APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Brodie Lord Philip	[2015] HCJAC 4 HCA/2014/002707/XC   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL AGAINST A REFUSAL TO GRANT A COMMISSION TO RECOVER DOCUMENTS   by   DM Appellant;   against   HER MAJESTY’S ADVOCATE Respondent: _____________

Appellant: Labaki; Paterson Bell (for Reilly, Cassidy & Co, Glasgow)

Respondent: Bain AD; the Crown Agent

 

2 July 2014

[1]        The appellant is indicted on various charges of public disorder involving, amongst others, his wife and on charges of assault upon his wife (the complainer) during the period between 2009 and 2013.  He seeks the recovery of a psychiatric report on his wife, prepared by a Dr Anderson, in August or September 2013, in connection with different proceedings against her for assaulting the appellant.  The position in relation to these formerly parallel proceedings is that the report was obtained by the complainer, with a view to demonstrating that she was not fit to stand trial by reason of her mental state.  That state prohibited her from engaging meaningfully in the trial process.  The production of the report resulted in the adjournment of the trial diet.  Ultimately the respondent deserted the proceedings pro loco et tempore pending the resolution of the present case, partly, but not exclusively, because of what was said in the report.

[2]        The appellant has already obtained psychotherapy and general practitioner records relating to the complainer’s mental health.  These are said to reveal that she suffers from anxiety and depression.  The appellant contends in the petition that, during September 2013, the complainer was suffering from a “major depressive disorder” and that her complaints against the appellant were made in an attempt to escape prosecution herself.  It is said that the report will allow the credibility and reliability of the complainer to be explored, that it is in the interests of justice that the report be given to the appellant as it may be of material assistance in the preparation of his defence and that he would be materially prejudiced if he did not have the report.

[3]        It was accepted before the sheriff that the appellant was essentially speculating about the report’s content.  The sheriff had regard to the test in McLeod v HM Advocate 1998 JC (LJG (Rodger) at p 80), to the effect that a party seeking the recovery of documents requires to explain why he wants them.  The court will not grant an order for recovery unless it is satisfied that that recovery will serve a proper purpose and that it is in the interests of justice to grant the relevant order.  The court requires to be satisfied that the material sought will be of material assistance in the proper preparation or presentation of the defence.  The sheriff noted that the appellant had already obtained the medical records and determined that it had not been shown that recovery was likely to be of material assistance in these circumstances.  He balanced the interest of the appellant with the right of the complainer to respect for her private life under Article 8 of the European Convention.  He had regard to the specific purpose for which the report had been obtained.  He did not consider that the interests of justice required recovery. 

[4]        The appellant maintains, in short, that the sheriff erred in his application of the test to the circumstances.  The appellant’s general position is that his wife does not suffer from any form of mental disorder.  On the other hand, if the report suggests otherwise, he might be able to use that material to demonstrate some undefined effect on credibility or reliability.  If the position is that she does not suffer from a mental disorder, he will be able to demonstrate that she has effectively attempted to defeat the ends of justice by pretending otherwise. 

[5]        The sheriff applied the correct test and did so in a satisfactory manner.  It appears that the exercise in which the court is being asked to engage is the classic “fishing” diligence.  It is also designed in part to pursue an entirely collateral matter, that is to say whether the complainer has misled the prosecution in some way about the state of her mental health.  For material in a psychiatric report to be relevant in this case, it would either have to support a proposition, which is nowhere alleged, that the appellant’s mental state is such that she is unable to distinguish between right and wrong, or that she is suffering from some specific condition which causes her to lie or to be unreliable. 

[6]        In any event, the appellant is not disadvantaged in not obtaining this report.  He already has the primary evidence in the form of the complainer’s medical records.  The report here was for a discrete purpose in relation to other proceedings.  In that context the complainer’s rights under Article 8 for respect for her private life must be given some weight, as indeed the sheriff did.

[7]        In short, in the absence of any apparent relevance of the material, speculatively said to be contained in the report, to the issues which are to be explored at trial, the court does not consider that it is in the interests of justice to allow the recovery and this appeal is therefore refused.