Her Majesty’s Advocate v. (1) AM and (2) JM [2016] HCJAC 34

Appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995:- On 24 June 2015, at Glasgow High Court, a judge at the Preliminary Hearing ordered the disclosure of recordings of police and social work Joint Investigative Interviews of the complainers to the respondents’ agents. The Crown appealed against that decision. The circumstances were that the respondents are aged 16 and 15 and have been indicted on two charges of sexual abuse committed against 2 younger boys contrary to sections 18, 20 and 21 of the Sexual Offences (Scotland) Act 2009. Special measures have 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, namely the recordings of the JIIs, by virtue of section 271I and M of the Criminal Procedure (Scotland) Act 1995. The discs and the transcriptions were listed on the indictment, however, the Crown refused to provide copies of the discs to the defence and disclosed the evidence by enabling the accused to inspect them. The respondents wished to have the discs viewed by a forensic psychologist to consider the fairness of the interview process, however, the Crown also refused to provide copies of the discs to the experts. In advance of the Preliminary Hearing the respondents lodged preliminary issue and compatibility issue minutes relating to the non-disclosure of the discs. The first respondent’s preliminary issue alleged oppression on the part of the Crown due to the non-disclosure and inaccuracies in the transcriptions of the JIIs. The second respondent’s preliminary issue related to the accuracy of the transcripts and to reference within the JIIs to crimes not charged. The compatibility minutes contended a breach of Article 6(3)(b) of the European Convention in that the defence had not been afforded adequate time and facilities for the preparation of their defence and the principle of equality of arms applied. In terms of section 160 of the Criminal Justice and Licensing (Scotland) Act 2010 the prosecutor may disclose the information “by any means” and may “disclose the information by enabling the accused to inspect it at a reasonable time and in a reasonable place”. On behalf of the appellant it was submitted that the judge had erred in holding that the respondents’ Article 6 rights were breached by the decision not to provide copies of the discs but to disclose the content by access and it could not be said that it would inevitably result in an unfair trial. It was further submitted that Article 6(3)(b) was not absolute and the Lord Advocate’s Code of Practice was clear and consistent and enabled parties to apply a practice balancing the rights of an accused person and those of the witnesses. It was submitted on behalf of the respondents that the judge at the Preliminary Hearing had not erred. Here the court refused the appeal. The court stated that it was not so much a question of disclosure but, rather, given the labels were referred to on the indictment on the list of labels the respondents were entitled to see the labels, not as a result of a claim under the disclosure regime but in terms of section 68(2) of the Criminal Procedure (Scotland) Act 1995. The court stated that 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 rather than lodging a preliminary or compatibility issue minute. The court observed that generally such an application would be granted.