Colin Andrew Gordon Henderson v. Her Majesty’s Advocate [2017] HCJAC 43

Note of appeal against conviction:- On 21 March 2016, at Dundee Sheriff Court, the appellant was convicted after trial on indictment of a breach of the peace at a bar in Dundee by brandishing a knife and lunging at persons with it. As a result, the appellant was sentenced to 2 years imprisonment. In advance of the trial the appellant’s solicitors had requested CCTV footage from the locus, however, the police had destroyed it. The appellant appealed against his conviction on the grounds that the destruction of the CCTV footage resulted in an unfair trial and a miscarriage of justice had occurred. The background was that the day after the appellant appeared on petition the agents requested witness statements and any “recorded media” from the Crown. Around 3 months later disclosure of witness statements took place by which point the CCTV footage had been deleted. The appellant was subsequently indicted following which the agents requested disclosure of public space CCTV and and CCTV from the specific bar where the offences were said to have taken place. The defence statement included a request for CCTV for the general area and the bar. At the first diet of 1 September 2015 the presiding sheriff suggested that the defence should seek to obtain the CCTV footage directly rather than requesting the Crown to carry out new investigations and a defence motion for a continued first diet was refused and the case continued to trial. At the trial on 28 September 2015 the appellant dismissed his agent. The sheriff adjourned the trial to a sitting of 26 October and fixed a first diet for 13 October when the new agent explained that he had only just been instructed but did not seek an adjournment but continued the first diet to 20 October when the issue of the CCTV was again raised. Following further inquiries conducted by the Crown it was ascertained that the CCTV images had been very vague, had not shown anything of evidential value and had been deleted. After some further procedure the case was due to proceed to trial on 18 March 2016. At the start of the trial the appellant dispensed with the services of his solicitor on the basis that he had been told that there was no CCTV footage, however, he believed that there was. The sheriff refused to postpone the trial as he was satisfied there was no useful footage in existence and the appellant represented himself at the trial. The appellant was subsequently convicted. It was submitted on behalf of the appellant that he had a right to have disclosed to him material necessary for the proper preparation and presentation of his defence and his solicitor might have taken a different view of the CCTV images from that of the police who had considered there to be nothing of evidential value on it. It was submitted that the material had been withheld and ought to have been disclosed. In the absence of an opportunity to assess the footage the appellant’s Article 6 rights had been infringed and the test in a non-disclosure appeal of whether a jury might have reached a different verdict had they been aware of the withheld information had been met. On behalf of the Crown it was submitted that there had been no unfairness demonstrated and any failure to disclose did not necessarily result in a trial being unfair and, in the present case, there had been considerable other evidence led implicating the appellant which the jury had assessed. Here the court refused the appeal. The court noted that the police did not forward the footage to COPFS as a result of which the disclosure regime in the Criminal Justice and Licensing (Scotland) Act 2010 did not apply and no consequent disclosure obligation on the Crown arose. Whilst the defence wished to view the footage, by the time specific reference to he locus was made the footage had been destroyed by the police. As such, it was open to the appellant to intimate a plea in bar of trial based upon oppression in light of the destruction of the footage and an unfair trial being inevitable. Similarly, if it was contended that a compatibility issue arose from the destruction, a compatibility minute could have been raised, however, it was not. The court observed, however, that in the absence of bad faith (and none was alleged here) then any such point was unlikely to succeed. The court also suggested that the police officers who had viewed the footage and considered it worthless could have been cross-examined in relation to its content and the destruction of it. The court concluded that from the information now available, including the investigations that had been carried out, there was nothing in the footage which was relevant to the charge and its production was unlikely to have made any difference to the jury’s verdict.