7) On determining the application, the court must –
(a) make a ruling on whether section 121(3) applies to the information ...”.
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Section 130 (Appeals against rulings under section 128) states:
“(1) The prosecutor or the accused may, within the period of 7 days beginning
with the day on which a ruling is made under section 128, appeal to the High Court
against the ruling.”
Procedure
[7] The appellant was indicted to a preliminary hearing on 28 September 2018 on
charges of being concerned in the supplying of diamorphine and cocaine between December
2014 and June 2018 at an address in Glasgow, contrary to section 4(3)(b) of the Misuse of
Drugs Act 1971. The case has had a tortured procedural history since then.
[8] On 26 September 2018, a defence statement was lodged in bland and unconstructive
terms. This stated that the nature of the appellant’s defence was that he was not guilty. He
took issue with all matters of fact relied upon to found an inference of guilt and intended to
rely on all matters of fact tending to undermine any inferences of guilt or supporting the
defence position. It was stated specifically that there was no point of law which the
appellant wished to raise. There was no information that he wanted the prosecutor to
disclose. There was a reference to a special defence of coercion, without further elaboration.
This special defence was a matter of “ongoing enquiry”. The appellant was nevertheless
ready for trial. Since that was also the Crown’s position, a trial diet was appointed for the
week commencing on 10 January 2019.
[9] Shortly before the trial diet, the appellant lodged a preliminary issue minute. This
concerned whether a search warrant had covered the locus where the drugs had allegedly
been found. The PH judge refused to allow this to be received late. An incompetent Bill of
Advocation, and then an equally incompetent Petition to the Nobile Officium, followed to
challenge the PH judge’s decision . When the trial diet was called on 15 January 2019, senior
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counsel for the appellant advised the court that, “Due to differing views on the conduct of
the defence”, he and his agents were withdrawing from acting. The trial was adjourned
until the week commencing 18 March 2019, with a continued PH set for 5 March.
[10] The new PH was continued until 11 March when a special defence of coercion was
allowed to be received late. This read that:
“any involvement with controlled drugs which the accused ... may have had in the
matters set out in the indictment was against his will and solely as a result of threats
of violence made against him by an adult Caucasian male person known ... only by
the name of ‘Lee’, whose further personal details and whereabouts are presently
unknown, which threats of violence overbore his will and placed him in fear of his
life and amounted to coercion.”
The appellant moved the court to adjourn the trial diet again to allow a period of
investigation in relation to the identity and whereabouts of Lee. This was granted. A new
trial diet was fixed for the week commencing 10 July 2009.
[11] On 16 July 2019, when the trial diet called, the new senior counsel for the appellant
advised that there had been “a breakdown in trust with the accused, and that unfortunately
he, and his agents, were unable to continue to represent the accused”. On this basis another
trial diet was fixed for the week commencing 4 November 2019 with a continued PH on
19 August. In due course, that PH was continued to the trial diet.
The new Defence Statement and Application for a ruling
[12] On 8 October 2019, the appellant’s agents sent a “supplementary defence statement”
to the Justiciary Office. This stated that, although the nature of the appellant’s defence was
one of coercion, he had also been “the victim of entrapment by a state agent”. He wished to
raise a plea in bar of trial or a preliminary issue objecting to the admissibility of evidence.
The statement continued in relation to disclosure as follows:
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“The accused wishes the prosecutor to request/obtain from the police and disclose
the following information –
(1)
The true identity and address ... of the man known ... as ‘Lee’ and
confirmation whether ... he is an undercover police officer or police informant or
covert human intelligence source or agent provocateur working for the police.
(2) Any and all police records of the involvement of ‘Lee’, and Kirsty McKay and
‘Caroline’ ... with the accused in the events giving rise to the instant charges ...
(3) In the event that the disclosure requested above does not exist or does not
confirm that ‘Lee’, Kirsty McKay or ‘Caroline’ had any involvement with the accused
and/or the police in connection with the instant charges, the prosecutor is requested
to disclose any and all records ... that led to the grant of the search warrant for the
locus on 16 May 2018 and the execution of that warrant on 4 June 2018; and the
nature and source of that objection”.
[13] The statement sought information on whether either Ms McKay or Caroline were
police informants or covert human intelligence sources. It sought information about an
alleged attendance by the Scottish Ambulance Service and the police at a service station in
Elderslie when they allegedly had certain dealings with Lee. Information about an alleged
attendance of the police at a flat in Glasgow, some time between January and June 2018
when the police allegedly spoke to Lee, was also requested. Finally, recordings of telephone
calls between the appellant and Ms McKay and Caroline, whilst he was on remand in HM
Prison, Barlinnie, were sought.
[14] Behind the requests for disclosure in the defence statement was a narrative in which
the appellant maintains that he came to know Lee through Ms McKay in the context of Lee’s
drug dealing. It is said that, on 2 June 2018, the appellant visited Ms McKay’s flat. Lee was
there and threatened to kill the appellant, if he did not assist in the storing of drugs and
making them up into street deals. The appellant was afraid that this threat would be carried
out and, for that reason, took drugs, bags and scales from Lee and stored them in his flat (ie
the locus). On 3 June he was called round to Ms McKay’s flat and threatened as before,
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unless he stored cash for Lee. On 4 June he went round to Ms McKay’s flat again and took
samples of the drugs, which he had made up into bags. When the appellant returned home,
the search warrant was executed and drugs, cash and related paraphernalia were recovered.
In addition, and perhaps in contrast, to the defence of coercion, the appellant maintains that
he had been targeted by the police and entrapped by their agent, namely Lee, into becoming
involved in the offences.
[15] The Crown stated to the appellant’s legal representatives that Lee was not an
undercover police officer. A letter from a detective chief inspector of Police Scotland to the
appellant’s then agents, dated 9 January 2019, had already said that:
“... at no time preceding [the appellant’s] arrest was any covert police officer
deployed to engage with [the appellant] or any other covert tactic deployed.
Similarly I can also confirm that no officer supplied drugs to any female from
Renfrewshire.”
[16] On 29 October 2019, the appellant lodged an application for a ruling on whether
section 121(3) of the 2010 Act applied to the information requested. This came before the
court on 1 November 2019. At the hearing, the Crown explained that no covert tactics had
been employed. Enquiries had been made by interrogating the police incident recording
system, but this had not assisted in identifying Lee. The police did not know who Lee was.
They had no record of a police incident involving ambulance services being called to a self-
service station in Elderslie. Four calls had been made by the appellant from prison, but the
recordings had been overridden and were no longer available. The Crown did not know
anything further about Ms McKay or Caroline. The advocate depute submitted that there
was nothing further that the Crown could do. The information sought did not exist and
could therefore not be given to the defence. It was not information as defined by
section 121(3) of the 2010 Act.
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[17] The judge found that the information sought was not covered by the section, as it
would neither materially weaken nor undermine evidence likely to be led by the prosecutor.
It was not information that would materially strengthen the appellant’s case, nor did it form
part of the evidence to be led by the prosecutor. Section 121(3) had no application. The
application was therefore refused. Meantime, yet another new trial diet has been set for the
week commencing 23 March 2020. By that time the appellant will have been in custody for
about 21 months.
Submissions
[18] The ground of appeal is that the judge erred in failing to make a ruling on whether
section 121(3) applied to the information in the application and in failing to hold that it did.
The information would enable the appellant to identify, trace and cite Lee in support of his
defence of coercion and would confirm whether he was an undercover police officer, police
informant or covert human intelligence source. It would support his contention that he was
entrapped. It would provide evidence of th e roles of Ms McKay and Caroline in entrapping
the appellant.
[19] The judge erred in holding that section 128 permitted her to consider whether the
Crown possessed the information, what steps it had taken to obtain it and whether it had
met its disclosure obligations. None were relevant. Section 128 had two purposes. The first
was to secure a ruling, when there was a disagreement on the relevance of information. The
second was to inform the authorities of their duty to disclose the information. The appellant
was not seeking to recover material from the police, since the police could not produce
material which they did not have. The judge failed to have regard to the effect which a
judicial declaration may have on the Crown and the police in obliging them to investigate,
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reveal and disclose the information sought fully and diligently. She had given undue
weight to the Crown’s assertion that it had complied with the disclosure obligation. The
defence had now been able to contact Ms Mackay and had obtained new information. The
Crown were under a continuing obligation in what was a fluid situation ( McDonald v
HM Advocate 2010 SC (PC) 1 at paras [50-59]). If the court did not rule that the information
was relevant, the Crown would be given the impression that they need not continue to look
[46] .
[20] Section 121(3) was not to be read as limited by section 116(1), since that would mean
that the Crown could be aware of information, but have no duty to disclose it as they did not
have possession of it. There was a duty of enquiry on the Crown. The failure by the Crown
gave rise to a compatibility issue in that the trial would not be fair or in accordance with the
law.
[21] The Advocate Depute replied that, on receipt of the revised defence statement, the
Crown had made enquiries of the police. The information was that no covert tactics or
covert officers had been involvemcd. No surveillance had been used. The Crown had no
details of Lee, Ms McKay or Caroline. The search warrant had been obtained on the basis of
intelligence received. The judge’s decision was correct. It was consistent with Hill v
Procurator Fiscal, Lerwick, unreported, 23 November 2016, in respect of information which
did not exist. It was impossible to disclose it.
Decision
[22] As with many of the provisions of the Criminal Procedure (Scotland) Act 1995, the
disclosure scheme pre-supposes that an accused will abide by its terms, in so far as they set a
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procedural framework within which a fair trial will occur. The scheme is intended to secure
such a trial by making clear what the Crown require to disclose to the defence
Turnbull, delivering the opinion of the court, at para [22]). For the system to operate as
intended, defence representatives must lodge the requisite statement within the time scale
provided; that is, in a High Court prosecution, at least 14 days before the preliminary
hearing. If that is not done, there is at least a prospect that the Crown will not have
disclosed material which is ultimately regarded as falling within the definition of relevant
“information” in terms of section 121(3) of the 2010 Act. Where no statement is lodged
timeously, or if it takes the form of the type which was lodged in this case, it should not be
assumed that the court will regard a later statement as validly lodged in terms of
section 70A(4)(b) or (5). Such a statement is only competent if it stems from a material
change of circumstances. It ought accordingly to narrate what that change of circumstances
has been, in order to enable the court to take a view on competence. No such change was
advanced in this case and the judge at first instance would have been entitled to reject the
new statement as invalid. No doubt, in the interests of justice, which may often be the test,
she did not do so. The court will accordingly proceed on the basis of its competency.
Nevertheless, it is worth repeating that, if an accused wishes the Crown to make proper
disclosure in terms of what is intended to be a balanced statutory scheme, he should comply
with the obligations upon him as set out in the scheme. A pro forma response, such as that
employed here, does not do so where, as subsequently revealed, the accused, for example,
accepts that the drugs, cash and associated paraphernalia were in his flat when the search
warrant was executed.
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[23] The purpose of the provision which permits an accused to ask for a ruling on
whether section 121(3) applies to the “information in question” is designed to operate in
circumstances in which the Crown is in possession of information and there is a dispute
about whether it falls within the parameters of section 121(3); eg whether it materially
weakens the Crown case or strengthens that of the accused. It permits the court to rule on a
matter in dispute. It is not to be used as a vehicle for airing uncontested glimpses of the
obvious. The court is available for the determination of issues of live practical significance;
not those of academic or hypothetical interest (see Macnaughton v Macnaughton’s Trs 1953 SC
387, LJC (Thomson) at 392).
[24] It can hardly be disputed that information that the drugs held by the appellant had
been supplied by a police officer, or a person acting under the direction of the police, would
fall to be disclosed under section 121(3). Equally, if the Crown were in possession of
information, which might enable the appellant to locate the person, by the name of Lee, who
is said to have coerced the appellant into supplying the drugs, that too would be disclosable
as relevant to the special defence. The Crown did not attempt to resist the application on the
basis that they were not, and would not continue to be, under an obligation to disclose this
type of information, if it existed. The opposition was that it did not. The appellant has
proffered no basis, apart from his own musings, for supposing that it does exist . A ruling
that the Crown must disclose information, when there is no reason to suppose that such
information exists, is an academic exercise which serves no purpose. The court agrees with
the judge at first instance that the application for a ruling that such information was
disclosable should be refused. The appeal accordingly fails.
[25] It is important to distinguish disclosure from recovery. If the appellant seeks to
recover records covering the police’s involvement with Lee, Ms McKay or Caroline, or
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Ambulance Service records, then an application to that effect may, subject to the
for a commission and diligence. In all of this, it is useful to recall the dicta in McDonald v HM
Advocate 2010 SC (PC) 1 (Lord Rodger at para [60]) that, whereas the Crown have an
obligation to disclose relevant information, their core duty is to prepare and prosecute the
case; not to encroach onto the territory of the defence representatives.
[26] Finally, this appeal should not be determined without comment on the extraordinary
length which this prosecution has taken whilst the appellant has been in custody. This
appears to be primarily attributable to the appellant’s own actings in having rejected the
advice of at least two legal teams, both of which included experienced and skilled senior
counsel. Priority must be given in the court calendar to ensure that this case proceeds
promptly at the next calling of the trial diet.