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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Holland v. Her Majesty's Advocate [2004] ScotHC 39 (16 June 2004) URL: http://www.bailii.org/scot/cases/ScotHC/2004/39.html Cite as: [2004] ScotHC 39 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice Clerk Lord Penrose Lord Hamilton
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Appeal No: XC783/03 OPINION OF THE LORD JUSTICE CLERK in APPEAL by JAMES HOLLAND Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: M E Scott QC, Latif; Drummond Miller WS
Respondent:
Turnbull QC, AD; Crown Agent16 June 2004
Introduction
[1] On 22 April 2002 at Glasgow High Court the appellant was convicted of inter alia two charges of armed robbery. The first robbery, to which charge (2) related, was committed on 4 September 2001 at a flat in Rutherglen. The appellant was charged with having acted with two unnamed persons. The complainers, John Lynn and Alison Gilchrist, were the occupiers of the flat. Both were registered disabled persons. The second robbery, to which charge (3) related, was committed on 9 September 2001 at shop premises in Carluke. The appellant was charged with having acted along with his co-accused, Steven Foy. The complainer, Stuart Simpson, was the manager of the shop. [2] The court has already refused the appeal so far as it is based on the question of dock identification (Holland v HM Adv, 2003 SLT 119). The report of that decision sets out charges (2) and (3) and some of the background to the case. The appellant has insisted in two other grounds of appeal. They relate to the alleged failures of the Crown in its duty to disclose material information to the defence.Charge (2)
The robbery
[3] The complainers were at home awaiting the return of Miss Gilchrist's son, Jamie. Miss Gilchrist answered a knock at the door and found three men there, one of whom had a gun and one of whom had a knife. One of them grabbed her by the hair and dragged her through to the livingroom where she was forced to her knees. Her assailant put his hand over her nose and mouth. Miss Gilchrist managed to explain that she suffered from asthma and lung disease and that he would kill her, but he continued to keep his hand over her nose and mouth. He was wearing latex gloves. One of the other assailants, identified as the appellant, held a gun at Lynn's left temple. He too was wearing latex gloves. The men then tied the complainers' hands. They cut the cable to Lynn's computer, thinking that this was the telephone cable. They demanded money and jewellery. They pulled a ring from Miss Gilchrist's finger and a chain from around her neck. They pulled a chain from around Lynn's neck. They were unable to remove all the rings from Miss Gilchrist's fingers and seemed to be preparing to chop off her fingers with a kitchen knife when her son arrived on the scene. All three men then ran off.Pre-trial identification
[4] Lynn was unable, because of his defective sight, to identify any of the robbers. Miss Gilchrist attended an identification parade at which she picked out two stand-ins. Jamie Gilchrist attended an identification parade at which he identified the appellant, although there was later to be an issue as to whether he positively identified the appellant or merely recognised a resemblance.
The defence suspicions about the complainers
[5] Before the trial, the appellant told his counsel that he believed that the complainers on charge (2) were drug dealers and that they might be facing trial for drugs offences. [6] By letter dated 29 January 2002 the defence solicitors enquired of Crown Office whether Lynn had outstanding criminal charges facing him and, in particular, whether he had been indicted or was due to be indicted in the near future. By letter dated 7 February 2002 Crown Office asked the defence solicitors to explain the basis on which the request was being made and its relevance to the defence of their client. By letter dated 22 February 2002 the defence solicitors notified Crown Office that their enquiries suggested that Lynn might have been the target of a robbery because of criminal activity on his part and associations that he had made in that regard. They believed that he had an association with the appellant's co-accused, and that evidence of Lynn's conduct and character might cast doubt on the appellant's involvement in the matters in hand. By letter dated 6 March 2002 Crown Office stated that it was not in a position to disclose any such information.The evidence at the trial
[7] Both complainers spoke to the commission of the offence. Both identified Crown label (1) as being the gun used in the robbery or as being similar to it. Both said that the assailants had asked where the panic button was and that the existence of the panic button was not known outwith the family circle. [8] In court, Miss Gilchrist identified both the appellant and Steven Foy, although Foy was not charged with charge (2). She identified the appellant as the man with the gun. She said that she had not been sure at the identification parade. [9] In her evidence Miss Gilchrist said that one of the assailants asked her, "Where's the gear?" When asked if she knew what "gear" meant, she said that she did not know. In her police statement Miss Gilchrist had said that the assailant said, "Where's the drugs, where's the money?" Miss Gilchrist also said that one of the robbers asked her, "Where's the panic button?" She said that she did not know what he was talking about. [10] When counsel for the appellant cross-examined her on her identifications at the parade, Miss Gilchrist explained that she had felt self-conscious, having heard laughter which she thought was directed at her. When she was asked if she was more likely to be accurate twenty two days after the event than she was at the trial, she replied "I think I am more likely to be accurate when I see them in front of my face, the two that was in my house and I know it was them." By this, I take it that she meant that she saw the accused directly in front of her at the trial instead of being behind a screen, as would be the case at the identification parade. [11] Lynn confirmed that there was a panic button in the flat. He said that no one would have known about it, other than Miss Gilchrist and members of his own immediate family. [12] Jamie Gilchrist identified the appellant in court as one of the robbers. [13] Anne Lynn, Lynn's sister, was the girlfriend of Steven Foy. She was a Crown witness. She said that she knew about the panic button, as did everyone who came into the house. She lived in a flat owned by Lynn. The appellant had stayed overnight at that flat from time to time. At the date of the robbery, Lynn and Miss Gilchrist were on bad terms with her. On the day before the robbery, Lynn had served an eviction notice on her. [14] Anne Lynn said that she was always falling out with her brother and that he always wanted her to look after drugs for him. She said that the two complainers were drug dealers and were involved in prostitution. This line of evidence was given in answer to questions by the advocate depute. The advocate depute did not suggest to Miss Lynn that her evidence on this point was untruthful.The Crown case
[15] The Crown relied on the identification of the appellant in court by Miss Gilchrist and Jamie Gilchrist (cf Holland v HM Adv, supra); the fact that the appellant was found to be in possession of the gun which Lynn and Miss Gilchrist had identified at the trial; and the circumstantial evidence that the appellant had access, through his co-accused and Anne Lynn, to the special knowledge that there was a panic button in the flat.The case for the defence
[16] The appellant's defence was that the identification evidence was unreliable. The question of a pending prosecution, or of the complainers' involvement in drug dealing, was not put to either complainer by the defence.Charge (3)
The robbery
[17] Two men followed the complainer into the shop at 8 am when he was opening it. One of them put his arm round the complainer and held a gun to his left temple. They forced him upstairs into the cigarette room and pushed him to his knees. They forced him to open the safe. They robbed him of cigarettes, cash and telephone cards. They then locked him in the shop and escaped. The complainer identified label (1) as being the gun used in the robbery or as being similar to it.Pre-trial identification
[18] The complainer attended an identification parade at which he identified two stand-ins.
The evidence at the trial
[19] The complainer identified the appellant and the co-accused as the robbers. He said that they wore latex gloves. [20] The Crown led evidence that when the appellant was detained by the police six days after the incident to which this charge related, he was found to be in possession of label (1).The Crown case
[21] Since the complainer was the only eye-witness to this charge, the Crown sought corroboration on a Moorov basis. The advocate depute relied on the fact that the two robberies were committed within five days of each other and that the modus operandi was similar in each case. In each case two robbers took part; a gun was used; and the robbers wore latex gloves. The gun was held against the left temple of Lynn and Stuart Simpson; and Miss Gilchrist and Stuart Simpson were forced to their knees.The defence case
[22] The defence case was that the evidence of identification was unreliable, especially in view of the evidence of the identification parade.
Post trial events
[23] On 21 June 2002 Lynn and Miss Gilchrist appeared at Glasgow High Court on charges of dealing in heroin. Lynn pled guilty to a restricted charge The court was told that he had more than £3,000 hidden in a safe in his house and that he had £1,096 in his trouser pocket and sums of £600 and £188 hidden behind an electric cable in his road. He had been found with ten bags of heroin and was later caught selling a bag of heroin to an addict. The Crown accepted Miss Gilchrist's plea of not guilty. [24] Since then, those acting for the appellant have established that Lynn and Miss Gilchrist appeared on petition on these charges on 12 July 2001. The indictment against them libelled a latitude from 19 January 2001 to 1 June 2001; but Lynn's plea was restricted to the period from 19 April 2001 to 1 June 2001. The course of drug charged against both Lynn and Miss Gilchrist and the restricted course of dealing to which Lynn pled guilty therefore pre-dated the robbery in charge (2) in this case and the trial of the appellant was concluded a matter of weeks before the trial diet at which Lynn's and Miss Gilchrist's pleas were tendered and accepted.The Crown disclosure concerning the identification parade in which Miss Gilchrist took part
[25] We have set out the background to the identification of the appellant by Miss Gilchrist in our earlier judgment. To that background we should add that on 7 July 2003, the day before the previous hearing in this appeal, the advocate depute told senior counsel for the appellant that he had come across certain information among the Crown papers regarding the identification parade in which Miss Gilchrist took part. He gave her a photocopy of part of the summary attached to the Crown precognition relating to that question. It indicated that, when precognosced, Miss Gilchrist said that after the parade a police officer had told her that she had not done too well.
The present grounds of appeal
[26] The two grounds of appeal with which we are now concerned are (a) that the Crown was in breach of its obligation of disclosure by failing to inform the defence that the complainers on charge (2) were facing charges on indictment for serious drugs offences relating to the locus at about the time of the robbery; and (b) that the Crown was in breach of the same obligation by failing to inform the defence about the reported remark by the police officer referred to by Miss Gilchrist at precognition. [27] Both of these grounds of appeal are based upon the Crown's obligation under Scots law to disclose material information to the defence; but the appellant also pleads that he did not receive a fair trial, contrary to his rights under article 6 of the European Convention on Human Rights (the Convention); that the failure of the Crown to disclose the relevant information, being in breach of article 6, was ultra vires in terms of section 57(2) of the Scotland Act 1998, and accordingly that a devolution issue arises in terms of Schedule 6 to the Act.Submissions for the parties
For the appellant
[28] Counsel for the appellant submitted that in McLeod v HM Adv (1998 SCCR 77, at p 98) a court of five judges held that the Crown tradition of disclosure referred to in Downie v HM Adv (1952 JC 37, Lord Justice General Cooper at p 40) involved a positive duty on the Crown "at any time to disclose to the defence information in their possession which would tend to exculpate the accused." In Maan, Petr (2001 SCCR 172, at para [27]) that duty was held to extend to the provision not only of information exculpating the accused but of information tending to undermine the Crown case, for example in relation to the credibility of a Crown witness. [29] Counsel for the appellant submitted that if she had known at the trial that the complainers on charge (2) were to be tried for drugs offences, she could have shown the whole picture in a different light. She could have attacked the credibility of the complainers on the basis that they were of bad character. She would have sought support for Anne Lynn's accusation that the complainers were drug dealers. She would have challenged Miss Gilchrist's evidence that she did not know what "gear" meant, and thereby undermined her credibility. She could have undermined the wider question of the motive and special knowledge of the appellant. She could have shown that any number of people knew about the panic button and about the complainers' drug dealing. As it was, Anne Lynn's unsubstantiated allegations against the complainers made her appear incredible and may have led the jury to prefer the complainers' evidence to hers. The Crown should have made the disclosure at the latest after Anne Lynn's evidence. [30] Counsel for the appellant also submitted that if she had known of the alleged remark by the police officer, she could have had the police officer and Miss Gilchrist precognosced on the point or could have put the point to Miss Gilchrist in cross-examination. As the trial judge had emphasised in his charge, identification evidence was the critical issue. The undisclosed information was patently important to that issue. It went to the credibility and reliability of Miss Gilchrist. It should have been obvious to the Crown that the remark made by the police officer to Miss Gilchrist was an irregularity and that it had a bearing on the quality of her evidence. The Crown should have disclosed the evidence about that comment as soon as it saw Miss Gilchrist's statement. The duty of disclosure continued thereafter and applied throughout the trial. [31] There had therefore been material irregularities at common law in both respects, the Crown's failure to disclose being equivalent to a wrongful exclusion of evidence (Hogg v Clark 1959 JC 7; Patterson v Howdle 1999 SCCR 41; McNee v Ruxton 1997 SCCR 291). Unless the court could say that the undisclosed information could not possibly have affected the overall fairness of the trial, there had been a miscarriage of justice at common law and a breach of article 6. [32] Counsel for the appellant also referred us to case law in which the obligation of the prosecution to disclose information that assisted the defence or undermined the prosecution had been recognised in England (R v H, [2004] UKHL 3; R v Keane, [1994] 1 WLR 746) and in Canada (R v Stinchcombe, [1991] 3 SCR 326; R v Taillefer; R v Dugay, [2003] 3 SCR 307). Counsel accepted that the principle on which she relied relating to the duty of disclosure was established in Scots law before the incorporation of the Convention.For the Crown
[33] The advocate depute submitted that there was no general obligation on the Crown to disclose information concerning the character of a Crown witness since that was not something that tended to exculpate the accused. Character could be relevant in the special circumstances of a case; but the duty of disclosure in such circumstances would arise only if the defence specified a cogent reason why such information was material (McLeod v HM Adv, supra, Lord Justice General Rodger at p 98D-E). The appellant's representatives had the opportunity to precognosce any witness on any issue, but had no right to demand that the Crown should communicate all of the results of the Crown's investigations, whether material or not. The Crown was obliged to disclose only information that materially assisted the defence case or undermined the Crown case (McLeod v HM Adv, supra, Lord Hamilton at p 101D-E). Where the defence sought to recover such information by means of a commission and diligence, it bore the onus of explaining the basis for the application and of satisfying the court that an order for recovery would be likely to assist materially in the preparation or presentation of the defence (McLeod v HM Adv, supra, at p 99B-D). [34] In this case, the defence request relating to Lynn did not explain why the information sought was material to the defence, nor in what way it would serve a proper purpose in relation to the charge itself or the proposed line of defence. The defence had not applied to the court for recovery of the material information. At the trial it had not been put to either Lynn or Miss Gilchrist that they were involved in drug dealing. As late as 27 March 2002 the defence served notice on the Crown of its intention to attack the character of Lynn and Miss Gilchrist. Counsel for the appellant had not followed up that notice by cross-examining Lynn or Miss Gilchrist on character, nor had she cross-examined Miss Gilchrist on her claim that she did not know what "gear" meant; nor had she put to her her police statement to the effect that the robbers had asked, "Where's the drugs, where's the money?" [35] In any event, it was obvious from the defence agents' enquiry that the defence had some information regarding drug dealing activities by Lynn. His sister was Foy's girlfriend and the appellant was Foy's associate. It did not matter where that information came from. Even now, there was no explanation why an attack on the character of Lynn and/or Miss Gilchrist would have tended to exculpate the accused. Even if such evidence would have enabled the defence to say that other parties could have carried out the robbery, that still did not overcome the problem of the positive identifications of the appellant by Miss Gilchrist and Jamie Gilchrist and the evidence about the request for the whereabouts of the panic button. [36] There would have been great danger in attacking the character of Lynn and Miss Gilchrist because the court might have decided that that opened up reference to the appellant's own character. That would have been "forensic suicide." The appellant's criminal record included two High Court convictions, each resulting in a sentence of six years, incurred in 1993 and 1997 respectively, the first being a conviction for inter alia assault with intent to rob and the other being a conviction for inter alia two charges of assault. [37] The Crown conceded that its failure to notify the defence of Miss Gilchrist's statement on precognition was a breach of its obligation of disclosure; but in the circumstances there had been no miscarriage of justice.Conclusions
The Crown's duty of disclosure
[38] In my opinion, the English and Canadian decisions that have been cited to us give only uncertain guidance on this point since in both of those jurisdictions the procedures for disclosure and the circumstances in which the obligation arises appear to be unlike ours. I think that we should decide this point on Scottish authority. [39] In McLeod v HM Adv (supra) the court defined the nature and extent of the Crown's obligation of disclosure as being "a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused." The existence of that duty, which was referred to half a century ago by Lord Justice General Cooper as a "tradition" (Downie v HM Adv, 1952 JC 37 at p 40), has been recognised for many years (McLeod v HM Adv, supra, at pp 97E-98A). But the duty does not extend to providing the defence with all information obtained by the Crown, no matter what its relevance may be; nor to attempting to second-guess the line of defence or the signficance to the defence of any particular information that is within the Crown's possession. The Crown will of course obtain information the significance of which to the defence case is obvious. In such a case the Crown's duty of disclosure arises immediately. But where the information is not of such significance, the Crown's obligation arises only when the defence explains satisfactorily why the information would be material and, in particular, why it would advance the defence case or undermine the Crown case. In that event, in my opinion, it is for the Crown to make a judgment as to whether the reasons tendered are cogent. If the Crown considers that they are not, it is open to the defence to apply to the court for a commission and diligence, in which event the court will make its own judgment in the matter (McLeod v HM Adv, supra, at p 98D-E). [40] The principle established in McLeod v HM Adv (supra) was securely established in Scottish criminal procedure before the incorporation of the Convention. For that reason, I consider that this case can be decided satisfactorily on that principle. As is so often the case, however, the appellant has also tabled a ground of appeal based on article 6 and has presented it in this case as a devolution issue. It is my impression that article 6 adds nothing of substance to this appeal; but since counsel for the appellant did not in the event present a separate argument on article 6, I think that it is unnecessary for us to consider it further.Failure to disclose the pending prosecution
[41] On this point, in my opinion, the Crown was not in breach of its obligation. I cannot see why it would be immediately apparent to the Crown that the pending prosecution of Lynn and Miss Gilchrist was material to the defence of the appellant on a charge of having robbed them. Furthermore, when the Crown asked the defence agents to explain why they considered the information sought to be material, it received no satisfactory answer. The Crown was therefore entitled to refuse to disclose the information sought.
[42] In any event, I consider that even if the Crown was in breach of its obligation, there was no miscarriage of justice in this respect. It is obvious that the defence at the very least had grounds to suspect that Lynn and Miss Gilchrist were engaged in drug dealing. When the Crown refused to answer the defence enquiry, it was open to the defence to attempt to recover the necessary information by petition to the court (eg as in McLeod v HM Adv, supra). Furthermore, it was open to counsel for the appellant to ask both Lynn and Miss Gilchrist whether or not they were the subject of a pending prosecution for drug dealing. The defence took neither of these steps. [43] In any event, the evidence of Anne Lynn about the complainers' illegal activities represented, in my view, the best possible position that the defence could have achieved in that respect. That was evidence from a source within Lynn's family. It may well have carried weight with the jury in their assessment of the complainers. Furthermore, since the evidence came out during examination-in-chief by the advocate depute, the benefit of it was available to the defence without the potential penalty of disclosure of the appellant's own character. On the other hand, if the defence had obtained from the Crown the information that it sought, and if counsel for the appellant had brought it out, counsel would have risked the disastrous consequence that the court might permit the Crown to refer to the appellant's criminal record.Failure to disclose the identification point
[44] On this point the advocate depute's concession is not the end of the matter. The question remains whether the breach caused a miscarriage of justice. In my opinion, it did not. The essential issue was whether Miss Gilchrist's identification in court was one on which the jury were entitled to rely. The evidence of Miss Gilchrist's mis-identifications at the parade was favourable to the defence. The trial judge reminded the jury of that evidence in his charge. Her dock identification of Foy might also be seen as favourable to the defence. In my view, the defence was in as strong a position in relation to identification as it would have been even if the remark reportedly made by the police officer to Miss Gilchrist had been disclosed by the Crown. I conclude that there was no miscarriage of justice in this respect.The strength of the Crown case
[45] In my opinion, both grounds of appeal have been presented on an unreal basis. They require the court to close its eyes to the other evidence in the case. This is a case where there was a sufficiency of evidence on charge (2) if that charge were looked at on its own. But even if the jury considered that Miss Gilchrist was unreliable in her identification, there remained the identification of the appellant by Jamie Gilchrist and the identification of the gun that was found in the appellant's possession. Moreover, there was ample corroboration on a Moorov basis from the striking similarities in the evidence on charge (3) to which I have referred. In my opinion, the Moorov corroboration in this case was particularly strong. [46] It follows, in my view, that even if the court were to draw its pen through the whole evidence of Miss Gilchrist, there was still ample evidence to warrant the conviction on both charges.Decision
[47] On the view that I have taken of this case, and since these are the only remaining grounds of appeal, I propose to your Lordships that we refuse the appeal. Holland v. Her Majesty's Advocate [2004] ScotHC 39 (16 June 2004)|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice Clerk Lord Penrose Lord Hamilton
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Appeal No: XC783/03 OPINION OF LORD PENROSE in APPEAL by JAMES HOLLAND Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: M E Scott QC, Latif; Drummond Miller WS
Respondent: Turnbull QC, AD; Crown Agent
16 June 2004
[48] I entirely agree with the Opinion of your Lordship in the Chair and have nothing useful to add. Holland v. Her Majesty's Advocate [2004] ScotHC 39 (16 June 2004)|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice Clerk Lord Penrose Lord Hamilton
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Appeal No: XC783/03 OPINION OF LORD HAMILTON in APPEAL by JAMES HOLLAND Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: M E Scott QC, Latif; Drummond Miller WS
Respondent: Turnbull QC, AD; Crown Agent
16 June 2004
[49] I agree with the proposal by your Lordship in the Chair that this appeal should be refused. [50] The remaining live issues concern alleged failures by the Crown to perform its duty of disclosure to the defence of material said to be important for the purposes of the appellant's trial. The existence and scope of that duty as a matter of the domestic law of Scotland are not in doubt. It was recognised and discussed in McLeod v H.M. Advocate 1998 SCCR 77 in the context of consideration of an application in advance of trial for commission and diligence for recovery of certain documents. While that case was decided before the enactment of either the Scotland Act 1998 or the Human Rights Act 1998, the potential significance of European jurisprudence to any modern formulation of the duty of disclosure was recognised and given effect. [51] In this case the complaint (in the fourth ground of appeal) is formulated thus:"[failure] to disclose [information about the depending proceedings against Mr. Lynn and Miss Gilchrist] was a failure of duty by the Crown and constitutes action which is incompatible with the appellant's rights under A6 of the ECHR and in particular to the principle of the equality of arms ... ";
in the additional ground of appeal a similar failure is alleged in respect of the non-disclosure of the remark reported as having been made to Miss Gilchrist as she left the identification parade.
[52] It may be, as your Lordship in the chair has said, that Article 6 of the Convention adds nothing of substance to this appeal. Miss Scott described the Article as "underpinning" the rights already enjoyed by the appellant under Scots law. However, as in argument some reference was made to the Convention, and in particular to the approach of the European Court of Human Rights in circumstances where relevant information has been disclosed between the time of the original trial and the hearing of an appeal, I regard it as appropriate to make in due course some observations upon it. [53] In the course of the discussion it was recognised that, broadly speaking, there were under Scots law two situations in which the duty of disclosure might arise. The first was where it was obvious that material in the possession of the Crown but not of the defence was likely to be of real importance to the defence, whether by tending positively to support its case or by tending to undermine, or cast reasonable doubt on, the Crown case; in that situation there was an immediate obligation on the Crown to disclose the material, even though no request for it had been made. The second was where a specific request for material was made by the defence, coupled with an explanation as to why that material was thought to be significant; if, in light of that explanation, it was obvious that the material was likely to be of real importance to the defence, a like duty of disclosure arose. [54] In my view neither of these situations applies to the information about the pending criminal proceedings against Mr. Lynn and Miss Gilchrist. In relation to the relevant charge on the indictment against the appellant (charge 2) the issue for his trial was whether the Crown was able to prove that he was one of the several persons who had assaulted and robbed Lynn and Gilchrist in their home on 4 September 2001. A critical aspect of that issue was the identification of the appellant as such a perpetrator. The circumstance that the Crown had (presumably on the basis of evidence available to it) charged Lynn and Gilchrist with a contravention of the Misuse of Drugs Act 1971 was not obviously of importance to the relevant issue at the appellant's trial. It did not on its face potentially go to undermining any evidence which Lynn or Gilchrist or any other witness might give as to the occurrence of the assault and robbery or as to the identification of the appellant as one of the perpetrators; and it did not support any indicated defence. Nor did the request made for information about any outstanding charges against Lynn sufficiently identify any potential importance of that information for the purposes of the defence. An allegation (or even proof) of drug dealing on the part of a witness does not in general go to undermining the credibility or reliability of that witness on another matter. In any event, the defence had from its own sources information prior to the appellant's trial that Lynn had been accused of drug dealing. It had lodged a notice of intention to attack his character, a course which, for obviously good reasons, it did not pursue at the trial. As the defence had in substance the same information as the Crown about the allegations against Lynn, there can be no question of an infringement of the principle of equality of arms, which principle, as the fourth ground of appeal acknowledges, is the foundation for the obligation of disclosure. It is not suggested that there was any obligation on the Crown to disclose the evidence in its possession on the basis of which the charges against Lynn and Gilchrist had been brought. In my view, for these reasons, there was in this respect no failure by the Crown to discharge its duty of disclosure. Even if I am wrong in that matter, I am quite satisfied that in this respect any failure did not result in the appellant's trial being unfair. I adopt in that regard the reasons given by your Lordship in the Chair for concluding that in this respect there was no miscarriage of justice. [55] The situation in respect of disclosure of the reported remark to Miss Gilchrist is different. For the purposes of this appeal the Advocate depute conceded that the Crown had a duty, even in the absence of a request, to disclose to the defence that Miss Gilchrist had, at precognition, told the precognition officer that a remark in the terms indicated had been made to her by a police officer as she left the identification parade. He further conceded that the Crown had, until a stage after the trial had been completed, failed to discharge that duty. He contended, however, that that failure had not, in the result, denied to the appellant a fair trial. [56] It is clear that, in determining whether or not an accused's Convention right to a fair trial has been infringed, it is necessary to consider the proceedings as a whole. Accordingly, where there is an acknowledged or established breach by the Crown prior to trial of its duty of disclosure of relevant information and disclosure is made between then and the completion of any appeal proceedings, the appellate court requires to consider whether, in all the circumstances, the earlier non-disclosure has been of such significance that a fair trial has been denied. This approach was that adopted by the European Court in Edwards v. United Kingdom [1992] 15 E.H.R.R. 417, where there had been a defect in the trial proceedings (by reason of breach by the prosecution of a duty of disclosure) but the information earlier not disclosed was made available to the Court of Appeal which examined the material which had been before the trial court "and considered in detail the impact of the new information on the conviction" (page 432, para. 36). Having rejected certain other contentions for the applicant, the Court (at para. 39) continued:"Having regard to the above, the Court concludes that the defects of the original trial were remedied by the subsequent procedure before the Court of Appeal".
" ... can we say that the exclusion of the cross-examination in question might not possibly have affected the conclusion arrived at by the Sheriff-substitute? For it is only if we can negative that possibility that this conviction can stand".
That test had earlier been applied in other summary cases where proper questions had been improperly disallowed. That test was later adopted and applied in similar circumstances in Patterson v. Howdle 1999 S.C.C.R. 41. Miss Scott also referred to McNee v. Ruxton 1997 S.C.C.R. 291. The Advocate depute in response referred to Kidd v. H.M. Advocate 2000 S.C.C.R. 513, where the court held, in the context of considering the significance of evidence not heard at the original trial, that the critical issue was whether that evidence was "of such significance as to lead to the conclusion that a verdict returned in ignorance of it must be regarded as a miscarriage of justice" (para. 23). Reference was also made to Al Megrahi v. H.M. Advocate 2002 SCCR 509, where the same test was adopted.
[58] I do not find either of these tests of particular assistance for the purpose of determining the issue in the present appeal. The fact that the defence did not, at or prior to the trial, have access to information about the reported remark does not of itself entail that the appellant's trial was unfair. This court must endeavour to evaluate the significance for the purposes of the trial of the non-disclosure. It cannot, of course, be known with certainty how, if at all, the defence would, had the information been duly disclosed, have deployed it. Nor can it be known with certainty what evidence in fact might have been adduced. I decline to accept the proposition that, unless this court can say that the undisclosed information could not possibly have had an effect on the trial, it must hold that there has been an infringement of the appellant's Article 6 right. The court's evaluation must be pragmatic, not theoretical, and have clearly in focus, against the whole evidence led at the trial, the impact of the new information on the soundness of the conviction. [59] This court has had the advantage of perusing, among other materials, the transcript of Miss Gilchrist's evidence at the trial. When asked whether she would be able to identify any of the three men whom she had testified had committed the assault and robbery, she answered in the affirmative. She identified in court the appellant as one of these men and as having had a particular role in the perpetration of the crime. Her identification was clear and definite. Her evidence of identification was, in cross-examination, thoroughly challenged as to its reliability, primarily on the basis that at an identification parade, held twenty two days after the event, she had identified other persons as the perpetrators. She insisted that her identification in court was not mistaken and gave an explanation (related to self-consciousness when viewing the parade) for what she had done at that parade. That and other matters relative to identification were further explored in re-examination. If, Miss Gilchrist having responded as she did at the identification parade, a police officer then made to her a remark which she might have interpreted as indicating that she had made an error in her parade identification, the making of such a remark was clearly irregular. But even if the effect of hearing that remark was to cause Miss Gilchrist to doubt her parade identification, it by no means follows that disclosure to the defence that she had reported that such a remark had been made to her would have had a material impact on her identification evidence at the trial. The defence might have made some use of the reported remark in cross-examination or otherwise. But the critical basis for the challenge to her dock identification was her prior identification of others at the parade. On a fair appraisal the availability and deployment of the undisclosed material could, in my view, have had, at most, only a marginal effect. Moreover, the fairness of the appellant's trial, and in particular of his identification as a perpetrator, has to be viewed in the light of the whole evidence. He was identified by Jamie Gilchrist as one of the three men who had emerged from his mother's home immediately after the robbery. He was identified as one of the perpetrators of another armed robbery committed a few days later, the time, character and circumstances of which were such as to satisfy the jury that each was an instance of a single course of conduct. A gun identified as used, or similar to that used, in each of these robberies was found by the police in the possession of the appellant. In all the circumstances the non-disclosure of the reported remark did not, in my view, have the effect of denying to the appellant a fair trial. [60] For these reasons the outstanding grounds of appeal must be refused.
