McDonald v. Her Majesty's Advocate (The High Court of Justiciary Scotland) [2008] UKPC 46 (16 October 2008)

Privy Council Appeals No 23, 24 and 26 of 2008		

John McDonald 								Appellant

v.

Her Majesty’s Advocate	Respondent

and

Brendan Christopher Dixon 						Appellant

v.

Her Majesty’s Advocate	Respondent

and

Richard Blair 								Appellant

v.

Her Majesty’s Advocate	Respondent

FROM

THE HIGH COURT OF JUSTICIARY 
SCOTLAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 16th October 2008

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Present at the hearing:-

	Lord Hope of Craighead
	Lord Bingham of Cornhill
	Lord Scott of Foscote
	Lord Rodger of Earlsferry
	Lord Neuberger of Abbotsbury
	
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Lord Hope of Craighead

1.	These three appeals raise issues about the duty of disclosure that rests on the Crown under article 6(1) of the European Convention on Human Rights by which every accused person is guaranteed a right to a fair trial.  They have come before the Board as raising devolution issues because section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive, which includes the Lord Advocate, has no power to do any act so far as it is incompatible with any of the rights and freedoms in the Convention.  In each case the appellant was convicted of murder and has appealed against his conviction.  In each of these appeals petitions have been lodged for the recovery of documents from the Crown.  Associated with those petitions devolution minutes were also lodged in the appeal process.  It is the issue raised in those minutes that the Board has been asked to consider under para 13 of Schedule 6 to the 1998 Act.

The facts

(a) McDonald

2.	The appellant John McDonald went to trial at the High Court of Justiciary in Glasgow in August 2005.  He was charged with murder, assault and three contraventions of the Firearms Act 1968.  In 1 September 2005 he was convicted of all charges against him. On 22 September 2005 he was sentenced to life imprisonment with a punishment part of 18 years in respect of the charge of murder.  He was sentenced to 2 years imprisonment concurrently on the assault charge and to 4 years, 3 years and 7 years imprisonment concurrently in respect of the contraventions of the Firearms Act 1968.  On 23 December 2005 he lodged a note of appeal against his conviction.  There was a single ground of appeal.  It related to the evidence of a witness who had been referred to at the trial as witness “P”.  His identification of the appellant was essential to the Crown case.  The ground of appeal, after giving a brief description of his evidence, states:

“On the basis of the nature of identification by reference only to the perpetrator’s eyes, and on the basis of the manner of the giving of his evidence, no reasonable jury properly directed ought to have attached sufficient weight to that evidence to find a sufficiency of credible and reliable identification that would allow them to convict the appellant.”

Leave to appeal on this ground was granted on 29 March 2006. 
 
(b) Dixon

3.	The appellant Brendan Christopher Dixon went to trial at the High Court of Justiciary in Kilmarnock in February 2005.  He was charged, along with two co-accused, with murder and an attempt to defeat the ends of justice.  On 1 March 2005 he was convicted on both charges.  He was sentenced to life imprisonment with a punishment part of 25 years on the charge of murder.  He was sentenced to five years imprisonment concurrently on the charge of attempting to defeat the ends of justice.  On 30 June 2005 he lodged a note of appeal against conviction and sentence.  His grounds of appeal are, in summary: (1) that the trial judge wrongly refused a submission that there was no case to answer; (2) that the directions given by the trial judge in relation to corroboration were misconceived; (3) that the trial judge failed to direct the jury in relation to certain forensic evidence said to raise a reasonable doubt about the appellant’s guilt; (4) that the trial judge displayed apparent bias in his treatment of certain witnesses led in support of the appellant’s special defence of alibi; and (5) that the trial judge failed to direct the jury that, if the evidence led in relation to the appellant’s alibi raised with them a reasonable doubt, they were bound to acquit.  Leave to appeal on these grounds was granted on 14 February 2006.

(c) Blair

4.	The appellant Richard Blair went to trial at the High Court of Justiciary in Glasgow in April 2005.  He was charged, along with a number of co-accused, with a number of offences including murder.  On 29 April 2005 he was convicted of murder and sentenced to life imprisonment with a punishment part of 15 years.  On 19 August 2005 he lodged a note of appeal against his conviction.  His grounds of appeal are, in summary: (1) that the trial judge erred in law in failing to allow a photograph and an associated list of additional witnesses for the defence to be lodged late; (2) that the trial judge wrongly refused a submission that the appellant had no case to answer, on the basis that there was insufficient evidence of identification to entitle the jury to convict the appellant; and (3) that the trial judge had wrongly, in assessing the sufficiency of the evidence against the appellant, taken into account a statement admitted in evidence under section 259 of the Criminal Procedure (Scotland) Act 1995 taken from a Crown witness named Paul Wilson.   Leave to appeal on these grounds was granted on 22 November 2005.

The proceedings in the Appeal Court

5.	On 9 May 2007 a procedural hearing in the appeals of McDonald and Dixon was held before Lord Nimmo Smith.  Counsel for the appellants stated that the Crown had been declining requests for statements and previous convictions that would have been available before the trial.  He asked for them to be produced and submitted that it was not necessary for him to lodge a specification of documents as the Crown had a duty to disclose them.  The advocate depute stated in reply that the Crown would oppose a request for what he described as a blanket disclosure of all statements, reports and other documents.  It was the Crown’s view that a petition for the recovery of documents, if appropriate in wide terms, should be lodged and considered by the court.  The consideration of the matter was continued to 6 June 2007 to enable the appellants to lodge their petitions, reserving for discussion at that hearing counsel’s opinion that a petition was unnecessary.  On 5 June 2007 petitions for the recovery of documents from the Crown were lodged on behalf of both McDonald and Dixon.  The specifications attached to their petitions  were in these terms:

“1. All material in the possession or under the control of the Lord Advocate which ought to have been (and ought to be) disclosed in terms of his obligation under article 6(1) when read with section 57(2) of the Scotland Act 1998.
2. Failing principals, drafts, copies or duplicates of the above whether in paper or in digital form.”

Copies of the statements provided by P’s mother were disclosed to the defence on 29 August 2007.  On 8 November 2007 copies of the statements provided by P’s sister and younger brother were disclosed to the defence on 8 November 2007.

6.	On 5 June 2007 the appellants McDonald and Dixon also lodged devolution minutes in which they averred that the Crown had an obligation to disclose to the defence any information which might tend to exculpate them or undermine the case against them; that as there was no means by which the court could ascertain for itself whether their Convention rights were being respected there could not be said to be adequate judicial safeguards in place to ensure compliance with the right in question; and that in any event there was reason to suppose that the Lord Advocate had not discharged the obligation laid on her by article 6(1).  In the light of these averments the following propositions were set out:

“In the circumstances a fair hearing cannot be guaranteed.
Separatim.   There is in any event a material risk that any future hearing would not be fair.
Separatim.  The failure of the Crown to make known the system operated to respect the right of disclosure under article 6(1) means that to seek to support the conviction would be an abuse of process.
For the Crown to continue with the prosecution and seek to support the conviction would be for the Lord Advocate to act incompatibly with the Minuter’s right to a fair hearing guaranteed by article 6(1) of the European Convention on Human Rights.  Such an act would be ultra vires.  Reference is made to s 57(2) of the Scotland Act 1998.”

7.	On 17 July 2007 the appellant Blair lodged a petition for the recovery of documents, all of which are said to relate to Paul Wilson.  The specification attached to his petition was in these terms:

“1.  All  documents showing or tending to show the mental health problems of Mr Wilson, and in particular any examples of how his health problems affects his behaviour.
2.  All documents showing or tending to show whether the mental health problems of Mr Wilson affected his ability or capacity to tell the truth, and whether he was considered to be truthful.
3.  All documents showing or tending to show whether the mental health problems of Mr Wilson made him a suggestible individual.
4.  All documents showing or tending to show whether or not Mr Wilson would have been able to give a coherent account of an incident which had occurred sometime in the past.
5.  All documents showing or tending to show what information was passed to the Crown in connection with Mr Wilson’s health in connection with the case and in particular in respect of the s 259 notice.”

On 18 July 2007 the Appeal Court granted warrant for the service of this petition on a number of parties who were potentially interested in the application.  

8.	A hearing on the petitions for recovery by all three appellants took place in the High Court of Justiciary before the Lord Justice General (Hamilton), Lord Nimmo Smith and Lord Philip on 23 and 24 August and 13 and 14 November 2007.  On the last day of the hearing the appellant Blair too lodged a devolution minute.  His minute was in the same terms as that which had been lodged by the appellants McDonald and Dixon. 

9.	On 21 December 2007 the court continued the petition by the appellant Blair to allow him the opportunity of addressing the court on the calls in his specification.  It refused the petitions by the appellants McDonald and Dixon.  It also refused to allow the devolution minutes by all three appellants to be received.  It rejected the Lord Advocate’s submission that the appellants were barred by acquiescence from raising devolution issues at that stage.  But it held that the appellants did not have an unqualified right to have their minutes received.  The question turned on whether in appellate proceedings following conviction on indictment the applicable provision of the Act of Adjournal (Criminal Procedure Rules) 1996 (SI 1996/513) (as amended) was rule 40.2 or 40.4.  The applicable provision was rule 40.2, so it was not open to the appellants to raise a devolution issue unless the court, on cause shown, otherwise determined.  As no such determination had yet been made, it fell to the court to exercise its discretion.  

10.	   Giving its reasons for declining to exercise its discretion in the appellants’ favour, the court said at 2008 SLT 144, para 67:

“In the course of counsel for the appellants’ argument, although submissions were made concerning a ‘fair trial’ and its alleged denial, no reference was made to the terms of any of the devolution minutes.  Nor was any argument directly related to these terms.  Indeed counsel for the appellants, relying upon his contention (unsound, in our view) that cause did not require to be shown, did not articulate any cause for receiving these minutes at this time.  His contention came to be the tautological proposition earlier noticed, namely that the Crown had a duty to disclose what it had a duty to disclose.  That cannot, properly, be described as an ‘issue’ at all.  In deciding whether to exercise our discretion we take into account the relative lateness of the tendering of these minutes and the lack of real substance, in our view, of the arguments presented.  And we are not persuaded that the circumstances justify a jurisdiction being invoked which might render competent an appeal to the Privy Council.  Essentially the issue is a procedural one, namely, whether the court should exercise its power to make an order for recovery and, if so, on what terms.  That is properly a matter for this court exclusively.  In these circumstances the devolution minutes ought not to be received.”   

Competency of the proceedings before the Board

11.	 Following the decision by the High Court of Justiciary to refuse to allow the devolution minutes to be received the appellants sought special leave to appeal against its determination to your Lordships’ Board.  On 14 April 2008 special leave to appeal was granted.  The appeals were heard by the Board on 28 and 29 July 2008.

12.	The observations by the High Court of Justiciary in para 67 of its opinion raise the question whether these appeals are competent in view of the fact it refused to allow the devolution minutes to be received.  The Board was assisted by written submissions on this matter by counsel for the appellants and for the Crown by the Solicitor General.  The Advocate General declined to make written submissions on it.  A decision on the point was reserved until the end of the argument.  

13.	The jurisdiction of the Judicial Committee of the Privy Council to hear appeals against a determination of a devolution issue by a court of two or more judges of the High Court of Justiciary is set out in para 13 of Schedule 6 to the Scotland Act 1998.   As was pointed out in Follen v H M Advocate 2001 SC (PC) 105, para 9, the Judicial Committee has no original jurisdiction to consider devolution issues under para 13 of Schedule 6.  In criminal cases its jurisdiction is entirely dependent upon there having been first a determination of the issue which the appellant seeks to raise before the Committee by two or more judges of the High Court of Justiciary.  In that case however counsel expressly departed from an argument under reference to article 6 of the Convention which he had presented to the trial judge, and leave to appeal to the Board was refused by the judges of the High Court of Justiciary because no devolution issue had been raised in their court.  The Board held that, as there had been no determination of the issue by the judges of that court, the appellant could not resurrect it by means of an appeal to the Judicial Committee under para 13 of Schedule 6.  

14.	The situation in this case is different.  A devolution issue was raised before the judges of the High Court of Justiciary in connection with the applications for the recovery of documents.  The appellants now wish to have the same issue considered by the Judicial Committee.  The question is whether the Committee has been deprived of its jurisdiction to hear the appeals by the judges’ decision under rule 40.2 of the Act of Adjournal not to allow the appellants’ devolution minutes to be received.  In my opinion their decision did not have that effect.   

15.	The first point that must be made is that the rules that are set out in the Act of Adjournal do not apply to, nor do they regulate proceedings in, the Judicial Committee.  It has its own rules, which do not stipulate that the receipt of a devolution minute by the lower court is a prerequisite of the hearing of an appeal against the determination of a devolution issue by the Board.  The fact that the judges of the High Court of Justiciary decided not to allow the devolution minute does not conclude the matter so far as these proceedings are concerned.  The Board will always pay careful attention to the reasons why the judges did not permit the issue to be raised in their court, bearing in mind that they are the masters of their own procedure.  Normally a failure to observe the procedural rules of the lower court which that court has decided not to excuse will have the same consequences before the Board.  But special leave may nevertheless be given if there is a point of general public importance that needs to be considered by the Judicial Committee. 

16.	The second point is that a decision by two or more judges of the High Court of Justiciary not to hear and determine a devolution issue that has been brought before it can be treated as a determination of the issue for the purposes of para 13 of Schedule 6.  In C v Miller 2004 SC 318 an Extra Division of the Court of Session held that the word “determination” implied the making of a decision upon the merits of a devolution issue by the court, and that as no such decision had been made where the court had decided not to grant a motion for intimation of the issue under rule 25A.3(1) of the Rules of the Court of Session 1994 an application under para 13 of Schedule 6 for leave to appeal to the Judicial Committee was incompetent.  All that needs to be said about that decision is that it is not binding on the Judicial Committee.  The word “determination” is capable of being given a wider meaning than the Extra Division gave to it.  It can, of course, mean the making of a decision on the merits.  But it can also include any decision which disposes of the issue in the lower court, including a refusal to consider the issue.  The importance of preserving the avenue of seeking special leave to appeal from the Judicial Committee in such a case is indicated by the judges’ comment in para 67 of their opinion that they were not persuaded that the circumstances justified a jurisdiction being invoked which might render competent an appeal to the Privy Council.  The Extra Division in C v Miller, para 11, made a similar comment when they rejected the appellant’s submission that the Judicial Committee ought to be given the opportunity to decide whether to entertain the devolution issue which that court had refused to entertain.  I am not to be taken as indicating that these decisions were taken simply to prevent the issue being determined by the Judicial Committee.  If they had been, they would have amounted to an abuse of the system which the Judicial Committee must be able to correct.  But the decisions were undoubtedly based upon a misconception.  It is for the Judicial Committee, not for the lower court, to decide whether special leave to appeal should be given.  It is also for the Judicial Committee to decide whether it has jurisdiction to entertain an application for special leave.   

17.	The third point, which determines the question whether special leave should be given in this case, is that the judges of the High Court of Justiciary did express a view about the merits of the issue. It is plain from the reasons given in para 67 that this formed part of their decision not to allow the devolution minute to be received.  The appellants’ contention was, the court said, tautological and the issue which they sought to raise could not properly be described as an issue at all.  It is open to the Judicial Committee to take a different view on that matter and, if it is persuaded that the issue that the appellants sought to raise in the High Court of Justiciary was a devolution issue and is the same issue as that which they now wish to raise before the Board, to determine that issue by way of an appeal against the decision of the High Court.

18.	The issue that the appellants wish to raise has now been focussed in the Statements of Case that have been lodged on their behalf.  The issue, they submit, involves a question as to whether an act or failure to act by the Lord Advocate is incompatible with their Convention rights: see section 57(2) of the Scotland Act 1998.  The proposition which they seek to advance is that they would be denied the fair hearing of their appeals to which they are entitled under article 6(1) of the Convention, and the Lord Advocate in seeking to uphold their convictions would be acting in a way which was incompatible with their right under that article, if there is a reasonable basis to apprehend that the Lord Advocate’s duty of disclosure has not been complied with.  They submit that, as there is no way that those acting for the appellants or the court can satisfy themselves that the duty has been discharged, it must follow that there is a reasonable basis for the apprehension.  

19.	The issue, as it was presented to the Board by Miss Scott QC for the appellants in argument, is essentially one of transparency.  The obligation to disclose itself is not in doubt.  In Sinclair v H M Advocate 2005 SC (PC) 28, para 49 Lord Rodger of Earlsferry said 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 and that the Crown are accordingly under an obligation to disclose them to the defence.  The problem lies in the performance of that obligation – how to remove any reasonable apprehension there may be that it is not being performed by those who are responsible for its performance.  I am satisfied that this point, which is the same as that which the appellants sought to raise in the High Court of Justiciary, does raise a devolution issue and that the Board ought to deal with it.   

Disclosure in practice

20.	The cultural revolution as to the disclosure by the Crown to the defence of material in its possession can be traced back to McLeod v H M Advocate (No 2)1998 JC 67 when, as had been the practice hitherto, this issue was considered in the context of an application for the recovery of documents.  At the time of that decision the only information that was routinely provided to the defence was the list of witnesses and productions annexed to the indictment.  The duty of disclosure was defined as a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused:  per Lord Justice General Rodger at p 79G.  But, while it was open to the defence to apply for an order for the recovery of documents that the Crown were under a duty to disclose, it had to aver a sufficient basis to justify the making of such an order by the court and show that it would be likely to be of material assistance to the proper preparation or presentation of the accused’s defence: the Lord Justice General at p 80.  In order to meet these requirements the defence had to know of the existence of the material that it was asking for.  In Maan v HM Advocate 2002 SLT 408 an order for the production of schedules of previous convictions of four witnesses, including one defence witness, was sought. The procurator fiscal refused disclosure, but Lord Macfadyen held that information that would tend to undermine the credibility of a witness was also disclosable and he granted an order for the production of schedules of these witnesses’ previous convictions of crimes of violence and dishonesty.

21.	In the light of these decisions steps were taken by the Crown Office to revise the practice of disclosure to bring it into line with them.  In March 2001 Crown Office Circular 7 of 2001, the circulation of which was as usual restricted to the Crown Office and the Procurator Fiscal Service, stated that all requests for such disclosure should be reported for the instructions of Crown Counsel.  This circular was withdrawn and replaced by Circular No 8/04 in which procurators fiscal were advised to use their discretion in responding to requests for the disclosure of the criminal records of witnesses.  They were told that the defence should be asked to specify in detail the basis on which this information was required in relation to each witness and its relevance to any proposed defence and not to comply with requests for the disclosure in respect of persons who were not to be cited as witnesses.

22.	In February 2002 Alvin Lee Sinclair was convicted on indictment of assault to severe injury. In April 2002 James Holland was convicted on indictment of assault and robbery.  Appeals against these convictions were accompanied by minutes raising as a devolution issue the Crown’s failure to disclose information to the defence.  In Holland’s case there had been a failure to disclose outstanding charges against two Crown witnesses who were eye-witnesses to the incident and a statement by one of them about a remark made to her by the police when she was attending an identification parade.  In Sinclair’s case there had been a failure to disclose the existence and contents of statements made to the police by a Crown witness who was led to corroborate the complainer’s evidence about the assault which were inconsistent with the evidence that she gave at the trial.  The current practice of disclosure was reviewed by the Board when these devolution issues came before the Judicial Committee: Holland v H M Advocate 2005 SC (PC) 3; Sinclair v H M Advocate 2005 SC (PC) 28.  The judgments in those cases were delivered on 11 May 2005.  

23.	As Lord Rodger of Earlsferry observed in Sinclair, para 44, at the time when the appellant in that case was indicted 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.  As already noted, he said in para 49 that the Crown are under an obligation in terms of article 6(1) of the Convention to disclose their statements to the defence.  He added that the Crown Practice Statement on Disclosure in High Court Cases which was set out in a General Minute to All Staff by the Crown Agent in November 2004, which was prepared following Lord Bonomy’s report Improving Practice: 2002 Review of the practices and procedure of the High Court of Justiciary, could properly be regarded as fulfilling this aspect of the Crown’s obligation.  The judgments in Holland and Sinclair were followed by a Minute which was sent as a matter of urgency to all staff on 12 May 2005, and on 22 July 2005 by a General Minute to All Staff No 10/05 in which new guidelines as to the performance of the duty of disclosure were set out.  Further detailed guidance on changes in practice was issued to all staff on 16 and 31 August 2005.  

24.	It is, of course, a feature of such initiatives that, while they may be expected to improve practice in the future, they cannot cure the omissions of the past.  On the other hand, while section 102(2) of the Scotland Act 1998 gives power to the courts to remove the retrospective effect of decisions as to whether an Act of the Scottish Parliament was within its legislative competence or a member of the Scottish Executive had the power to make, confirm or approve a provision of subordinate legislation, it did not give power to the courts to limit the retrospective effect of their decisions about other acts taken by members of the Scottish Executive which they had no power to make under section 57(2) of that Act.  As a result the omissions of the past cannot escape scrutiny.

25.	Pausing there, it should be recalled that the trial of the appellant Dixon was concluded on 1 March 2005 and that the trial of the appellant Blair was concluded on 29 April 2005.  Their trials took place against the background of the Crown’s practice prior to Holland and Sinclair.  McDonald’s trial did not begin until August 2005.  By that date the General Minute No 10/05 had been issued.   

26.	The way the Crown’s practice was being conducted prior to Holland and Sinclair is illustrated by what happened in Dixon’s case.  Prior to his trial his agent indicated to the Crown by letter that he was having difficulty in precognoscing 49 Crown witnesses.  Assistance was given in response to this request, but it was confined to helping him to make contact with the witnesses.  It did not extend to the disclosure of the police statements that were in the possession of the Crown.  In December 2004 the appellant petitioned the Court to obtain the addresses of 47 Crown witnesses and to grant warrant to cite them for precognition on oath.  The petition was withdrawn after the Crown indicated that it was willing to provide the appellant’s agent with their addresses.  In January 2005 the appellant’s agent wrote to the Crown stating that he had all but finished his own preparation of the case but that he was still without statements from 22 witnesses.  The Crown replied that all but four of them had been contacted and given assurances that they would contact the appellant’s agent for precognition.  The appellant’s solicitor had told the Crown in December 2004 that he had precognosced one of these four and obtained a note of evidence of another two.  He was given a home telephone number of the fourth witness.  The defence were not provided with the police statements of any of the civilian witnesses. 

27.	In McDonald’s case the problem of disclosure has concentrated on the evidence of a crucial witness on the issue of identification, witness P, and the question whether police statements taken from other persons might have a bearing on his credibility.  Copies of the statements provided by P’s father, along with numerous statements provided by other witnesses, were disclosed to the defence prior to the trial.  Miss Scott said that the appellant now wished to probe this issue further for the purposes of his appeal.  His agents had requested copies of the statements given by both of P’s parents, but this request did not meet with any response.  This was why the petition for the recovery of documents was presented.  In response to the petition copies of the statements provided by P’s mother were disclosed to the defence on 29 August 2007.  Copies of the statements provided by P’s sister and younger brother were disclosed on 8 November 2007.  But the appellant was still apprehensive that a full disclosure had not yet been made.  Miss Scott said that this apprehension was confirmed when the Lord Advocate informed the judges of the High Court of Justiciary at the hearing on the petitions for recovery that she could not provide them with an absolute guarantee that there had in fact been a full disclosure.

28.	The Board was referred to a number of reported cases to show that instances of incomplete disclosure were still being encountered despite the steps that the Crown had taken to improve practice since Holland and Sinclair: Kidd v H M Advocate 2005 SLT 375; Kelly v H M Advocate 2006 SCCR 9; Johnston v H M Advocate 2006 SCCR 236; McClymont v H M Advocate 2006 SCCR 348; Gair v H M Advocate 2006 SCCR 419 and H M Advocate v B 2006 SLT 1093.  Miss Scott submitted that these cases showed that it was not safe to assume that the appellants’ Convention rights were sufficiently protected by a combination of goodwill on behalf of the Crown and an ad hoc system of conventions and practices.  I need refer to only one of those cases: H M Advocate v B, in which Lord Hardie was the trial judge.  There had been a failure to disclose 12 police statements to the defence.  The Crown accepted that it had been in error in failing to disclose them. Lord Hardie considered whether the situation that had arisen could be remedied.  He took the view that it could not, so on 24 October 2006 he deserted the trial pro loco et tempore.  In para 10 he said that the case had highlighted a series of deficiencies in the practices and procedures of the Crown about disclosure.  In para 14 he said that the blame was attributable to basic failures in the system which called into question the competence with which it had been managed.

The response by the Crown

29.	The decision in H M Advocate v B and the reason that Lord Hardie gave for it met with an immediate response. That was a case where the first appearance of the accused was prior to 1 January 2005 when the Crown Practice Statement of November 2004 became effective.  On 2 November 2006 the Crown Agent informed all staff that cases where the first appearance was before 1 January 2005 were now subject to the full disclosure provisions and that an immediate audit of any such cases in their area should be carried out.  He reminded them that the obligation on the Crown was to disclose all statements in their possession.  Their relevance was not the issue.  The only exception was where there was a requirement to protect material for some operational or other reason of public interest.  He also instructed them to ensure that an adequate system was in place for proving what had been passed to the defence. 

30.	On 10 January 2007 the Crown Agent issued further instructions on the audit and reconciliation of disclosure in High Court cases.  He referred to the fact that a number of cases in the High Court had shown that there was a continuing difficulty in that regard, and that it was necessary to put steps in place to avoid further failures of disclosure.  It was the intention to introduce standardised procedures, but in the meantime a master schedule should be created in every High Court case for the collection of the relevant details and updated as the case proceeded.  On 22 February 2007 a General Minute No 2/07 was sent to all staff informing them that a new joint protocol had been agreed between the Crown Office and Procurator Fiscal Service and the Association of Chief Police Officers in Scotland setting out rules for the disclosure to the defence of statements, previous convictions and outstanding charges.

31.	On 4 February 2008 the attention of all staff was drawn by Crown Office Circular 4/2008 to two new documents setting out the core principles of disclosure and the essential elements of the disclosure duty: The Crown’s Principles of Disclosure and Summary of the Crown’s Approach to Disclosure of Evidence in Criminal Proceedings.  They were informed that a disclosure training programme was to be delivered to all staff over the next three months which would focus on these issues.  On 6 March 2008 all staff were sent details of a Disclosure Manual which contained a statement of national disclosure practice which must be followed by all staff in all areas.  Attention was drawn to the fact that it contained new guidance on reconciliation of statements and criminal history records in High Court cases and criminal history information in regard to police witnesses.  On 2 June 2008 the attention of all staff was drawn to revisions to the Disclosure Manual which contained new guidance on among other matters disclosure in connection with appeals.

32.	On 3 November 2006 the Justice Minister in the Scottish Executive announced that Lord Coulsfield had been appointed to review the law and practice of disclosure with a view to making recommendations that would secure a system that was both practical and effective, recognising the rights of the accused, the interests of victims and witnesses and the wider interests of justice.  In August 2007 he published his report.  In para 7.5 of the report he said that a reliable disclosure system needed to address revelation of disclosable material by the police to the Crown as well as disclosure by the Crown to the defence.  He drew attention to the way this problem has been addressed in England and Wales by providing for the preparation of schedules which imposed a discipline on the handling of information and reduced the risk of error. In para 7.9 he recommended that a system of schedules of material should be introduced in solemn cases, along the lines of the system in England and Wales. On 29 April 2008 the Justice Secretary confirmed on behalf of the Scottish Government that Ministers would introduce legislation to set in statute a clear definition of the legal requirements for disclosure and provide a statutory code of practice detailing the appropriate disclosure procedures and responsibilities.  The Solicitor General said that a team was working on the Bill and that it was planned to introduce the legislation in the Scottish Parliament early in 2009.  The Advocate General invited the Board, pending any such enactment, to indicate the broad lines of a system of disclosure and production which, if adhered to, would satisfy both the defence and the court that disclosure had indeed taken place that was compatible with article 6 of the Convention. 

Discussion

33.	It is plain from the history of the steps which the Crown has taken that its senior managers have addressed the problems that were identified in Holland and Sinclair and in subsequent cases including H M Advocate v B with great care and attention to detail.  The Solicitor General offered the Board his assurance that this was so, and I have no hesitation in accepting it.  I would also accept his point that an absolute guarantee cannot be given in any case that every single piece of information has been disclosed that ought to have been.  The most that can reasonably be expected is (1) that everything that can be done by way of instruction, organisation and training to eliminate the possibility of error has been done, and (2) that an assurance is given in each particular case that to the best of the knowledge and belief of the Lord Advocate or those acting for her there has been full disclosure.  It will, of course, be open to the defence to call for the production of any documents in the possession of the Crown which have not been disclosed if reasonable grounds can be shown for the making of an order for their production, and to the Crown to submit that the public interest justifies their non-disclosure. 

34.	The Solicitor General also said that the recent cases where failures had been identified should not be taken as an indication of a systematic failure.  I am not so sure about that.  But what the history that he has described to us has revealed is a commendable determination by the Crown to eliminate the problems as far as it is humanly possible to do so, and to put in place new systems to minimise the risk of error in the future.  The fact that the Solicitor General was willing to reveal to the Board, and thus to the defence, so much material which until now has not been public knowledge is in itself a token of the Crown’s good faith and its commitment to transparency.  

35.	There was some discussion about the extent of the Crown’s obligation of disclosure in regard to previous convictions and outstanding charges.  The Solicitor General said that Lord Macfadyen’s opinion in Maan v HM Advocate suggested that only those convictions and outstanding charges that were material should be disclosed.  He was not willing to commit himself to an obligation to disclose them all, whether or not they were material, as he had not had an opportunity to examine the article 8 implications for the person concerned if embarrassing or damaging information was revealed which had no bearing on his credibility or reliability.  I too would prefer to leave this issue over until it requires to be decided in another case.  It was not suggested it is a live issue in these appeals.

36.	As for the Advocate General’s suggestion that the Board should indicate the broad lines of a system of disclosure and production which, if adhered to, would satisfy both the defence and the court that disclosure had indeed taken place, I would prefer not to do this either.  There is no need for the Board to do this in view of the steps that are already being taken by the Scottish Ministers to give effect to Lord Coulsfield’s recommendations.  There is obvious good sense in adopting a system such as that which he has recommended.  As he said, it would impose a sense of discipline in the handling of information, and this in turn would reduce the risk of error.  But the details of how this should be done are not matters which the Board should investigate and decide upon.

37.	The question then is what should be done about these appeals.  I leave aside the appellant Blair’s case, as steps are in hand to address the problem to which his grounds of appeal have drawn attention.  As for the cases of the appellants McDonald and Dixon, the Solicitor General admitted that there had been some failures to disclose.  Dixon’s trial, of course, took place before Holland and Sinclair when a very different approach to the issue was being adopted.  So far as appeals in past cases are concerned, of which his is an example, I would only be willing to accept that it would be incompatible with the appellant’s rights under article 6(1) for the Lord Advocate to seek to support the conviction if the appellant was able to demonstrate that there was a reasonable possibility of unfairness as a result of the non-disclosure.  The fact that no point about non-disclosure was taken at first instance when the issues were in the forefront of everyone’s minds is a factor to be taken into account.  Another is the extent to which the grounds of appeal have identified an issue at the trial which is likely to have been affected by non-disclosure resulting in a miscarriage of justice.  Applying these factors to Dixon’s case I would hold that a reasonable possibility of unfairness has not been demonstrated.  In McDonald’s case the Solicitor General was able to give the Board an assurance that, while some information that ought to have been disclosed had not been disclosed before the trial, there had now to the best of his knowledge and belief been full disclosure.  I am willing to accept this assurance, reinforced as it is by the transparency that has now been given to the systems that the Crown have put in place to ensure that the obligation to disclose is fully understood by all staff and adhered to.

Conclusion

38.	I would dismiss the appeal in the appellant Blair’s case.  His petition for the recovery of the documents has been continued so that the particular calls in his specification, which address a clearly identified issue in the appeal, can be considered.  It is not possible at this stage to detect anything in his case which gives rise to a reasonable apprehension that there will not be full disclosure by the Crown in response to the calls approved by the court so far as they relate to any material that is in its possession.   For the reasons that I have just given and for the reasons given by my noble and learned friend Lord Rodger of Earlsferry with which I agree I would dismiss the appeals in the case of the appellants McDonald and Dixon also.
____________________

Lord Bingham of Cornhill

39.	I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hope of Craighead.  I am in full agreement with it, and for the reasons which he gives would also dismiss these three appeals.
____________________

Lord Scott of Foscote

40.	I have had the advantage of reading in draft the opinion that has been prepared by my noble and learned friend Lord Hope of Craighead and am in agreement both with his comments about the jurisdiction of the Privy Council in cases such as these and with his reasons for concluding that each of these appeals should be dismissed. 
____________________

Lord Rodger of Earlsferry

41.	I have had the advantage of considering the judgment of Lord Hope of Craighead in draft.  I agree that, for the reasons he gives, the appeals should be dismissed.  Since the points at issue are of general importance, I add some observations of my own.  In doing so, I gratefully adopt his account of the facts and issues in the various appeals.

42.	The Board has jurisdiction to hear an appeal against a determination of a devolution issue by a court of two or more judges of the High Court of Justiciary, provided that the court grants leave or the Board grants special leave:  section 98 of, and para 13 of Schedule 6 to, the Scotland Act 1998 (“the 1998 Act”).  For this purpose, the term “devolution issue” includes a question whether a purported or proposed exercise of a function by the Lord Advocate, as a member of the Scottish Executive, would be incompatible with any of the Convention rights, and a question whether a failure to act by the Lord Advocate is incompatible with any of the Convention rights:  para 1(d) and (e).

43.	All three appeals arise out of petitions presented to the appeal court seeking a commission and diligence for the recovery of all material in the possession of, or under the control of, the Lord Advocate which ought to have been (and ought to be) disclosed in terms of her obligation under article 6(1) when read with section 57(2) of the 1998 Act.  From the minute of the procedural hearing on 9 May 2007 it appears that the petitions were lodged in response to an argument for the Crown that a petition, “if appropriate in ‘wide terms’, should be lodged and considered by the court.”  I shall come back to the nature of the petitions, but it is sufficient at present to notice that, in the case of Mr McDonald, for example, the petition was lodged with the court on 5 June 2007, along with a devolution minute, which again made reference to article 6(1) and section 57(2).  The minuter alleged that there was reason to suppose that the Lord Advocate had not discharged the obligation laid on her by article 6(1);  that a fair hearing could, accordingly, not be guaranteed, and that for the Crown to continue with the prosecution and to seek to support the conviction would be for the Lord Advocate to act incompatibly with article 6(1).  At a procedural hearing the following day Lord Nimmo Smith remitted consideration of the petition to a bench of three judges.  The hearing eventually took place over four days and, on 21 December 2007, the appeal court refused the prayer of the petition and also refused to allow the devolution minute to be received.

44.	The system of devolution minutes is not a creature of the 1998 Act itself but rests on rule 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 as amended.  In particular, rule 40.2 provides that, when a party to proceedings on indictment proposes to raise a devolution issue, he is to give written notice to the other parties and to the Advocate General, not later than seven days after the date of service of the indictment.  That was not done in the present cases and so the issue could not be raised unless the appeal court, on cause shown, otherwise determined:  rule 40.5(1).

45.	The requirement to lodge a devolution minute serves two purposes:  it fulfils the party’s obligation under para 5 of Schedule 6 to the 1998 Act to intimate the issue to the Advocate General and, simultaneously, it alerts the Crown and the court to the point that is to be raised.  The Advocate General can then choose whether or not to intervene, while the Crown and the court can prepare to deal with the point.  The minutes lodged on behalf of Mr McDonald and Mr Dixon fulfilled those aims.  The minute in Mr Blair’s case was lodged on the last day of the resumed hearing, which dealt with all three cases.  By that stage the arguments, which were relevant to all three appeals, had been very fully deployed.

46.	In these cases both the petition and the related devolution issue were based on an allegation that the Crown had not disclosed all the material to which the appellants had been, and were, entitled by virtue of their article 6(1) Convention rights.  However discursively the point may have been put, as recorded by the Lord Justice General, the essential contention for the appellants was that the Crown had not disclosed all the police statements and previous convictions of witnesses on the Crown list, to which, the Board had said in Sinclair v HM Advocate 2005 1 SC (PC) 28 and Holland v HM Advocate 2005 1 SC (PC) 1, an accused person was entitled by virtue of article 6(1).  As a result their trials had been unfair.  The obligation to disclose this material was a continuing obligation which rested on the Crown at the appeal stage.  The Crown was accordingly required to check what had taken place in terms of pre-trial disclosure and thereafter to consider whether that had been sufficient.  If the Crown persisted in refusing to do so, the appeal should be allowed or, at least, the Crown should be ordered to disclose the material.  The Lord Advocate accepted that the duty of disclosure continued to rest on the Crown at the appeal stage, but argued that it did not encompass an obligation on the Crown to reinvestigate cases in which statements might not have been disclosed.  While it appears that the arguments advanced on each side changed somewhat in the course of the hearing before the appeal court, it is clear the parties fought out an issue as to the scope of an appellant’s right to disclosure, and of the corresponding duty of the Lord Advocate to make disclosure, under article 6(1).

47.	The appeal court rejected the appellants’ contention, holding that counsel’s proposition that “the Crown has a duty to disclose what it has a duty to disclose is true but tautological” and that the court could not properly invite the Lord Advocate “‘to make disclosure of what she is obliged to disclose’”:  2008 SLT 144, 155, para 56, and p 156, para 60.  In reaching that conclusion, the appeal court made an extensive analysis of the Scottish case law on disclosure, including the decisions in McLeod v HM Advocate (No 2) 1998 JC 67, Holland v HM Advocate 2005 1 SC (PC) 3 and Sinclair v HM Advocate 2005 1 SC (PC) 28, all of which proceeded on a consideration of the scope of an accused’s article 6(1) Convention right.

48.	In these circumstances it respectfully appears to me that, in substance, the appeal court determined that the Lord Advocate was not under any duty in terms of article 6(1), or otherwise, to reinvestigate the case at the appeal stage to see whether there were any statements which ought to have been disclosed, and so she had not acted incompatibly with the appellants’ article 6(1) Convention rights in declining to do so.  That amounted to the determination of a devolution issue in terms of para 1(d) or (e) of Schedule 6 to the 1998 Act.

49.	Rather surprisingly, the appeal court simultaneously determined, not that no devolution issue arose in the proceedings – a course contemplated by rule 40.2(2) – but that it would not allow the devolution minutes to be received.  The court was not satisfied that “the circumstances justify a jurisdiction being invoked which might render competent an appeal to the Privy Council”:  2008 SLT 144, 158, para 67.  All that needs to be said about that observation is that receiving or not receiving a devolution minute is a procedural step which cannot affect the jurisdiction of the Board to hear an appeal, with special leave, in a case where the appeal court has in substance determined the devolution issue in question.  That jurisdiction, which is conferred by Parliament, not the appeal court, cannot be removed by any procedural decision of the appeal court.  For these reasons, I am satisfied that the Board has jurisdiction to entertain the appeal.

50.	As I have just explained, the devolution issue relates to the scope of the Crown’s obligation of disclosure.  The scope of that obligation was one of the issues which was considered, under reference to the relevant case law of the European Court on article 6(1), by the Five Judge bench in McLeod v HM Advocate (No 2) 1998 JC 67 and, subsequently, by this Board in Holland v HM Advocate 2005 1 SC (PC) 3 and Sinclair v HM Advocate 2005 1 SC (PC) 28.  As the appeal court pointed out in the present case, in these decisions the judges use slightly different expressions to describe the nature of the material that has to be disclosed.  I do not regard these verbal variations as being of any significance:  all the expressions are designed to describe the same obligation.  The “golden rule” described by Lord Bingham of Cornhill in R v H and C [2004] 2 AC 1324, 147, para 14, has the advantage of encapsulating both the possible negative effect of material on the Crown’s case and its possible positive effect on the defence case.  Put shortly, the Crown must disclose any statement or other material of which it is aware and which either materially weakens the Crown case or materially strengthens the defence case (“disclosable material”).

51.	While that general description of the duty is now settled, questions can still arise about what that duty involves and how it applies in various circumstances.  The decisions of the Board in Holland v HM Advocate and Sinclair v HM Advocate answered two such questions.  Included within the general description of disclosable material are two classes of material:  the police statements (as opposed to precognitions) of any witnesses on the Crown list and – subject to the Crown argument on article 8 which it is unnecessary to determine in these proceedings – the previous convictions and outstanding charges relating to those witnesses.

52.	The present cases call for further clarification of two aspects of the scope of the Crown’s article 6(1) duty of disclosure.  First, does the Crown’s duty of disclosure include a duty to search for disclosable material to disclose?  Secondly, what does the duty of disclosure require of the Crown at the appeal stage?

53.	It is important to remember that we are concerned only with the Lord Advocate’s article 6(1) duty of disclosure – not with any wider policy of disclosure adopted by the Crown.  In fact, for reasons connected with the reforms introduced in the light of the report by Lord Bonomy, even before the Board gave judgment in Holland v HM Advocate and Sinclair v HM Advocate, the Crown had already decided that, for all solemn cases where the accused first appeared on petition on or after 6 December 2004, the Crown would make more extensive disclosure than is required by article 6(1) as interpreted in those judgments.  The new policy applied to the proceedings against Mr McDonald, whose first appearance was on 3 March 2005, but did not apply, at the time, to the proceedings against Mr Dixon or Mr Blair who had first appeared on petition before 6 December 2004.  The policy was subsequently applied to all cases where the first appearance had been before 1 January 2005.

54.	As the Solicitor General explained, the current policy of the Crown is to supply the accused’s advisers with copies of all police statements at a very early stage, when the accused is still just on petition and the Crown may not even have decided whether to indict him and, if so, on what charges.  It follows that the Crown has a policy of handing over statements by people who may well not appear on the eventual list of Crown witnesses attached to the indictment.  If in any particular case the Crown slips up and fails to supply a police statement from someone who does not appear on the Crown list, this may constitute a failure to carry out the Crown’s declared policy, but it will not constitute a breach of the Crown’s article 6(1) obligation of disclosure - unless the statement does in fact materially weaken the Crown case or strengthen that of the accused.  The question whether the Lord Advocate had failed to carry out her declared policy in this way would, accordingly, not be a devolution issue.

55.	Since disclosing disclosable material is a duty of the Crown under article 6(1), in principle the representatives of the Crown must perform that duty spontaneously, whether or not the defence calls upon them to do so.  If authority for such an elementary proposition is necessary, it is to be found in Sinclair v HM Advocate 2005 1 SC (PC) 28, 43, para 46:  “the Crown’s article 6(1) duty to disclose evidence in favour of the defence does not … depend on any request being made by the defence.  That duty subsists unless, unusually, it is waived by the defence.”

56.	So if, before the trial in Mr McDonald’s case, for example, his counsel had asked the Crown to disclose all the police statements of the witnesses on the Crown list attached to the indictment, the Crown would have been obliged to do so.  The Crown could not have responded to the request by asking the defence representatives to specify why they wanted those statements.  Equally, if the statements had not been disclosed and the defence had sought an order on the Crown to produce them, the defence would not have needed to set out any particular circumstances to justify the grant of the order.  It would have been enough for the defence to explain to the court that the Crown had not disclosed the statements.  Unless the Crown had been in a position to say that they had, in fact, been disclosed already, or were about to be disclosed, the defence would have been entitled to an order requiring the Crown to perform its duty by disclosing the statements.

57.	That is an easy example since, after the decisions in Holland and Sinclair, there is no doubt that, before trial, the Crown is obliged to disclose all the police statements in its possession relating to witnesses on the Crown list.  Under the Scottish system, the defence has the valuable right to precognosce witnesses and so, in that respect, is perhaps in a better position than the defence in some other systems to uncover and explore any contradictions or changes in the testimony of those witnesses.  But the law imposes a duty on the Crown to disclose all the statements of these witnesses precisely because, in the nature of things, they may well contain information which even careful precognoscing by the defence would not uncover and which might materially weaken the Crown case or support the defence case.  For the defence, in the words of former Secretary of Defence Rumsfeld to which Ms Scott QC aptly alluded, these statements may contain unknown unknowns, “things we do not know we don’t know.”  The duty to disclose these statements is designed to ensure that the Crown spontaneously discloses these unknown unknowns, which the defence could not specify in any request.

58.	Where it is settled – as with statements of witnesses on the Crown list and, subject to the article 8 point, previous convictions and outstanding charges relating to such witnesses – that a class of material is disclosable, the Crown will usually have no difficulty in identifying the material belonging to that class and in then disclosing it.  In some prosecutions for violent crime, for instance, apart from forensic science and similar material, there may well be little or nothing else in the Crown’s possession.  But, in other cases, such as commercial frauds or embezzlements, there may be a mass of other unused material, the detailed contents of which, and their possible significance for the defence, will not actually be known to the advocate depute or procurator fiscal prosecuting the case any more than to the representatives of the defence.

59.	The problem of unknown unknowns in this mass of material might be tackled by giving the defence the right to recover and sift through all the statements and similar material generated in the course of the investigation leading up to the charges against the accused.  That was the solution advocated by defence counsel, but firmly rejected by the court, in McLeod v HM Advocate (No 2) 1998 JC 67, 72H-73C and, for example, pp 75I-76B and p 77C-D.  The basic objection to such an approach is that it would be time-consuming and involve an enormous expenditure of effort and resources by the defence in looking through a vast amount of material in the mere hope of finding something of significance that might well not be there.  An alternative approach – which might be thought to be implicit in the appellants’ argument that the Lord Advocate was obliged to “reinvestigate” disclosure – would be, in effect, to impose a comparable duty on the Crown.  In other words, the Crown would be 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.  The same objection based on the inefficient expenditure of effort obviously applies and, presumably for that reason, in the appeal court counsel for the appellants was careful not to suggest that the Crown was under any such obligation:  2008 SLT 144, 156, para 57.

60.	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 and article 6 contains guarantees which are designed to ensure that they are in a position to do their job.  The success of our adversarial system of trial depends on both sides duly performing their respective roles.  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.  Disclosure is simply one aspect of the overall duty to prosecute the case fairly.  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.  That duty applies to all those involved in the prosecution, right from the earliest stages.

61.	Ms Scott objected that there is no guarantee that the Crown will carry out this duty.  She is right.  But that is to make the age-old objection:  quis custodiet?  Of course, as the cases show, mistakes have occurred in the past and it would be naïve to suppose that they will not occur in the future.  As was pointed out in Macleod v HM Advocate (No 2) 1998 JC 67, 80A-C, the law provides various mechanisms (to which the Scottish Criminal Cases Review Commission can be added) for remedying such mistakes.  HM Advocate v B 2006 SLT 1093 is just one example of the court providing a remedy - in that case, by deserting the diet pro loco et tempore.  Still, anything which can be done to improve the transparency of the system must be welcome.  The Scottish Executive intends to put forward legislation based on Lord Coulsfield’s report.  Under the proposed system, partly modelled on the one in England and Wales, the defence representatives would be given a list of all the unused Crown material from which they could see if there was anything in it which might assist the defence.  The proposal has much to commend it.  Ms Scott argued, however, that a list of this kind was not merely desirable but essential if a system of disclosure was to be compatible with article 6(1).  But, in fact, it would be no panacea and its advantages should not be exaggerated.  Inevitably, since human beings would be operating the system, from time to time mistakes would be made and items would be omitted from the list.  Ultimately, the correct functioning of any system of disclosure depends on the diligence and sense of duty of everyone involved, starting with the police and going on up through the procurator fiscal service to the Crown Office and the Lord Advocate herself.  The steps which the Crown has taken in recent years to develop its procedures for disclosure, which the Solicitor General explained to the Board and which Lord Hope has outlined, confirm that the Crown takes its responsibilities in this respect very seriously.  The only question for the Board is whether the system as it operates at present, admittedly imperfectly on occasions, but with provision for defence applications to the court to enforce the Crown’s duty of disclosure, is compatible with an accused’s article 6(1) Convention rights.  For the reasons which I have given, I am satisfied that it is.

62.	It may be worth saying something about the procedure for obtaining disclosure since, as has emerged particularly clearly in these appeals, two questions which ought to be kept separate are apt to be run together.  There are passages (headed “Procedure to secure disclosure”) in the judgment of the appeal court in the present cases which, if interpreted literally, might seem to say that, even when calling on the Crown to disclose material which it is bound to disclose in terms of article 6(1), an accused person must always set out particular circumstances to justify that request.  The Lord Justice General quotes, 2008 SLT 145, 155, para 54, the following passage from my judgment in McLeod v HM Advocate (No 2) 1998 JC 67, 80D-E:

“I consider, however, 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 in 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.”

63.	As I have already explained at paras 55 and 56 above, the approach identified in this passage from McLeod does not apply where the accused is calling upon the Crown to discharge its article 6(1) duty to disclose a class of admittedly disclosable material, such as the statements of Crown witnesses.  But the appeal court presumably had in mind the situation where the defence alleges that, by reason of its contents, specific material, such as the records of some scientific test, or the minutes of a series of meetings, or the records of calls made to and from various mobile phones, would tend to weaken the Crown case or support the defence case.  So the Crown should be obliged by article 6(1) to disclose it.  In a contents case of that kind, the defence would have to explain to the Crown why the material in question would weaken the Crown case or strengthen the defence case.  If the Crown was not convinced and the defence made an application to the court, in order to make good its assertion that the Crown was under an article 6(1) obligation to disclose the material, it would have to give a similar explanation to the court.  It would be explaining why the material in question could properly be regarded as material which the Crown was under a pre-existing obligation to disclose by virtue of article 6(1).  If the court were satisfied, it would compel the Crown to disclose the material in performance of its article 6(1) duty.

64.	That is the theoretical position.  In reality, the defence would not need to pitch its case so high in order to get the material it wanted.  As the reference to third parties in the passage from McLeod v HM Advocate (No 2) reminds us, the procedure by commission and diligence applies where the accused is asking the court to order the production - disclosure, if you like - of material which the Crown is not under an antecedent duty to disclose but which might nevertheless have a bearing on the issues of fact to be determined at the trial.

65.	Under traditional Scottish civil procedure the parties in a litigation were under no duty to disclose material to the other side spontaneously.  But the court would grant a commission and diligence for the recovery of material bearing on the issues of fact that had to be determined.  These issues of fact could be seen from the parties’ pleadings.  The material which the party wanted to recover was set out in a specification which linked the calls to aspects of the averments in the pleadings.  If satisfied that the calls did indeed have a bearing on the averments, the court would approve the specification.  The diligence granted by the court was warrant for citing the havers to a hearing before a commissioner appointed by the court, at which they could be asked to produce any material falling within the scope of the specification approved by the court.  What matters for present purposes is that, in the absence of this order from the court, the havers, whether parties to the litigation or third parties, were not under any duty to produce or disclose the material in question;  indeed, a doctor or hospital might have been under a duty to keep it confidential.  So the person seeking the order had to satisfy the court that an order imposing this new duty on the havers was justified because the material would have a legitimate bearing on the issues of fact in the case.

66.	Applications for commission and diligence have always been commonplace in civil proceedings, but have been far from usual in criminal proceedings:  the third edition of Renton and Brown’s Criminal Procedure according to the Law of Scotland, published in 1956, lists only eight unreported cases in which applications had been granted by the High Court since 1887:  p 77 n 1.  In one reported case, Downie v HM Advocate 1952 JC 37, the material which the accused sought to recover was said to be in the possession of either the Crown or the Post Office.  Subsequently, in HM Advocate v Hasson 1971 JC 35, a case of embezzlement, Lord Cameron granted a commission and diligence for the recovery of various books of a lodge belonging to the Grand Orange Order and of various business books of the individual whom the accused intended to incriminate.  Given that the Crown would traditionally make available statements or other items in its possession if an accused’s representatives explained why they would be material to the defence, it is not surprising that McLeod v HM Advocate (No 2) appears to have been the first reported case in which the only haver targeted by the application was the Crown.

67.	An application of that kind for the recovery of material in the hands of the Crown can, of course, serve an entirely legitimate purpose.  The Crown – in which I include the police or other investigating authority – will often assemble a large volume of material in the course of an investigation.  This may well include material which, while not meeting the criteria for being disclosable by the Crown in terms of its article 6(1) duty, might have a bearing on the issues to be explored at trial.  If the Crown refuses to produce it, the defence can apply to the court, specify what it wishes to recover, explain what bearing the material would have on the issues in the trial, and ask for a commission and diligence for its recovery.  If the court is satisfied that the case is made out, it will grant the commission and diligence.  The Crown, like any other haver, will then be required to produce the material in question.  The passage in McLeod v HM Advocate (No 2) explains the approach to be taken in such applications.

68.	If the defence cannot show that the material would have a legitimate bearing on the issues at trial, it is unlikely to be able to show that it would materially weaken the Crown case or strengthen the defence case.  Accordingly, when applying to the court for an order for production, the defence can be expected to concentrate on trying to satisfy the court that the material would have a legitimate bearing on the issues at trial.  If the court is prepared to grant an order on this basis, it will rarely need to consider whether the material would also have met the stricter criteria for being disclosable by virtue of the Crown’s duty in terms of article 6(1).

69.	The issue of disclosure arises in these appeals in the context of the petitions lodged by the appellants seeking the common law remedy of commission and diligence.  In terms of section 104(1) of the Criminal Procedure (Scotland) Act 1995, the powers of the appeal court under that sub-section are without prejudice to any existing power of the High Court.  In effect, substantially the same result could doubtless be achieved by a combination of the powers of the appeal court to order the production of any document connected with the proceedings (section 104(1)(a)) and to appoint a person to hear evidence relevant to any alleged miscarriage of justice (section 104(1)(b) and (2)).  Having regard to the terms of section 104(1), the Crown does not dispute that, just like a first instance judge, the appeal court would have power in an appropriate case to order the Crown to perform its duty to disclose material which was disclosable in terms of article 6(1) or, alternatively, to order it to produce material having a legitimate bearing on any ground of appeal.  The issue between the parties is whether any such order should be made in the circumstances of these appeals.  In itself, the question whether the court should grant an order on the second basis is not a devolution issue.

70.	Each of the appellants has been granted leave to appeal against his conviction.  While the appeal court can allow additional grounds to be lodged, it is axiomatic that it is for an appellant to specify the ground or grounds on which he claims that his conviction should be quashed.  The appellants have all done so.  But, as I understand the position, their contention, that the Lord Advocate is obliged to reinvestigate the disclosure made in their cases, is not necessarily related to, and is certainly not confined to, the grounds of appeal which they have specified.  Rather, they contend that the Lord Advocate must reinvestigate the disclosure and supply them with the results so that they can then see whether any failure to disclose would have made their trials unfair in terms of article 6(1).  In other words, they say that the Lord Advocate must search for the material, not because it may bolster their existing grounds of appeal, but so that they can see whether they can use it to devise some other ground of appeal.

71.	That is an extravagant proposition – more extreme indeed than the one which the appeal court rejected in Hoekstra v HM Advocate (No 4) 2001 JC 131, 135, at para 8.  There, as the court explained, the Dutch counsel who argued the point on behalf of all the appellants, contended that the test for disclosure in McLeod v HM Advocate (No 2) was too narrow and that the court should order a very general disclosure of documents

“so that the appellants could investigate the whole background to the prosecution and trial in order to ascertain whether the proceedings as a whole had been fair.  But, at times at least, he seemed to overlook the nature and limits of our jurisdiction as an appeal court.  The system of criminal appeals in solemn procedure is entirely statutory in origin.  The grounds upon which this court can allow an appeal are laid down by Act of Parliament and at present they are embodied in Section 106 of the 1995 Act.  Parliament has empowered us to deal with particular matters which must be set out in grounds of appeal.  For obvious reasons, it has not empowered us to carry out a general inquiry into the background to the case or prosecution.  There is accordingly no scope for this court to engage in the kind of general and unstructured investigation which Dr. Sjöcrona seemed to envisage.”

72.	In the present cases the appellants were all represented by counsel at their trials.  The Board’s decisions in Holland v HM Advocate and Sinclair v HM Advocate were announced in May 2005 – after the trials of Mr Dixon and Mr Blair were over.  Lord Hope has explained what happened by way of disclosure in their cases.  Mr McDonald’s trial took place in September 2005, by which time the decisions of the Board were well known both to Crown counsel and to defence counsel.  So, on the one hand, the Crown should have disclosed the statements and previous convictions in advance of trial.  Equally, and without prejudice to the duty of the Crown to make that disclosure spontaneously, defence counsel could have asked for police statements, previous convictions etc, to be disclosed and, in the unlikely event of this request being refused, he could have asked the court to order the Crown to perform its article 6(1) duty to disclose the material.  Again, in the unlikely event of refusal, the defence could have appealed.  Later, if something had emerged during trial to make disclosure appropriate, it could have been made at that stage.  In fact, the experienced senior counsel who conducted the trial did not raise the question of disclosure before the trial.  And, when one particular question emerged during the trial, it was investigated by the police and defence counsel was content with the outcome.

73.	Not surprisingly, therefore, the question of non-disclosure does not seem to have been raised in the context of Mr McDonald’s appeal until February 2007, some eighteen months after his conviction, when there had been a change of counsel conducting the appeal.  Of course, a ground of appeal may be a good one, even if it is raised late.  And the Solicitor General rightly accepted, on behalf of the Crown, that if, when preparing for an appeal or at any other stage, the Crown became aware of any material which had not been disclosed and which ought to have been, the Crown would be obliged to provide it to the appellant who could then use it, if appropriate, to support an existing ground of appeal or to formulate a fresh ground of appeal.  But that is very different from an obligation on the Crown actually to reinvestigate the entire position on disclosure in all solemn cases which are under appeal.

74.	For essentially the same reasons as apply at first instance, in my view there is no such obligation on the Crown.  Rather, the Crown’s obligation at the appeal stage was correctly identified by the Solicitor General in argument.  He accepted that, while the Crown need only prepare to meet the existing grounds of appeal, the duty of disclosure in terms of article 6(1) was not confined to material relevant to those grounds of appeal.  It would extend to material which should have been disclosed at an earlier stage, or which had become disclosable in the light of developments in the appeal or which was disclosable but had only come to the attention of the Crown since the trial.  An obligation in these terms is already enshrined in the Crown Office Disclosure Manual para 26.1.3.  Consistently with that approach, by the time of the hearing before the Board, the Crown had disclosed the previous convictions of various Crown witnesses and the witness statements of the witnesses on the Crown list at the trial.  Such statements and convictions are readily identifiable, without investigation, as material which should have been disclosed before trial.  By contrast, the Crown is not under any obligation to look through all the material in its possession in order to see whether some other item might have been disclosable if identified before trial.  Not only would such an obligation be unduly burdensome, but it would often be quite inappropriate at the appeal stage.  By then, the real issues in contention between the parties will have been focused at the trial.  In this new situation material which might have seemed to be of potential significance for the defence before the trial (for instance, as weakening the identification evidence of a witness to a murder) may now be seen to have actually been irrelevant (because for instance, the accused admitted that he killed the deceased, but pleaded self-defence).  For the same reason, an admitted failure to disclose statements of witnesses on the Crown list will often prove to have been of little or no practical significance in the light both of their contents and of the way the issues were focused at the trial.  It will therefore provide no basis for challenging the conviction.

75.	It follows that, as already explained, if the Crown had failed to disclose the statements of Crown witnesses or, subject to the article 8 point, the convictions and outstanding charges of such witnesses, the appellants would have been entitled to an order requiring their disclosure.  In fact, however, the Crown has made these disclosures and it is now up to the defence to see whether the new material is of any assistance.  Similarly, if the appellants were able to satisfy the court that material would have a bearing on an issue in contention between the parties in the appeal, the court would have the power to order its production, even if it was not material which the Crown would be under an article 6(1) duty to disclose.  In fact, such an order should rarely be needed since para 26.3.1 of the Crown Office Disclosure Manual recognises that the Crown is obliged to disclose such material.

76.	As the Lord Justice General pointed out, 2008 SLT 144, 157, para 61, in these appeals counsel did not apply for recovery of any particular kinds of material – an application which the court would have required to consider on its merits.  Instead, the appellants stuck to their applications which were couched in the very general terms set out in para 43 above and were based, as I understand it, on the idea that article 6(1) requires the Crown to reinvestigate the question of disclosure at the appeal stage.  As I have explained, the obligation on the Crown under article 6(1) is more limited.  As such, it does not provide any basis for granting the orders sought, in the absence of any reason to suppose that the Crown has not now discharged its duty.  Similarly, an appellant who asks the court to grant an order for the production of material having a bearing on the issues in his appeal must identify the kind of material which is to be produced and explain why it would have a legitimate bearing on those issues.  While the point is not one for this Board, if the matter is judged in that way, I would respectfully agree with the appeal court that the averments in the appellants’ petitions are irrelevant and could never justify the grant of an order in such general terms.  The appeal court was right to refuse the prayers of the petitions.  The appeals to the Board should be dismissed.

77.	Finally, I must re-emphasise the point, which was emphasised in Holland v HM Advocate 2005 1 SC (PC) 1, p 25, para, 77, and p 27, para, 85, that, while a failure by the Crown to disclose material may be incompatible with article 6(1), it by no means necessarily follows that the accused has not had a fair trial in terms of article 6, or that there has been some other miscarriage of justice.  For instance, as already pointed out, the issue (such as identification) to which the material would have been relevant may not actually be in dispute at the trial, or the statement may not contain any fresh information.  Alternatively, as was pointed out in Sinclair v HM Advocate 2005 1 SC (PC) 28, 42, para 45, even if a significant point emerges for the first time in the course of the trial, the Crown’s previous failure to disclose may well be remedied by the Crown making disclosure at that stage and the defence being given an opportunity to deploy the new material.  In short, the effect of any failure to disclose depends on a consideration of the circumstances as a whole.  Therefore, if the failure comes to light at the appeal stage, it will only assist the appellant if he can deploy the new material in support of an existing ground of appeal or use it as the basis for obtaining leave to lodge a fresh ground of appeal.  In either event, it will be for the appeal court then to determine the appeal in the usual way.  In that way, the appellant’s article 6 Convention rights can be fully respected.
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Lord Neuberger of Abbotsbury

78.	I have had the great benefit of reading in draft the judgment of Lord Hope of Craighead, with which I wholly agree.  For the reasons he gives, I, too, would dismiss these appeals. Having also had the benefit of reading in draft the judgment of my Lord Rodger of Earlsferry, I should add that I also agree with his observations.