M.A. v. Her Majesty’s Advocate [2022] HCJAC 23

Appeal under section 121 of the Criminal Justice and Licensing (Scotland) Act 2010:- The appellant was indicted to Glasgow Sheriff Court in relation to charges of fraud and money laundering in relation to an allegation that he had sold a flat he did not own. The case involved an allegation that the proceeds of sale went through the appellant’s bank account. The appellant’s position was that he denied any involvement in the offences and that an individual, TA, had access to the bank account at the relevant time. In advance of the first diet the appellant lodged a special defence of incrimination naming TA as the perpetrator (while acting along with others), and a defence statement which sought disclosure of “the entire case against the appellant and any evidence which may exculpate him and ... any evidence which may undermine the prosecution case”. The court scheduled a trial diet to begin on 16 August 2021 which was adjourned on joint motion. In advance of the adjourned trial diet on 25 April 2022, the appellant lodged a second defence statement in which further information was sought about TA:- (1) any relevant previous convictions and pending cases from any UK jurisdiction; and (2) any information whatsoever suggesting that he has been involved in similar criminality in the past. The sheriff refused the application and it is against that refusal that the appellant appealed it being contended that:- (a) the material should be disclosed in terms of section 121 of the Criminal Justice and Licensing (Scotland) Act 2010; and (b) the sheriff’s decision breached the appellant’s ECHR article 6 rights. The court allowed the application to be heard with some hesitation it being submitted on behalf of the appellant that there had been a material change in circumstances to allow a new defence statement to be lodged on account of (1) new counsel having been instructed; and (2) further information having be received from the appellant in relation to the incriminee. It was submitted on behalf of the appellant that the Crown is bound to disclose anything that might conceivably bear upon the defence and the PCs and information re TA ought to be disclosed, notwithstanding that he was not a defence witness. The court rejected that submission observing that if it was correct then it would be open to the defence to incriminate any well-known criminal and then insist on disclosure of his previous convictions. The court also rejected the argument that the sheriff’s decision infringed upon the appellant’s ECHR article 6 right to a fair trial. The court reiterated that the right to a fair trial does not require information to be disclosed unless it is material and the information sought here was not material, as it did not relate to a defence witness. The court went on to observe that the question of whether the appellant had not received a fair trial could only be determined at the conclusion of the prosecution, in the light of the totality of the procedure in the case. The court considered that the application amounted to little more than a fishing diligence and there was no basis for it to be granted. Further, the court considered that the granting of any such order in relation to TA would amount to an unwarranted invasion of TA’s article 8 rights.