Disclosure in criminal proceedings

McDonald v HM Advocate [2007] HCJAC 75 is a decision in three appeals concerning the currently high-profile issue of disclosure in criminal proceedings. The substance of the appeal is important, but some asides regarding the possibility of an obligation of disclosure being placed on the defence are perhaps more significant.

The appeal turns largely on the validity of two calls in petitions for the recovery of documents. (The calls made in a petition on behalf of the third appellant were more specific and his petition was continued to consider them.) Both of these calls were in the following terms (see para 4):

"1. 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 his [sic] 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."

These terms are remarkably broad, and the Lord Justice-General was less than complimentary about the submissions made in support of their validity, stating (at para 5) that counsel for the appellants “presented a wide-ranging and essentially unstructured submission. We endeavour to summarise it…”. Subsequently (at para 47), the Lord Justice-General states that this submission “amounted in substance to the tautological proposition that the Crown had a duty to disclose what it had a duty to disclose”, going on to say (at para 56) that this “is true but tautological and, for practical purposes, accordingly useless”.

Against that background, it is unsurprising that the appeal court declined to make the orders sought. The courts are reluctant to grant orders in terms which merely restate a general legal obligation (so, to take an example from a different context, an interdict against “defamatory statements”, with no further specification, would be illegitimately wide: Shinwell v National Sailors’ and Firemen’s Union of Great Britain 1913 2 SLT 83) and it is difficult to see what use orders in the terms proposed would have been or how it would have been possible to establish if they had been complied with.

Although the point concerned may, put this way, seem rather narrow, the case is important as reaffirming that the general test for disclosure laid down in McLeod v HM Advocate (No 2) 1998 JC 67 – that the Crown “disclose all material evidence for or against the accused" – remains the relevant overarching principle despite the recent decisions in Sinclair v HM Advocate 2005 SC (PC) 28 and Holland v HM Advocate 2005 SC (PC) 3. The current importance attached to the issue is demonstrated by the fact that the Lord Advocate appeared in person before the court.

As noted earlier, an interesting feature of the decision is the attention paid to the question of whether the defence should be required to make advance disclosure of their case, even though that issue did not arise before the court. The Lord Advocate submitted (in the words of the Lord Justice-General) that “[t]he changes in practice engendered by Holland and Sinclair also required a change in culture from the defence. The information it held should be made known to the Crown, to allow the latter's obligations to be met. This could be in the form of a letter at precognition stage.” (para 24). The Lord Justice-General goes on to say (at para 58) that “[t]here may be an advantage in an accused being required, to a greater extent than at present, to give notice of what his defence to any charges is.”

This discussion seems connected to the recent review of disclosure (click here) by Lord Coulsfield, who considered this issue and concluded (at para 7.8) that “I have not been convinced that a general requirement for a defence statement would give any significant additional benefit, to justify the additional work and cost which would be generated.” He therefore declined to recommend such a requirement.

Despite this, the Scottish Government has chosen to specifically consult on the question “Do you agree that the defence should not be required to provide a defence statement following initial disclosure by the Crown…”? (A Statutory Basis for Disclosure in Criminal Proceedings in Scotland: Proposals for Legislation… (2007), Question O). That consultation closes on the 25th January. It seems reasonable to conclude (a) that we know how Crown Office will be responding to that question and (b) that they will now be fortified by what looks like at least tentative judicial support.