Appeal by man accused of fraud against refusal of disclosure application rejected by High Court 

About this case:

• Citation:
  [2022] HCJAC 23
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Woolman

The appellant, MA, argued that the Crown’s duty of disclosure extended to disclosing the prior convictions of TA, an individual who he alleged had access to his bank account at the relevant time. He denied any involvement in the crime.

The appeal was heard by Lord Woolman, Lord Pentland, and Lord Matthews. N Shand, advocate, appeared for the appellant and A Edwards QC for the respondent.

Material suggesting dishonesty

It was alleged that the appellant, acting along with unknown others, had sold a flat that he did not own, with the proceeds of sale going through his bank account. Before the hearing, the appellant lodged two documents: a special defence of incrimination naming TA as the perpetrator and a defence statement which sought disclosure of the entire case against the appellant and any evidence which may exculpate him or undermine the prosecution case.

Following an adjournment, the appellant lodged a second defence statement seeking disclosure of any relevant previous convictions TA might have or any information suggesting he had been involved in similar criminality in the past. Counsel for the appellant had stated to the sheriff that he did not intend to lead TA as a witness. The application was refused by the trial sheriff.

It was argued on appeal that the material was required to be disclosed in terms of section 121 of the Criminal Justice and Licensing (Scotland) Act 2010, and that the sheriff’s decision had breached the appellant’s rights under Article 6 ECHR. It was explained that the defence only sought the disclosure of material suggesting dishonesty and intended to use that information to decide whether to put TA’s name on the witness list.

Banquo’s ghost

Lord Woolman, delivering the opinion of the court, began: “This application has a degree of artificiality. It arises because the defence has elected not to place TA’s name on the witness list. If it had done so, that would engage the Crown’s duty of disclosure. We are not persuaded that there would be any prejudice to the defence in following that course.”

Turning to the 2010 Act argument, he said: “We reject Mr Shand’s elaborate argument to the effect that the Crown is bound to disclose anything that might conceivably bear upon the defence. That is too broad. The jurisprudence confines disclosure to information about actual witnesses. A person cannot be regarded as a witness simply because he has been incriminated.”

He continued: “In our procedure a witness is someone whose name has been put on a witness list. If Mr Shand’s argument were correct, it would be open to the defence to incriminate any well-known criminal and then insist on disclosure of his previous convictions. But like Banquo’s ghost such an incriminee would never materialise.”

Fishing diligence

Addressing the ECHR argument, Lord Woolman observed: “The right to a fair trial does not require information to be disclosed unless it is material. We see no force in the ‘equality of arms’ argument, which we understood to mean that the defence should be put in the same position as the Crown in listing witnesses. Mr Shand’s suggestion that, if a particular individual is ‘under genuine consideration’, their criminal record should be available to assist with that process, would be unworkable.”

He went on to say: “In any event, the question of whether article 6 had been infringed because the appellant had not received a fair trial could only be determined after the conclusion of the prosecution, in the light of the totality of the procedure in the case.”

Lord Woolman concluded: “The application has all the hallmarks of a fishing diligence. It appears to us that the appellant has no basis, apart from his own musings, for supposing that the information exists. If granted, the order would be an unwarranted invasion of TA’s ECHR article 8 rights. That is because it is unclear how any of the material sought would be relevant evidence at the trial. Granting the order would also have wider, adverse consequences. It would usurp finite Crown resources.”

The appeal was therefore refused.