Sinclair v. Her Majesty's Advocate (Devolution) [2005] UKPC D2 (11 May 2005)

ADVANCE COPY

	Privy Council DRA. No. 2 of 2004

Alvin Lee Sinclair	Appellant
	v.
Her Majesty’s Advocate	Respondent

	FROM

	THE HIGH COURT OF JUSTICIARY
SCOTLAND
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 11th May 2005
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	Present at the hearing:-
			Lord Bingham of Cornhill
			Lord Hope of Craighead
			Lord Rodger of Earlsferry
			Baroness Hale of Richmond
			Lord Carswell
	------------------

Lord Bingham of Cornhill

1.	I have had the opportunity of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry.  I am in complete agreement with them, and for the reasons that they give would make the orders which Lord Hope proposes.
____________________

Lord Hope of Craighead

2.	Section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the rights and freedoms in the European Convention for the Protection of Human Rights and  Fundamental freedoms which section 1(1) of the Human Rights Act 1998 defines as the Convention rights.  The issue which the appellant has raised in this appeal is whether the act of the Lord Advocate in bringing proceedings and seeking a conviction without having produced or disclosed the existence and contents of statements made to the police by a witness who was to corroborate the complainer’s account of the incident was incompatible with the appellant’s right to a fair trial under article 6(1) of the Convention.  This is a devolution issue within the meaning of para 1(d) of Schedule 6 to the Scotland Act.  On 1 July 2004 the High Court of Justiciary dismissed the appellant’s devolution minute, and on 7 July 2004 it refused leave to appeal against that decision to the Judicial Committee of the Privy Council.  On 28 October 2004 the Judicial Committee granted special leave under para 13 of Schedule 6 for the bringing of the appeal.

3.	On 5 February 2002 the appellant was convicted in the High Court of Justiciary sitting at Glasgow on a charge of assault to severe injury, permanent disfigurement and permanent impairment. The charge against him was that
“on 6 August at 3 Ivanhoe Drive, Kirkintilloch you did assault Graeme Tennent, c/o Strathclyde Police, Kirkintilloch, strike him on the head with a hammer and repeatedly with a pair of scissors and repeatedly punch him on the head, all to his severe injury, permanent disfigurement and permanent impairment.”   

The medical evidence was that the complainer had sustained a compound fracture of his left mandible which required the insertion of four plates in his jaw and a penetrating injury to the full depth of his left eye which had to be removed two months later and replaced with a synthetic one.  These were plainly very severe injuries.  On 19 March 2002 the appellant was sentenced to eight years imprisonment.

4.	The only evidence led by the Crown in support of this charge was that of the complainer, Graeme Tennent, and his then girl friend, Pamela Ritchie, who said that she was in the complainer’s house at the time and that she had witnessed the incident.  Her evidence was essential to the Crown case, as she was the only witness who could corroborate the complainer’s evidence that he was assaulted by the appellant.  The medical evidence was that the injuries which he was found to have sustained when he was admitted to hospital were consistent with his account that he had been struck on the jaw with a hammer and in the eye with a pair of scissors.  But the Crown had to rely on Pamela Ritchie’s evidence to corroborate the complainer’s evidence that these injuries were caused by the appellant who had assaulted him.  Two other people were in the house at the time, but neither of them was willing to admit that they had witnessed the incident.

5.	Pamela Ritchie accompanied the complainer when he was taken by ambulance to Glasgow Royal Infirmary in the early hours of Sunday 6 August 2000.  She was seen by Detective Constable Gillan shortly after 5 am while she was still at the hospital.  She gave a signed statement to him in which she said that, while she was responding to an unprovoked assault on her by a woman named Stacey Ritchie (who was no relation), she saw the appellant stabbing the complainer once on the face with a pair of kitchen scissors.  She said that the appellant then left the house with Stacey Ritchie.  She tried to find the scissors after he had gone but was unable to do so.  She also said that while she was in the ambulance the complainer told her that the appellant had hit him on the head with a hammer.  But she said that she had not seen this, and that she did not see any hammer lying about the house.  Two days later, on 8 August 2000 at Kirkintilloch Police Office, she was seen by Detective Constable Dunlop and Detective Constable MacDonald.  She went over her previous statement and provided them with another statement which she also signed.  In this statement she said that she saw the appellant repeatedly stabbing the complainer about the head and face with scissors.  Referring to the passage in her original statement where she was recorded as having said that she tried to find the scissors in the house, she said that this was not true.  She made no mention in this statement of any hammer.

The evidence at the trial
6.	Pamela Ritchie’s name was, of course, included in the list of witnesses that was attached to the indictment.  So too were the names of Detective Constable Gillan and Detective Constable MacDonald.  A pair of scissors and two hammers were among the label items in the list of productions.  The statements which Pamela Ritchie had provided to the police were not disclosed either to the appellant or to his solicitors.  So his representatives were unaware of the content of those statements when she was called by the Advocate Depute to give evidence in support of the Crown case.  According to the agreed statement of facts and issues before the Board, the statements were in the possession of the Crown but they were not in the possession of the Advocate Depute at the trial.  That too was the agreed position at the hearing of the appeal in the High Court of Justiciary.  The Lord Justice General (Cullen) said that it was not in dispute that the Advocate Depute did not have with him copies of the police statements and that the exact terms of these statements were not known to the defence: 2004 SLT 794, 797, para 10.

7.	In her examination in chief Pamela Ritchie identified the appellant in the dock as one of those who was in the complainer’s house when she arrived there during the evening of 5 August 2000. She said that a fight had broken out between her and Stacey Ritchie while they were in the living room.  At that time the complainer was asleep in a chair in the same room.  He was wakened by her shouting at him and got to his feet.   As he did so she saw him being hit with a hammer over the head by the appellant.  She did not see exactly where the blow landed but she found out later that it was on his jaw.  She then saw the complainer being stabbed in the head by the appellant with a pair of scissors.  She was unable to say how many times this happened, but it was more than once.  She then intervened and the appellant left the house.  It had all happened very, very quickly.

8.	It is plain that the Advocate Depute did not expect Pamela Ritchie to say that the appellant had assaulted the complainer with a hammer.  He asked her what she had said to the police when she spoke to them at the hospital after the incident.  He asked her whether she could remember whether she mentioned a hammer to them at that time.  She said that she could not remember what she mentioned to them at that time as she was in shock.  She was shown the pair of kitchen scissors which was in court among the labelled productions.  She said that they were similar to those she had seen on the night of the incident but that she could not be sure that they were the ones that the appellant had that night.  She was then shown the two hammers.  She said that the first one she was shown did not resemble the one that she had seen that night, but the other one was more like the one she had seen in terms of its size.

9.	In his cross-examination the appellant’s solicitor advocate, Mr Macara, returned to the question as to what Pamela Ritchie had said to the police when she was in Glasgow Royal Infirmary.  He asked her whether she mentioned that the appellant struck the complainer with two objects, namely a hammer and a pair of scissors, to which she replied “Yes”.  He repeated the question, and she replied: “I possibly would have said that to the police, yes.  That is what happened.  I would have said that to the police”.  He pressed her again on this point, repeating his question whether she said to the police that she had seen the appellant strike the complainer with a hammer and then a pair of scissors – in other words, with two separate objects, to which she again replied “Yes”. There then followed this question:
“So it wouldn’t for example be the case that you only told the police about the scissors?  You told the police that you had been fighting in the hallway and didn’t know what had happened at the start and you only saw your boyfriend being struck by a pair of scissors?

Her answer to this question was:
“It is very difficult for me to remember what I said to the police at the time.  I was under a great deal of shock.  But what I would have said to them, what I seen at the time.”

He asked her once again whether she told the police that the attack consisted of a blow with a hammer and blows with scissors, to which she replied “I would have told them what I seen, yes”.  In reply to his suggestion that it was incorrect that she only told the police about the scissors and that she did not mention a hammer, she replied “I would say that it was incorrect, yes”.  Asked whether she remembered staff in the procurator fiscal’s office reading her police statement to her, she said that they had gone over her statement with her and she was asked to confirm what she had said and that as she remembered it her statement referred to a hammer and scissors.

10.	The solicitor advocate concluded his cross-examination by suggesting to Pamela Ritchie that there never were any scissors and there never was a hammer.  He suggested that the appellant did not attack the complainer with either of these things but that the two of them were fighting together and wrestling and ended up on the floor where they were rolling around and things were being knocked over and glass was being broken.  She said that this was not true.

11.	The Advocate Depute confined his re-examination of Pamela Ritchie to the questions which she had been asked about statement which she had given to the police in Glasgow Royal Infirmary.  He asked her whether she remembered mentioning a hammer to them, to which she replied “Yes, I think I did.  Yes”.  He then asked her whether she attended at Kirkintilloch Police Office on 8 August to give a more formal statement, in the course of which the detective constable who was noting her statement went over certain aspects of her previous statement with her.  He asked whether the detective constable mentioned a hammer and whether she mentioned a hammer to him, to which she replied “I would have been mentioning the hammer to him, yes”.  The Advocate Depute then suggested to her that there was nothing in the statement which she gave that day about a hammer and asked why that would be.  Her reply was that she could not remember if she was definitely asked about the hammer but that if she was asked she would have said that she had seen it.

12.	These exchanges show that the Advocate Depute and the appellant’s solicitor advocate were both taken by surprise by Pamela Ritchie’s evidence that she had seen the appellant strike the complainer with a hammer.  It can be assumed from the questions that they put to the witness that they had in their possession precognitions which had been taken from the police officers to whom she had given her two statements and that they were aware that the evidence which she was now giving in court was inconsistent with them.  But as they did not have the statements in their possession they were unable to press her any further than they did as to their contents.  The appellant’s solicitor advocate in particular was unable to confront her with these statements when she was in the witness box.  He was unable to demonstrate not only that there was no mention that she saw the appellant use a hammer in either of them, but also that she had specifically stated in her first statement that she had not seen a hammer being used.  So he was deprived of a crucial piece of evidence which he could have used to cross-examine this crucial Crown witness about her credibility and her reliability.

The Appeal Court's judgment
13.	In the appellant’s ground of appeal it was stated that he had been denied a fair trial by reason of the Crown’s failure to disclose the police statements, and that the decision of the Crown not to make these statements available to the defence was a violation of its duty both at common law and by virtue of the obligations laid upon the Lord Advocate by section 57(2) of the Scotland Act 1998. In his devolution minute it was submitted that for the Lord Advocate to seek to support the conviction in these circumstances would be for him to act in a way which was incompatible with the appellant’s Convention rights.  Reference was made to the right to a fair trial guaranteed by article 6(1) of the Convention.

14.	In the event the Appeal Court did not deal directly with the appellant’s complaint that he was denied a fair trial.  It concentrated instead on the question whether the Crown was in breach of its duty at common law.  Delivering the opinion of the court, the Lord Justice General said that it was not satisfied that the fact that the police statements were not produced before the trial was due to any breach of duty on the part of the Crown, as there was nothing to suggest that Pamela Ritchie was liable to add to the description of the incident which she had given to the police: 2004 SLT 794, 798, para 15.  As for what happened during the trial, he said that if the defence had asked the Crown to produce the statements the Advocate Depute would no doubt have considered himself bound to accede to that request: para 16.  He went on to observe that whether such a request was made would no doubt depend on whether it was considered advisable for the conduct of the defence, but that as the defence did not request the police statements there was no breach of duty on the part of the Crown: para 16.

15.	In para 17 of the opinion the Lord Justice General recorded an assurance which had been given to the court by the Advocate Depute that the Crown accepted that it had a duty to disclose any information which supported the defence case, including a known or stateable defence, or which undermined the Crown case and that this duty subsisted from the outset and throughout the leading of evidence.  Nevertheless it is clear from his observations in the preceding paragraphs that the court was proceeding on the basis that it was up to the defence to ask for the statements and that, in the absence of any such request, there was no breach of duty on the part of the Crown.  In other words, the relevant duty was not on the Crown but on the defence.  This approach to the Crown’s duty of disclosure raises an important issue which their Lordships must first address before turning to the questions with which the Appeal Court did not deal, which are whether as a result of a breach of that duty the appellant was denied his article 6(1) Convention right to a fair trial and, if so, what is the appropriate remedy.

The duty of disclosure
16.	In McLeod v H M Advocate (No 2), 1998  JC 67, the petitioner was seeking a commission and diligence to recover statements given to the police on pro forma questionnaires by a very large number of people who had been interviewed following a drugs raid on club premises.  Prior to the hearing of the appeal in that case by a court of five judges the Crown took the view that it was not in the public interest for police statements of Crown witnesses to be produced to the defence except when in the particular circumstances the interest of justice required it: see Lord Justice General Rodger at p 71A.  It had been acknowledged for a long time in the Book of Regulations for the Procurator Fiscal Service that the Crown had an obligation to disclose any information which supported the defence case and that this duty extended to information which supported any known or stateable defence or which undermined the Crown case.  But it was thought that it was in the interests of the effective prosecution of crime that statements given by civilian witnesses to the police should be kept confidential, as this was likely to encourage them to be more forthcoming than might otherwise be the case when they were providing information to the police.  The court for its part had previously shown no enthusiasm for questioning the Crown’s position on this issue, in view of the confidence which it had traditionally displayed in the Lord Advocate’s assessment of what was in the public interest.

17.	As Lord Justice General Rodger said in McLeod at p 71C, the written argument for the Crown which was lodged in that case demonstrated a major change in its attitude to this issue.  It was now accepted that it would no longer be right for the Crown to claim confidentiality in respect of police statements merely because they belonged to a class of documents which had traditionally been protected from disclosure, although it would continue to argue that it would be contrary to the public interest for police statements to be recovered in certain specific circumstances.  Far-reaching though that change in attitude undoubtedly was, however, the court was not prepared to accept counsel for the petitioner’s much more far-reaching argument that it was time for court to declare that accused persons had the right to have all the documents in a criminal investigation, and in particular any police statements, produced: p 79D-E.  No objection was taken in that case to the production of the statements on the ground of public interest.  The question was, as it always is when an order of this kind is being sought from the court, simply whether the petitioner had averred a sufficient basis to justify granting a commission and diligence: p 71G-H.  

18.	The discussion of the question of the test which the court should apply when it was considering whether the order which the petitioner sought should be granted has to be seen against that background.  The court’s primary concern was to lay down the test which should be applied when a commission and diligence or an order for production was being sought for the recovery of information that was in the possession of the Crown.  Account was taken of recent developments in the jurisprudence of the European Court of Human Rights on article 6 of the Convention, although neither the Scotland Act 1998 nor the Human Rights Act 1998 had yet been enacted.  It was noted in the course of the discussion that the Scottish system achieves its object of safeguarding the accused’s right to a fair trial by a combination of procedures, practices and conventions which are not replicated precisely in any other system, and that applications for the grant of a commission and diligence constitute only one part of this larger system: pp 77E-F, 80C-D.  

19.	At p 80D-F Lord Justice General Rodger said:
“I consider … that an accused person who asks the court to take the significant step of granting a diligence for the recovery of documents, whether from the Crown or from a third party, does require to explain the basis upon which he asks the court to order the haver to produce the documents.  The court does not grant such orders unless it is satisfied that they will serve a proper purpose and that it is in the interests of justice to grant them.  This is turn means that the court must be satisfied that an order for the production of the particular documents would be likely to be of material assistance to the proper preparation or presentation of the accused’s defence.  The accused will need to show how the documents relate to the charge or charges and the proposed defence to them.” 

20.	Counsel for the appellant submitted to the High Court of Justiciary in the present case that it was unsatisfactory that for it to be left to the Crown to determine whether a police statement was or was not material or that such a question should be left to arise in the course of a trial, and that it was unsatisfactory too that the defence had to identify reasons for justifying an application to the court for the recovery of documents such as police statements: 2004 SLT 794, 797, para 13.  But he did not ask the court to innovate on the decision on McLeod or suggest that it should be reviewed by a larger court.  There is a marked contrast between what he was seeking and the much more far-reaching request that was made in McLeod.  What counsel was asking for in this case was that the court should recognise a limited extension of that decision, namely that the Crown had a duty to produce the police statements of Crown witnesses as a matter of course, so that a judgment as to whether a particular police statement was or was not material would no longer have to be exercised. 

21.	It appears from the discussion which follows that the court was indeed seeking to follow the decision in McLeod and not to innovate on it.  That is why so much emphasis was placed on the duty of the defence to consider whether the production of the police statements would assist its case and, if it came to the conclusion that it would, to request their production.  But it has to be said that in seeking to be faithful to what was said in McLeod the court overlooked the fact that the issue in this case was not whether the court should grant a commission and diligence for the recovery of documents but whether, in the light of the events that happened when Pamela Ritchie was giving her evidence, the appellant had received a fair trial.  The events of this case call into question the manner the Crown has been performing its admitted duty to disclose any information which supports the defence case or undermines the case for the Crown in a way that the issue which was before the court in McLeod did not do.

22.	The Advocate Depute said that a series of checks was already in place to ensure that the obligation of disclosure was fulfilled and that, while individual cases might occur from time to time where mistakes were made, this case should not be taken as an indication that the system as a whole was defective.  The Crown accepted that it had a duty to disclose to the accused at any time any information in its possession which would exculpate the accused or undermine the Crown case.  The accused’s representatives for their part had an opportunity to investigate the case which the Crown proposed to bring against him.  They were entitled to precognosce witnesses and they were entitled too, if this was needed, to apply to the Sheriff for this to be done on oath.  It was seldom necessary for an application to be made to the court for a commission and diligence. If this step had to be taken, an explanation had to be given as to why the court should order the haver to produce the documents.  This was because the court’s practice is not to grant such orders unless it is satisfied that it is in the interests of justice to do so.  But this ought not to impose a great burden on the accused or his advisers, as Lord Justice General Rodger pointed out in McLeod at p 80F-G.  The guidance that the court gave in that case remained appropriate and no further general directions were needed.     

23.	The Advocate Depute then drew the Board’s attention to an important change in practice relating to the disclosure of Crown material in cases indicted in the High Court.  This had been brought about by the issuing of a Crown Practice Statement on Disclosure by the Lord Advocate. The background to it was described by the Crown Agent in his General Minute to All Staff No 10/04 dated November 2004, to which the Lord Advocate’s Practice Statement was appended as Annex 1. The Advocate Depute said that this change in practice had already taken effect with effect from 1 January 2005 in respect of all High Court cases. The General Minute states that a pilot scheme at sheriff and jury level is to begin in one area in April 2005, and that it is the Crown’s intention to extend it to all solemn cases by April 2006.  

24.	It is not necessary for the purposes of this judgment to do more than provide a brief summary of what this Practice Statement contains.  It is acknowledged that the Crown has a subsisting duty to provide to the solicitor for the defence information disclosed during the course of the investigation which is likely to be of material assistance to the proper preparation or presentation of the accused’s defence, in accordance with the principles set out in McLeod.  Within 14 days of the accused’s first appearance the defence is to be provided with a copy of a provisional list of all the witnesses made known to the Crown, and where in the course of its preparation any further witnesses are identified who are relevant to the case against the accused details will be provided to the defence as soon as practicable.  This is subject to the qualification that the Crown may require exceptionally to withhold details of individual witnesses in certain cases.  

25.	With regard to statements by witnesses, the following practice is to be followed:
“6. The Crown will, within 28 days of first appearance, provide to the defence such copies of witness statements (excluding precognitions) as are then in the possession of the Crown.

7. The Crown may require, exceptionally, to withhold provision of individual statements of witnesses where:
(i)	it proposes to disclose a statement but further steps are necessary before disclosure is made.  In any such case, the Crown will provide copies of such a statement as soon as practicable.

(ii)	It does not intend to call a witness to speak to the terms or content of a statement and it would not be in the public interest to disclose the statement, for example because of a risk to the life of an individual or individuals, or a serious risk that other investigations or proceedings would be prejudiced by that disclosure, but where a statement is not disclosed on public interest grounds, the Crown will, where possible, provide a redacted statement as described in paragraph 10 and, in any event, ensure that it complies with its obligations of disclosure in accordance with the principles set out in McLeod v HMA.”

26.	Paragraph 8 states that, where additional statements from witnesses are received by the Crown in the course of its preparation or investigation of the case, or statements are received from any further witnesses who are relevant to the case against the accused and who have not previously been provided to the defence, they too are to be provided as soon as practicable.  Paragraph 10 states:
“In any case where witness statements are provided to the defence it shall be open to the Crown to redact the statement to obscure information of a confidential nature contained within the statement, the disclosure of which the Crown considers not to be necessary for the preparation of the defence (eg information tending to identify the home address of a witness who fears intimidation), but any redaction shall be obvious on the face of the statement.” 

Paragraphs 11 and 12 deal with the provision to the defence of copies of documentary evidence which would appear to be of material assistance to the defence and, upon service of the indictment, of details as to where any previously undisclosed productions may be collected or examined.  Paragraph 13 states that the Crown will review material developments regularly during its investigation and preparation of the case any matters which should be brought to the attention of the defence.

27.	The Lord Advocate has clearly gone a long way in this Practice Statement towards eliminating the risk that there will be a failure to fulfil the obligation of disclosure in individual cases.  So long as decisions as to whether a witness statement should or should not be disclosed was left to the judgment of individuals there was a risk that the duty of disclosure would not be applied uniformly or at all.  As Lord Justice General Rodger said in McLeod at p 79F-G, the Scottish system of criminal procedure proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused.  Lord Hamilton said at p 83A-B that the duty was to disclose information that was significant to an indicated line of defence or was likely to be of real importance to any undermining of the Crown case or to any casting of reasonable doubt on it.  The emphasis which the court placed on this as being a duty to provide the information was important.  But, as the court could do no more than give general guidance on this issue, the precise limits of this duty remained unclear.  It was left to the decisions of individuals on a case by case basis as to whether the content of a statement by a Crown witness fell within this broadly defined category.

28.	This approach meant that there was a risk of police statements being withheld which could have been of material assistance to the accused had they been available at the trial.  Taken on its own, a statement might be thought at the stage of investigation and preparation to have contained nothing of any real importance.  The importance of what was said, and of what was not said, might not be apparent until the trial.  That indeed appears to have been the cause of the trouble in this case.  It was not until Pamela Ritchie was giving her evidence that it became apparent for the first time that she was departing from what she had said in her police statements.  The fact that she was likely to do this may not have been anticipated in this case, but such departures are far from being a wholly unusual phenomenon.  The change in practice recognises that the primary rule is that all witness statements, other than precognitions, in the possession of the Crown must be disclosed.  There is no duty on the defence to ask for them.  It also recognises that there may be cases where a statement may need to be withheld, or to be redacted, in the public interest.  But these cases are rightly treated as exceptions which the Crown will need to be in a position to explain to the court in the event that an application for disclosure is made by the defence.

29.	As the Crown Agent explained in his General Minute to All Staff, this change in practice was made in the light of recommendations on disclosure which were made by Lord Bonomy in his Report Improving Practice: 2002 Review of the Practices and Procedure of the High Court of Justiciary.  They should be seen in that context.  It ought no longer to be necessary for a motion to be made for a commission and diligence to recover the police statements of witnesses who are on the Crown list, as the defence have the right to expect these statements to be made available as a matter of course in accordance with the Statement of Practice.  If necessary, the defence will have the opportunity of obtaining confirmation from the Crown that a full disclosure has been made at the preliminary hearing under section 72(6)(b)(iv) of the Criminal Procedure (Scotland) Act 1995, as inserted by section 1(3) of the Criminal Procedure (Amendment) (Scotland) Act 2004: see para 8.13 of Lord Bonomy’s Report.  In the event that an order is needed from the court for a commission and diligence, as may still be the case where the defence seeks the recovery of parts of the criminal records of Crown witnesses, McLeod will continue to provide the guidance that is needed as to the approach that should be adopted: see Maan v H M Advocate, 2001 SLT 408.  Full weight will, of course, now have to be given to the accused’s right to a fair trial under article 6(1) of the Convention, to the significance of which I now turn.

The article 6(1) Convention right 
30.	In Edwards v United Kingdom (1992) 15 EHRR 417 the fact that the elderly victim of the robbery had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the defence.  One of the police witnesses said that no fingerprints were found at the scene of the crime, whereas in fact two fingerprints were found which later turned out to be those of the next door neighbour who was a regular visitor to the house.  In para 36 of its judgment the European Court said that it considered that it was a requirement of fairness under article 6(1) that the prosecution authorities disclose to the defence all material evidence for or against the accused, and that the failure to do so in that case gave rise to a defect in the trial proceedings.

31.	In Rowe and Davis v United Kingdom (2000) 30 EHRR 1, para 60 the European Court expanded on this aspect of the fair trial guarantee in this way:
“It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence.  The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party.  In addition article 6(1) requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused.”
The issue arose in that case because the prosecution decided without informing the trial judge to withhold certain relevant information from the defence on grounds of public interest.  The court said in para 63 of its judgment that such a procedure, whereby the prosecution itself attempts to assess the importance of concealed information to the defence and weigh this against the public interest in keeping the information secret could not comply with the requirements of article 6(1) in the absence of scrutiny of the withheld information by the trial judge.

32.	The European Court’s jurisprudence on this issue was taken one stage further in Edwards and Another v United Kingdom, application nos 39647/98 and 40461/98 (2003), 15 BHRC 189, in which the prosecution had applied successfully to the judge at an ex parte hearing to withhold material evidence from the defence on grounds of public interest immunity.  In para 52 of its judgment the court repeated what it had said in Rowe and Davis v United Kingdom, para 60.  It then went on to say this:
“53.  The entitlement to disclosure of relevant evidence is not, however, an absolute right.  In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused.  In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.  None the less, only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6(1).  Furthermore, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (Jasper v UK [2000]  ECHR 27052/95 at para 52).

54.	In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them.  In any event, in many cases, including the present, where the evidence in question has never been revealed, it would not be possible for the court to attempt to weigh the public interest in non-disclosure against that of the accused in having sight of the material.  It must therefore scrutinise the decision-making procedure to ensure that, as far as possible, the procedure complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (Jasper v UK [2000]  ECHR 27052/95 at para 53).”

These observations were repeated in Dowsett v United Kingdom (2003) 38 EHRR 845, paras 42-43 where the applicant complained that he had been deprived of a fair trial because the prosecution had failed to disclose all the material evidence in their possession. 

33.	All but the first of these decisions postdate the decision in McLeod.  I would take from them the following propositions.  First, it is a fundamental aspect of the accused’s right to a fair trial that there should be an adversarial procedure in which there is equality of arms between the prosecution and the defence.  The phrase “equality of arms” brings to mind the rules of a mediaeval tournament - the idea that neither side may seek an unfair advantage by concealing weapons behind its back.  But in this context the rules operate in one direction only.  The prosecution has no Convention right which it can assert against the accused.  Nor can it avoid the accused’s Convention right by insisting that the duty does not arise unless the accused invokes it first.   Secondly, the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused.  For this purpose any evidence which would tend to undermine the prosecution’s case or to assist the case for the defence is to be taken as material.  Thirdly, the defence does not have an absolute right to the disclosure of all relevant evidence.  There may be competing interests which it is in the public interest to protect.  But decisions as to whether the withholding of relevant information is in the public interest cannot be left exclusively to the Crown.  There must be sufficient judicial safeguards in place to ensure that information is not withheld on the grounds of public interest unless this is strictly necessary.

34.	There is no question in the present case of Pamela Ritchie’s police statements having been withheld from the defence on the grounds of public interest.  The Board was not told why these statements were withheld, but the Advocate Depute did not seek to argue that there were good grounds for doing so.  It seems likely that this was due simply to an error of judgment on the part of the prosecuting authorities – the kind of error of judgment that the Lord Advocate’s Statement of Practice is designed to eliminate.  Whatever the reason it resulted in an inequality of arms when the case came to trial.  The prosecution had in its possession statements which could have been used to undermine Pamela Ritchie’s reliability and her credibility.  This was information that was plainly likely to be of material assistance to the defence, as Pamela Ritchie’s evidence was essential to the proof the Crown case.  It makes no difference to the fairness of the trial that the Advocate Depute who was conducting the trial was under the same disadvantage as the appellant’s solicitor advocate, as he too did not have access to the contents of these statements.  Nor can the fact that the statements were not made available be attributed to any failure in duty on the part of the defence.  The duty of disclosure was on the Crown, and it was a breach of that duty for these statements not to have been provided to the defence before the trial.

35.	It is impossible therefore to say that the appellant’s defence was not prejudiced by what happened in this case.  It was prejudiced because his solicitor advocate was not in a position to cross-examine Pamela Ritchie when she changed her evidence on the basis of what she said and what she did not say to the police when she was being interviewed by them after the incident.  Nor can it be said that the appeal court removed the unfairness.  This is because it took the view that the fact that the police statements were not produced before the trial was not due to any breach of duty on the part of the Crown and that it was up to the defence to decide whether or not to ask for them: 2004 SLT 794, 798, paras 15 and 16.

36.	For these reasons I would hold that the appellant’s complaint that there was a breach of his article 6(1) Convention right to a fair trial is well founded.  In my opinion the act of the Lord Advocate in bringing these proceedings and seeking a conviction without having disclosed these statements was incompatible with the appellant’s right to a fair trial.

Remedy
37.	As I said at the outset, section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the Convention rights. As Lord Rodger of Earlsferry observed in R v HM Advocate, 2003 SC (PC) 21, 73, para 155, it is not open to the court if this subsection is breached to assess what the consequences of any particular violation of an individual’s Convention rights should be. Parliament has decided that members of the Scottish Executive, including the Lord Advocate, should have no power to do acts that are incompatible with any of the Convention rights.  In this case that means that the Lord Advocate, having proceeded to trial without having made Pamela Ritchie’s statements available to the defence as article 6(1) requires, had no power to continue with it and seek a conviction without making these statements available to the defence as soon as it became apparent that she was changing her evidence.  But it could equally well be said in this case that the failure to disclose the statements was a failure to act by the Lord Advocate which was incompatible with the appellant’s article 6(1) Convention right: see para 1(e) of Schedule 6 to the Scotland Act 1998.  The right to a fair trial is an absolute right which cannot be compromised: Brown v Stott, 2001 SC (PC) 43, per Lord Bingham of Cornhill at p 60A-B; see also p 74B.  If the accused has not had a fair trial the verdict cannot stand and the conviction must be quashed.

38.	In my opinion the appeal should be allowed.  I consider that it would be appropriate in this case for the Board, under article 4(1)(a) of the Judicial Committee (Powers in Devolution Cases) Order 1999, SI 1999/1320, to exercise the powers which have been given to the High Court of Justiciary by section 118 of the Criminal Procedure (Scotland) Act 1995 by setting aside the verdict of the trial court and quashing the conviction on the ground that there was a miscarriage of justice.  I would remit the case to the High Court of Justiciary to consider whether authority should be granted to the Crown to bring a new prosecution in accordance with section 119 of that Act.
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Lord Rodger of Earlsferry

39.	I have had the advantage of considering the judgment of my noble and learned friend, Lord Hope of Craighead, in draft.  I agree with it and with his proposal that the appeal should be allowed.  But, in view of the importance of the matter, I add some short observations of my own.

40.	The appellant was convicted of assaulting the complainer by striking him on the head with a hammer and a pair of scissors and repeatedly punching him on the head, all to his severe injury, permanent disfigurement and permanent impairment.  Apart from the complainer himself, the principal Crown witness was Pamela Ritchie who was his girlfriend at the time.  In the statement which she gave to DC Gillan at Glasgow Royal Infirmary in the early hours of Sunday morning, shortly after the assault, she said that she had seen the appellant stab the complainer with a pair of kitchen scissors.  She also said that, while she had been in the ambulance with the complainer, he had told her that the appellant had hit him on the head with a hammer but she herself had not seen this.  In a further statement given to the police at Kirkintilloch police station two days later, she confirmed that she had seen the appellant stab the complainer with the scissors. It is clear that, when precognosced by the Crown, Ms Ritchie adhered to the position that she had not seen the appellant hit the complainer with a hammer.

41.	When she came to give evidence for the Crown at the appellant’s trial, however, Ms Ritchie said that she had actually seen the appellant hitting the complainer over the head with a hammer.  When the advocate depute asked whether she had mentioned a hammer to the police, she said that she could not remember.  In cross-examination she continued to say that she had seen the appellant strike the complainer with a hammer and, inter alia, she said that when she gave a statement to the police at the hospital, she told them that the attack consisted of a blow with a hammer and blows with scissors.  She rejected as incorrect a suggestion that she did not mention a hammer.  In re-examination the advocate depute was able to put to Miss Ritchie that, in the statement which she gave at Kirkintilloch police station on the Tuesday, there was nothing about a hammer.  She said that she could not remember.  If she had been asked about it, she would have mentioned the hammer, but if she had not been asked about it, she would not have mentioned it.

42.	The Crown had not provided the defence with copies of either of Ms Ritchie’s statements.  The agreed position both in the appeal court and before the Board was that, while Ms Ritchie’s two statements to the police were in the possession of the Crown at the time of the trial, the trial advocate depute had neither statement with him in court.  On the other hand, from the terms of his re-examination of Ms Ritchie, one might tend to infer that he must have had access to some version of her second statement.  What matters, however, is that neither he nor the defence solicitor advocate had the statement which Ms Ritchie had given to DC Gillan at the Royal Infirmary when she said that she had not seen the appellant strike the complainer with the hammer, but had heard about this from the complainer.

43.	If the appellant’s solicitor advocate had had a copy of that statement, he would have been able to use it to considerable effect in challenging the reliability, and perhaps also the credibility, of Ms Ritchie’s evidence that she had seen the appellant hitting the complainer with the hammer.  That would in turn have provided a platform for challenging her evidence as a whole.  Therefore the conduct of the appellant’s defence was materially affected by the fact that his solicitor advocate did not have access to this statement when cross-examining Ms Ritchie.

44.	As the relevant passage in the Crown Office and Procurator Fiscal Service Book of Regulations shows, at the time when the appellant was indicted for trial the Crown did not routinely provide the defence with copies of the statements given to the police by civilian witnesses who were to be called for the Crown.  And, so long as Ms Ritchie said that she had not seen the appellant strike the complainer with a hammer, there was nothing in her statement at the Royal Infirmary which tended to undermine or to cast doubt on the Crown case.  But the moment that she gave evidence in the witness box that she had seen the appellant hitting the complainer with the hammer, the position changed:  the defence could then have led DC Gillan to say that at the Royal Infirmary Ms Ritchie had told him that she had not seen this.  In other words, from that moment onwards, the statement constituted “material evidence for ... the accused”.  It was therefore a requirement of fairness under article 6(1) of the European Convention that the advocate depute should disclose it to the defence: Edwards v United Kingdom (1992) 15 EHRR 417, 431–432, para 36.

45.	As the transcript shows, while Ms Ritchie was giving evidence, both sides clearly had reason to think that she had changed her position in this very important respect.  But, probably because the advocate depute did not have the first statement in his precognition volume and the appellant’s solicitor advocate did not ask him for it, the proceedings continued without either of them having a copy of it.  Undoubtedly, the advocate depute could easily have obtained copies of the statement and could have passed one to the defence.  At most, there would have had to be a short adjournment.  That being so, in the circumstances that had arisen, the obligation on the advocate depute, as the representative of the Lord Advocate, was indeed to obtain a copy and provide it to the defence.  In that way the appellant’s solicitor advocate – and indeed the advocate depute himself – would have been in a position to test Ms Ritchie’s evidence that she had seen the appellant strike the complainer with a hammer.  While these things are doubtless easier to see in leisurely retrospect than in the heat of a trial, there is no avoiding the conclusion that, by failing to obtain the statement and to provide a copy to the defence, the advocate depute infringed the appellant’s article 6(1) Convention right.

46.	In giving the judgment of the appeal court, the Lord Justice General appeared to suggest, 2004 SLT 794, 798, para 16, that, because the solicitor advocate did not ask for the statement, the advocate depute was under no obligation to provide it.  The Crown’s article 6(1) duty to disclose evidence in favour of the defence does not, however, depend on any request being made by the defence.  That duty subsists unless, unusually, it is waived by the defence.  There was no waiver in this case.  The appeal court therefore erred when they concluded that there was no breach of the Crown’s duty of disclosure.  Given its potential significance for the defence, the failure to provide the statement can also be said to have rendered the appellant’s trial as a whole unfair for purposes of article 6. The appeal against conviction must accordingly be allowed.

47.	The facts of the case raise a broader issue, however.

48.	If Ms Ritchie had adhered to her precognition and to the terms of her statement at the Royal Infirmary, 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.  Nevertheless, the obligation of the Crown under article 6(1) is to “disclose to the defence all material evidence for or against the accused …”: Edwards v United Kingdom (1992) 15 EHRR 417, 431–432, para 36.  On any view, the statements which Ms Ritchie gave the police contained material evidence against the appellant – they were, after all, the basis on which she was precognosced with a view to giving evidence for the Crown at the trial.  More generally, the statements of all the witnesses in the list attached to an indictment or in any supplementary notice served under section 67 of the Criminal Procedure (Scotland) Act 1995 must contain material evidence against or, in some cases, in favour of the accused.  Similarly, if the defence give notice that they intend to lead a witness and the Crown have a statement from him, then that statement is likely to contain material evidence for the accused.

49.	It follows that the police statements of all the witnesses who are to be called at the trial are to be regarded as containing material evidence either for or against the accused.  The Crown are, accordingly, under an obligation, in terms of article 6(1), to disclose their statements to the defence.  This helps to ensure that there is equality of arms between the two sides.  (Indeed the absence of any reciprocal obligation on the part of the defence may tip the scales in their favour in this respect.)  For the avoidance of doubt, the Crown’s obligation of disclosure as described in Macleod v HM Advocate (No 2) 1998 JC 67 should be understood as requiring the disclosure of these statements.  It follows that, in so far as the Crown Practice Statement on Disclosure (September 2004) requires the Crown to provide the statements of these potential witnesses, it can properly be regarded as fulfilling this aspect of their obligation of disclosure under article 6(1).  For present purposes it is unnecessary to consider situations in which the public interest will justify the non-disclosure of such statements, or how such cases should be handled.

50.	On this broader approach, it can be seen that the obligation of the Crown in this case was actually to disclose the statement of Ms Ritchie to the defence in time for them to prepare for the trial.  Had that been done, 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.
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Baroness Hale of Richmond

51.	I too am in complete agreement with the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry and for the reasons that they give would make the orders which they propose.
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Lord Carswell

52.	I have had the advantage of reading in draft the opinion of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry.  For the reasons which they have given I too would allow the appeal and make the order which they propose.