APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith Lord Emslie Lord Abernethy	[2009] HCJAC 45 Appeal No: OPINION OF THE COURT delivered by LORD NIMMO SMITH in BILL OF ADVOCATION for LESLEY THOMSON, Procurator Fiscal, Glasgow Complainer; against LORRAINE BURNS Respondent: _______

Act: Solicitor General for Scotland (Mulholland, QC); Crown Agent

Alt: Shead; Reilly Cassidy, Glasgow

7 May 2009

Introduction

[1] The respondent was charged at the instance of the complainer in Glasgow District Court on a summary complaint containing one charge, in the following terms:

"(001) on 31 October 2007 on a road or other public place, namely Pollokshaws Road, Glasgow you LORRAINE BURNS did drive a motor vehicle, namely motor car registered number P273 LSD after consuming so much alcohol that the proportion of it in your breath was 86 microgrammes of alcohol in 100 millilitres of breath which exceeded the prescribed limit, namely 35 microgrammes of alcohol in 100 millilitres of breath; CONTRARY to the Road Traffic Act 1988, section 5(1)(a)."

After sundry procedure between 7 November 2007 and 4 December 2008, as set out below, the stipendiary magistrate on the latter date granted a defence motion to desert the diet simpliciter. The complainer has now appealed by way of Bill of Advocation against this decision.

The procedure

[2] The respondent attended Glasgow District Court on 7 November 2007 when she was served with the complaint along with a summary of evidence and a list of witnesses. The summary of evidence was in the following terms:

"Description of locus

The locus for this offence is Pollokshaws Road near to its junction with Calder Street. Pollokshaws Road is a single carriageway with two lanes running in each direction namely north and south. It is constructed of rolled tarmacadam and is in good order. At the time of the offence the roadway was busy with vehicular traffic as it is a main route for main [sic] vehicles and passengers going to or coming from Glasgow city centre. At the time of the offence it was dark with light rain.

Description of events

At 2150 hours on Wednesday 31 October 2007 whilst on uniform mobile patrol in a marked police vehicle police witnesses Cogan and Muir observed a green Ford Mondeo Reg. No. P273 LSD, travelling southbound on Pollokshaws Road with no headlights in operation.

Police witnesses Cogan and Muir followed the motor vehicle P273 LSD until it stopped at a red traffic signal at the junction of Pollokshaws Road at Calder Street. Police witness Cogan exited the police vehicle and approached the driver of this vehicle, the now accused Lorraine Burns. The police witness Cogan requested the now accused Burns to take the keys from the ignition and exit her vehicle.

Police witness Cogan then informed the now accused Burns as for [sic] the reason for the stop and while speaking to the now accused both police witnesses could detect a strong smell of alcohol from the now accused.

The police witness Cogan informed the now accused of their suspicions and required the now accused to provide a sample of breath under Terms of Sec. 6 of the Road Traffic Act 1988. The now accused complied with this requirement. The roadside breath test indicated that the now accused had failed the test and police witness Cogan stated to the accused 'I ARREST YOU'.

The accused was thereafter placed within the rear of the police vehicle and her car secured at the locus. The accused was thereafter conveyed to Helen Street Police Office.

Within Helen Street Police Office the witness Cogan in the presence of the witness Muir required the accused to provide two specimens of breath for analysis by means of an approved device and warned her of the consequences of refusal. At 2226 hours on 31 October 2007 the accused agreed to provide two specimens of breath for analysis. The explanation contained within Form 4:8:1 in relation to the use of the Intoximeter EC/IR was then read to the accused who appeared to understand.

The test cycle was then started and the following readings were obtained.

The first calibration was 35 mcgs.

The first test at 2227 hours was 89 mcgs.

The second test at 2230 hours was 86 mcgs.

The second calibration was 35 mcgs.

A certified copy of the print out provided by the Intoximeter EC/IR was then completed by the witnesses Muir and Cogan. A copy of the print out was offered to the accused which she accepted. She signed Form 4:8:1 accordingly.

Caution and charge/reply

The accused was cautioned and charged as libelled as per Part 6 of Form 4:8:1 by witness Cogan in the presence of the witness Muir. The accused made no reply."

The only two witnesses named in the list of witnesses were Police Constables Cogan and Muir.

[3] The respondent pled not guilty and was admitted to bail. Intermediate and trial diets were fixed. On 15 November 2007, according to her solicitor's file, her solicitor wrote a letter to the procurator fiscal's office, in what appear to be standard terms, which included the following passage:

"Please provide a list of witnesses made known to you. Please also provide to me copies of the witnesses' statements and appropriate information about previous convictions of, or outstanding charges against, those witnesses whom it is proposed to call at trial."

This letter was not replied to. There is no indication that it was received, nor that any follow-up letter was sent in the course of the next twelve months.

[4] On 21 December 2007 the case called at intermediate diet and was continued to the trial diet fixed for 11 January 2008. At the trial diet on the latter date a defence motion to adjourn was granted. The reason for the motion was that the respondent's solicitor wished to obtain from the Crown a copy of the Form 4:8:1 prepared by the police. The respondent had of course already received a copy of this document at Helen Street Police Office on 31 October 2007. A further copy was sent to her solicitor by the procurator fiscal depute on 15 February 2008. On 11 January 2008 a new trial diet was assigned for 28 March 2008, but on that date the respondent was ill and failed to appear. On defence motion the trial was adjourned to 15 August 2008. It later emerged that one of the two police witnesses would be on annual leave on that date. The respondent's solicitor was informed of this and on 15 August 2008 a Crown motion to adjourn the trial was granted of consent. A new trial diet was assigned for 4 December 2008.

[5] On 4 December 2008 the respondent's solicitor moved for the case to be deserted simpliciter. It was alleged that the Crown had failed to meet its disclosure obligations as police statements had not been disclosed to the defence. It is averred in the Bill of Advocation:

"In opposing the motion, the prosecutor advised the said Stipendiary Magistrate that the Crown was not in possession of statements in this case and that a summary of evidence and a list of witnesses had been disclosed to the Respondent's agents. Both Crown witnesses were present at Court and would have been available to be precognosced by the Respondent's agent if they had not already been precognosced by the Respondent's agents prior to the said diet. ... No statements exist in the case. The Crown's obligation to disclose statements does not extend to cases where they have not been created and do not exist."

Before us, counsel for the respondent did not seek to contradict the averments in this passage, apart from the last sentence, for the reasons given below.

[6] In her report to this court, the stipendiary magistrate states that at the intermediate diet on 21 December 2007 and the trial diet on 11 January 2008, "the respondent appeared with her solicitor and on both occasions full disclosure was requested and it was not provided by the complainer and the trial was adjourned."

Apart from what is stated in the report, there is no minute or other record of any such request having been made, apart from the letter dated 15 November 2007 (assuming it to have been sent and received). The information before us is that the adjournment was granted on 11 January 2008 because the respondent's solicitor wished to obtain a copy of Form 4:8:1, and this is borne out by a copy letter by the procurator fiscal depute dated 15 February 2008 enclosing such a copy "as requested at the previous trial diet".

[7] The stipendiary magistrate's report concludes:

"On 4 December 2008 the respondent appeared before me and was represented by Mr Bannigan, Solicitor, Glasgow who intimated that he had still not received disclosure from the complainer and was unable to proceed to trial and requested that the case be deserted simpliciter. I heard the Procurator Fiscal Depute who stated that they had no correspondence requesting disclosure and I pointed out that a request had been made in court by the Appellant's [sic] solicitor on at least 3 occasions. The Procurator Fiscal Depute then advised that it was not the practice of the Crown in such cases in Glasgow to provide full statements and full disclosure. I deserted the case simpliciter.

In so doing I took account of the fact that this was a summary case which was now 15 months old, the respondent had appeared in court with her solicitor on four occasions and disclosure and full statements had been requested by the respondent's solicitor on each calling since 21 December 2007. The complainer had ample time to provide full disclosure and statements and at each calling of the case was either unable or unwilling to do so."

[8] Much of this narrative is difficult to reconcile with information with which we were supplied by the Solicitor General. There is a longstanding practice of proceeding to trial in cases prosecuted in Glasgow District Court without full statements being requested by the Crown from the police. Obviously, if no such statements are requested and none therefore exist, there are no statements to disclose. What happens is that a police report is prepared and sent to the procurator fiscal, and this forms the basis of the summary of evidence which is served on an accused person along with the summary complaint. We have been shown an excerpt from a memorandum by the Area Procurator Fiscal, Glasgow to the Deputy Crown Agent dated 28 November 2006 which contains the following statements:

"... [The] Glasgow Divisions of Strathclyde Police would find it exceptionally difficult ... to deliver statements prior to intermediate diet to the Crown in Glasgow for Sheriff summary cases and impossible to deliver in respect of District Court cases. ... ".

... [W]hen considering the equality of arms issues which falls to be considered from the ECHR perspective in respect of the right of an accused to a fair trial I considered that this was satisfied by the defence being provided with the list of witnesses and the summary of the narrative from the SPR [Standard Police Report] which is all that is in the possession of the Crown in such cases. ...

In January 2006 I met with the President of the Glasgow Bar Association and advised that the previous local Crown practice would continue in all cases which meant that except in District Court statements would be requested from the police in cases due for trial and in addition, in light of the decisions in Holland and Sinclair, that all such statements would be disclosed when received."

We conclude from these passages that the practice of not requesting police statements in all summary cases prosecuted in the District Court must have been well known to the Crown, the defence and to magistrates and their clerks. Counsel for the respondent did not assert otherwise.

[9] In light of this, it is very difficult to make sense of what was going on in the present case. The Crown had no statements to disclose. The respondent's solicitor, assuming he made the requests narrated by the stipendiary magistrate, might have been expected to know this. Whether or not this particular stipendiary magistrate knew of the Crown practice in these matters, the procurator fiscal depute ought to have been able to tell her so. Whether or not the procurator fiscal depute clearly stated the Crown position, the stipendiary magistrate appears to us to have misunderstood it. This was not a case in which any statements existed; there were therefore no existing statements which the Crown was under a duty to disclose; and there was no failure on the part of the Crown to make disclosure in the manner in which it appears to have been understood by the stipendiary magistrate.

Further discussion

[10] What is at issue here is the respondent's entitlement to a fair trial within the meaning of Article 6 of the European Convention on Human Rights. The case law shows clearly that a high test falls to be applied to the question whether it can be said, in advance of a trial, that an accused person will not receive a fair trial. In Transco plc v HM Advocate (No. 2) 2004 SCCR 553 it was held that the devolution minute which had been lodged in that case could succeed only if the appellants could show that the proceedings would necessarily be a breach of their Convention rights or would inevitably result in the proceedings as a whole being unfair in the Convention sense: see per Lord MacLean at paragraph [7], Lord Osborne at paragraph [24] and Lord Hamilton at paragraph [44]. Reference may also be made to Dyer v Von; Dyer v Hume 2008 SCCR 265 in which Lord Johnston, in delivering the Opinion of the Court, said at page 270 that

"... article 6 in its main content is concerned with a fair trial and such cannot be determined as an issue except in the most exceptional and blatant cases ... until after a trial has taken place."

The formulation of the test for unfairness prior to trial therefore involves the use of words such as "necessarily", "inevitably" and "exceptional and blatant".

[11] There is no indication whatever that the stipendiary magistrate in the present case has applied such a test in deciding to desert the case simpliciter. She may, perhaps understandably, have run out of patience with what she perceived to be the Crown's shortcomings. But there is no sign that she directed her mind to the proper test in reaching her decision. For that reason alone, it appears to us that the matter is at large for our consideration. If this were not so, and the stipendiary magistrate had directed her mind to the proper test, we would have found it difficult to hold that she misdirected herself in the situation as she understood it to be. The Crown should have stated its position clearly enough to avoid any misunderstanding, and does not appear to have done so. In such a situation, there would have been little scope for interference by this Court.

[12] In addition to the materials already referred to, we have been provided by the Solicitor General with copies of the relevant entries in the notebooks of the two police officers; and copies have also now been supplied to the defence. The Solicitor General told us that, when they attended court on 4 December 2008, the police officers had their notebooks with them. Had the respondent's solicitor precognosced the police officers that morning or on an earlier date, reference would have been made to the entries in the notebooks. Having seen these entries ourselves, we do not regard them as containing any material information which is not contained in the summary of evidence; and counsel for the respondent was unable to submit that they did. However, the entries were primary contemporaneous records; they were not quoted, or even mentioned, in the Crown's summary of evidence; the terms of the entries and summary were not identical; and in such circumstances we consider that a question arises as to whether the Crown was under a duty, in this case, to take active steps to disclose the terms of the entries in the police notebooks prior to the trial diet. We express no opinion on that matter, given that the entries have now been disclosed, and are content that the Crown should continue to judge the extent of its obligation of disclosure by reference to the individual circumstances of each case.

[13] There is of course a wider picture. It became clear from the submissions by counsel for the respondent that the Crown practice outlined above in Glasgow District Court has not met with universal approval by those practising there. He referred to "daily frustration". Counsel went so far as to submit that the Crown could only fulfil its duty of disclosure by requesting the preparation by the police of formal statements in every case, so that they could then be disclosed to the defence.

[14] We can find no trace in the authorities of any such requirement. For many years it has been recognised that an accused person is entitled to a fair trial. An aspect of this is that the Crown has a duty at any time to disclose to the defence information in its possession which would tend to exculpate him or her. The position at common law was affirmed by this court, most recently and authoritatively, in McLeod v HM Advocate (No. 2) 1998 JC 67. Since the European Convention on Human Rights became part of our domestic law by virtue of the Human Rights Act 1998 and the Scotland Act 1998, the principle of equality of arms has been invoked. Reference may be made to the decisions of the Privy Council in Holland v HM Advocate 2005 1 SC (PC) 3, Sinclair v HM Advocate 2005 1 SC (PC) 28 and McDonald v HM Advocate 2008 SCCR 954. As it was put by Lord Rodger of Earlsferry in the latter case, at paragraph 50:

"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 ... "

There have been a series of subsequent decisions of this court, of which the most important is McInnes v HM Advocate 2008 SCCR 869 (in which leave was recently granted to appeal to the Privy Council).

[15] What may be taken from these cases is that the Crown is under a duty inter alia to disclose to the defence any existing police statements of any witnesses on the Crown list. Mr Shead sought to argue, under reference to a passage in the Opinion of Lord Rodger in Sinclair at paragraph [49], that the Crown had a duty to require police statements to be brought into existence so that they could be disclosed. But in our view this is not a correct reading of the passage: Lord Rodger was only speaking of statements already in existence.

[16] There are steps which it is open to the defence to take. In particular by section 301A of the Criminal Procedure (Scotland) Act 1995, as inserted by the Criminal Proceedings etc. (Reform)(Scotland) Act 2007, and in force from 10 December 2007, it is open to the defence to apply to the sheriff for an order granting commission and diligence for the recovery of documents or an order for the production of documents in connection with any solemn or summary proceedings in that Sheriff Court or any summary proceedings in any JP court in that Sheriff Court district.

[17] But it is not of course for the defence to make the running: the Crown has an active duty of disclosure. This is reflected in Part 6 of the Criminal Justice and Licensing (Scotland) Bill which has recently been introduced into the Scottish Parliament. This Part of the Bill was preceded by Lord Coulsfield's Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland, published in August 2007. In discussing the principles for summary cases, Lord Coulsfield said at paragraph 9.4:

"... I do not think that the police or prosecutors should be put in the position of being obliged to create witness statements which they would not think necessary for their own purposes in order to have something to disclose."

At paragraph 9.6, in speaking of the summary of the evidence, such as that provided in the present case, he said:

"That summary should in my view, be sufficient to discharge the prosecutor's duty in the first instance and to enable the defence to give initial advice. If the accused pleads not guilty at the first diet, further information should be provided to the defence, including a provisional list of witnesses and copies of any statements or other material which could undermine the prosecution case or assist the defence. At that point the defence should also be entitled to ask to see information held by the Crown and the police which records what Crown witnesses have said, whether in the form of statements or typed copies of notes."

At paragraph 9.9 he said:

"I therefore think that the duty of disclosure does not require the creation and disclosure of formal statements of every prosecution witness in every summary prosecution where there is a plea of not guilty, let alone in the much greater number of cases which the police report to the procurator fiscal. It should, in my view, be quite sufficient to protect the fairness of the trial if the defence is entitled to ask for either copies of, or an opportunity to inspect, records of what has been said by the witnesses whom the Crown propose to use, which the Crown and the police have, in the form in which they already exist, that is, as full statements or copies of notes."

Nowhere in Lord Coulsfield's report, or in Part 6 of the Bill which has been drafted on the basis of his recommendations, is there any suggestion of a requirement on the part of the Crown to cause statements to be brought into existence where none have hitherto existed.

[18] It is entirely clear to us from the authorities that what the Crown is under a duty to disclose is information. Information may be recorded in many forms. Obviously, for the purpose of disclosure, it must be in a form which is capable of being communicated by the Crown to the defence. In the present case it was disclosed prior to trial in the form of the summary of evidence, the list of witnesses, and Form 4:8:1. To these may now be added the copies of the entries in the police notebooks. We are quite unaware of any disclosable information which has not thus been disclosed to the defence. That being so, it appears to us that the Crown has performed its duty of disclosure.

[19] The only document which has been brought into existence and of which a copy has not been provided to the respondent's solicitor is the police report. The Solicitor General accepted that if a police report contained any disclosable information which for some reason was not incorporated in the summary of evidence, then that information would require to be separately disclosed. But that was not the case here.

[20] Taking all these considerations into account, we are satisfied that no justification existed for deserting the case simpliciter in advance of the trial, and that the present appeal is well-founded and must be allowed.

[21] It remains to be added that, very shortly before the hearing, a devolution minute was lodged on behalf of the respondent, and her counsel moved us to allow it to be received. The late lodging of devolution minutes in appeals has become a regrettably common occurrence. Rule 40.5(1) of the Act of Adjournal (Criminal Procedure Rules) 1996 provides that no party to criminal proceedings shall raise a devolution issue in those proceedings except as in accordance with Rule 40.2, 40.3 or 40.4, unless the court, on cause shown, otherwise determines. The applicable rule in the present case is Rule 40.3. The respondent is a party to summary proceedings, and the fact that the Crown has appealed by way of Bill of Advocation does not alter her position. No devolution minute was lodged in the District Court. No cause was shown to us why, particularly at such a late stage, we should allow a devolution issue to be raised now. We accordingly refused the respondent's motion.

Decision

[22] For the foregoing reasons, we shall pass the Bill. We shall recall the decision of the stipendiary magistrate dated 4 December 2008 and remit the case back to the District Court with directions that a fresh diet of trial be fixed and that the District Court should otherwise proceed as accords.