Crown loses appeal against disclosure order after appeal judges rule access to productions is for court to determine

The Criminal Appeal Court held it is for the trial court as “master of its procedure” to determine whether to grant an application by the defence to remove them for the purposes of copying or inspection by an expert.

The Lord Justice Clerk, Lord Carloway (pictured), sitting with Lady Smith and Lady Clark of Calton, heard the Crown appeal against a judge’s decision ordering disclosure to the defence agents by delivering copies of disc recordings of police and social work joint investigative interviews of two young boys.

The respondents “AM” and “JM”, aged 16 and 15, faced two charges of sexual abuse involving the two younger boys, contrary to sections 18, 20 and 21 of the Sexual Offences (Scotland) Act 2009.

Special measures had been granted in relation to both complainers, including the taking of their evidence on commission and the giving of evidence in chief in the form of prior statements.

The discs and the transcriptions, which were in the custody of the Crown, were listed as productions in the lists attached to the indictment.

The respondents wished to have the discs’ content viewed by a forensic psychologist, but the Crown refused to provide copies of the discs to the defence, electing instead to allow “disclosure by access” by enabling the accused to inspect the discs “at a reasonable time and in a reasonable place”.

However, both respondents lodged preliminary and compatibility issue minutes relating to the discs and the PH judge ordered the Crown to provide copies of the discs to the respondents’ agents, subject to certain conditions, after ruling that the Crown had adopted an “illegitimate blanket policy”, whereby discs containing visual recordings of JIIs of children being interviewed would never be given to the defence.

In the circumstances the judge concluded that the Crown’s policy, which left “no element of discretion”, offended the respondent’s right to a fair trial under Article 6 of the European Convention on Human Rights.

On appeal, the principal contention for the Crown was that the judge had erred in holding that the respondents’ article 6 rights were breached by the decision to disclose the content of the JIIs by access, rather than providing copies.

In terms of section 164 of the Criminal Justice and Licensing (Scotland) Act 2010, the Lord Advocate had laid before the Scottish Parliament a Code of Practice, which established “a clear, consistent and readily understood means” which enabled parties to apply a practice meeting the “legitimate and proportionate aims of balancing the rights of an accused person and those of the witnesses”.

It was argued that disclosure by access was a “justified and proportionate response” to the obligations placed upon the appellant and “did not unnecessarily impede preparation of the defence”.

In a decision dated September 2015 for which written reasons have now been published, Lord Carloway, said it was important to distinguish the disclosure regime, the object of which was “to ensure that the defence have knowledge of what evidence would form the case against the accused and what material there is available to refute it”, and the regime covering label productions.

Delivering the opinion of the court, the Lord Justice General said: “This case is concerned with recordings of the Joint Investigative Interviews. Whilst they may provide powerful information they are also label productions in the case.

“As such a different regime covers their inspection by the defence. No issue of disclosure per se arises in such circumstances. The defence have had formal notice, by way of the lists attached to the indictment, of both the discs and the transcriptions.

“Intimation of such lists has the effect of bringing the productions specified under the control of the court whether or not they have been lodged and it is for the court to determine, as master of its procedure, what may or may not happen to them.

“No issue of substantive law arises. At this stage in the case the accused is entitled to see the labels, not as a result of the disclosure regime but in terms of the statute relative to the lists of production.

“Whilst, in modern practice the Crown may retain them until the diet of trial…it does so subject to any order of the court. If an accused wishes to remove any production from the custody of the court or Crown for the purposes of copying or inspection by an expert, he is entitled to apply to the trial court to do so.

“There is no need to invoke the disclosure regime, Article 6 of the Convention or European Court jurisprudence. There is no need to lodge a preliminary or compatibility issue minute.

“All that is required in respect of items referred to in the lists attached to the indictment is a request to the trial court to borrow them for a specified purpose (including copying). The court will thereafter decide, as a matter for its discretion but no doubt having regard to the principles of fairness, including equality of arms, whether it is in the interests of justice to grant the application.”

He added: “Given that the labels are to be used as evidence in chief, it is difficult to conceive of a situation in which the court would refuse such an application, albeit perhaps subject to conditions. The court has effectively granted that application. The appeals will simply be refused on that basis.”