John Joseph McCarthy v. Her Majesty’s Advocate [2020] HCJAC 52

Description

Note of Appeal Under Section 130 of the Criminal Justice and Licensing (Scotland) Act 2010:- The appellant was indicted to a Preliminary Hearing at Glasgow High Court on 28 September 2018 in relation to alleged contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971, namely, being concerned in the supply of cocaine and heroin between December 2014 and June 2018 at an address in Glasgow. Here the appellant appealed against a first instance decision of the High Court on whether section 121 of the Criminal Justice and Licensing (Scotland) Act 2010 relating to the “Prosecutor’s duty to disclose information” applies in circumstances in which both the Crown and the police had stated to the appellant’s legal representatives that the information did not exist and the appeal also raised wider issues regarding the statutory disclosure regime. On 26 September 2018 a defence statement was lodged which gave little in the way of information about the nature of the appellant’s defence and stated there were no points of law to raise nor was there any information that he wanted the prosecutor to disclose. There was a reference to a special defence of coercion which was described as a matter of “ongoing enquiry”. The court was advised that the appellant was prepared for trial and a trial was fixed for 10 January 2019. Prior to the trial the appellant lodged a preliminary issue minute in relation to whether a search warrant had covered the locus where the drugs had been found which the judge refused to allow to be received as it was late. Thereafter, an incompetent Bill of Advocation followed by an incompetent Petition to the Nobile Officium, to challenge the judge’s decision, were lodged. On 15 January 2019 when the indictment called for trial senior counsel for the appellant advised the court that he and his agents were withdrawing and the trial was adjourned until 18 March 2019 with a continued Preliminary Hearing assigned for 5 March. The CPH on 5 March was continued to 11 March when a special defence of coercion was allowed to be received late in which it was stated inter alia that:- “…any involvement with controlled drugs which the accused ... may have had in the matters set out in the indictment was against his will and solely as a result of threats of violence made against him by an adult Caucasian male person known ... only by the name of ‘Lee’, whose further personal details and whereabouts are presently unknown, which threats of violence overbore his will and placed him in fear of his life and amounted to coercion.” A motion was made on behalf of the appellant at that stage to adjourn the trial diet to allow the appellant’s representatives an opportunity to identify and trace “Lee” which was granted and a new trial was fixed for 10 July 2019. On 16 July 2019 when the indictment next called senior counsel for the appellant advised the court that he and his agents were withdrawing and the trial was adjourned until 4 November 2019 with a CPH fixed for 19 August 2019. On 19 August the CPH was continued to the trial diet. On 8 October 2019 the appellant’s agents sent a “supplementary defence statement” to the Justiciary Office which stated that although the nature of the appellant’s defence was one of coercion, he had also been “the victim of entrapment by a state agent” and that he wished to raise a plea in bar of trial or a preliminary issue objecting to the admissibility of evidence. The supplementary defence statement also made a request for the prosecutor to obtain from the police and disclose certain information relating to undercover police officers, the involvement of “Lee”, Kirsty McKay and “Caroline” and information forming the basis of the craving of a search warrant for the locus. The Crown had previously advised the appellant’s legal representatives that “Lee” was not an undercover police officer and a letter from a detective chief inspector of Police Scotland t to the appellant’s agents, dated 9 January 2019, also confirmed this. On 29 October 2019, the appellant lodged an application for a ruling on whether section121(3) of the 2010 Act applied to the information requested. The application called at the High Court on 1 November 2019 when the Crown advised the court that the information sought did not exist and could therefore not be given to the defence and that it was not information as defined by section 121(3) of the 2010 Act. The judge held that the information sought was not covered by the section as it would neither materially weaken nor undermine evidence likely to be led by the prosecutor and the application was refused. A new trial was fixed for 23 March 2020. The appellant appealed against the decision of the judge from 1 November 2019 it being contended that the judge erred in failing to make a ruling on whether section 121(3) applied to the information in the application and in failing to hold that it did. It was submitted that the information sought would assist the appellant in his contention that he had been entrapped and would provide evidence of the roles of Kirsty McKay and “Caroline” in that. It was submitted that section 128 had two purposes:- (1) to secure a ruling when there was a disagreement on the relevance of information; and (2) to inform the authorities of their duty to disclose the information. It was submitted that the judge had failed to have regard to the effect which a judicial declaration would have on the Crown and the police in making them investigate and disclose the information sought. It was further submitted that there was a duty of enquiry on the Crown and failure to meet that duty gave rise to a compatibility issue in that the trial would not be fair or in accordance with the law. The Crown advised the court that enquiries had been made with the police and the information received by them was that no covert tactics or covert officers had been involved and no surveillance had been used. It was submitted that the Crown had no details of Lee, Kirsty McKay or Caroline and that the search warrant had been obtained on the basis of intelligence received and that in all the circumstances the judge had been correct. Here the court refused the appeal. The court went on to provide guidance to practitioners in relation to the procedural framework relating to the statutory disclosure regime. In particular, the court reiterated that the circumstances which allows an accused to ask for a ruling on whether section 121(3) applies to the “information in question” is where the Crown is in possession of information and there is a dispute about whether it falls within the parameters of section 121(3), namely, whether it materially weakens the Crown case or strengthens that of the accused and it permits the court to rule on the matter in dispute. In the present case the court considered that a ruling that the Crown must disclose information that does not exist was “an academic exercise which serves no purpose” and the application for a ruling that such information was disclosable should be refused. The court went on to highlight the differences between disclosure and recovery and the limitations of the Crown obligations in relation to pursuing defence enquiries.