APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Bonomy Lady Smith	[2010] HCJAC 57 Appeal No: XC627/06 OPINION OF LORD CLARKE in APPEAL by PHILIP LUCAS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Smith; R T McCormack, Glasgow

Respondent: Allan, Q.C., A.D.; Crown Agent

8 June 2010

[1] In this appeal against conviction, the court issued a decision on 7 October 2009 rejecting grounds of appeal 1, 2, 3 and 4 for the reasons set out in the Opinion of the Court delivered by Lord Carloway, of that date, to which reference is made. The appeal was continued to allow argument to be made in relation to the additional ground of appeal 1A, which is in the following terms:

"The Crown failed to disclose information to the defence. This information consisted of statements to the police given by the witnesses Alan Smith and Janice Watson which would have materially assisted the defence had they been disclosed prior to or at the trial. Following disclosure of these statements after trial the defence have obtained evidence which would otherwise have been available at the trial.

The appellant has been denied a fair trial due to the failure by the Crown to disclose material in their possession which would have assisted the defence. The right to a fair trial confirmed by Article 6(1) of the European Convention of Human Rights includes the principle of equality of arms. The Crown have a duty under Article 6 to disclose to the defence any information which would tend to exculpate the accused or would be likely to be of material assistance in the preparation and presentation of his defence. The police statements were material in that they were likely to be of assistance to the defence. Had they been disclosed it would have led to the discovery of the evidence now relied on.

The appellant's trial was unfair as a result of the failure to disclose the said police statements. The right to a fair trial in terms of Article 6(1) is absolute. In seeking a conviction in the circumstances the Lord Advocate, through her depute, was acting incompatibly with the appellant's right to a fair trial in terms of section 57(2) of the Scotland Act 1998. Such an act was ultra vires.

Separatim in any event the failures complained of have a direct bearing on the question of whether there is a reasonable explanation for the failure to supply the evidence at the trial."

[2] At the commencement of the continued hearing of the appeal in relation to that ground of appeal, counsel for the appellant tendered a further additional ground of appeal. It is in the following terms:

"The appellant has been denied a fair trial by reason of the failure in duty by those who acted for him at the time of his trial. The following investigations were not carried out:

(a) Tracing and precognoscing the witnesses Alan Smith and Jan Watson;

(b) having obtained the information at (a) above thereby obtaining (i) details of comments made by Alan Smith to the investigating officers, DC Stephen Burns and DC Craig Warren at the time they took a police statement from him; and (ii) details of comments made by the deceased to the said Alan Smith in the Glen Douglas pub on 5 August 2005.

This information was of importance to the defence given the principal issues at the trial. The appellant gave evidence which was consistent with his judicial examination which he made reference to his belief that the deceased may have been armed.

The materiality of the failures identified is apparent from the decision of the Court of 7 October 2009 (2009 SCCR 892). At paragraph 22 the Court made the following observations:

'This case is, in essence, indistinguishable from both Barr v HM Advocate and Burzala v HM Advocate. Although, as is not uncommon, no contemporaneous material has been placed before the court to indicate what the appellant's instructions were in advance of trial (e.g. a precognition), the judicial examination, which was attended by the law agent, illustrates that it was the appellant's position that he considered that the deceased might be armed because of what had been said in the pub. In his earlier interview with the police, he had been in a position to say who had been in his company in the pub. The company included Jan Watson's boyfriend, Alan. This was Mr Smith. It was then an obvious line of enquiry to precognosce Mr Smith in advance of trial. It has to be assumed, despite the content of his police statement, that, had he been asked about what had been said at the table in the pub, Mr Smith would have told his precognoscer what the deceased had said to him about a knife. Whether to lead that evidence would then have been a decision for counsel to take at the trial. In these circumstances, no reasonable explanation has been advanced for the evidence not having been heard at the trial and the appeal on this ground also must fail.'

It ought to have been obvious to those representing the appellant at trial that the individuals he identified at an early stage may have been able to give evidence in support of his position. Had the enquiries identified been carried out before the trial, the defence would have been in a position to lead Mr Smith as a witness.

The absence of that evidence deprived the appellant of his right to a fair trial. For an indication of its significance reference is made to paragraph [16] of the Opinion of the Court.

If the appellant was denied a fair trial to which he was entitled, then there has been a miscarriage of justice."

[3] Counsel for the appellant emphasised that the formulation of this most recent ground of appeal had been triggered by the terms of the Opinion of the Court on 7 October 2009. He wished, however, to make it clear, that, having considered both the professional position of those instructing him in the appeal, and his own professional position, he considered it would be inappropriate for him to seek to advance such a ground of appeal since it is based on alleged failures on the part of those instructing him. He did not, indeed, have any instructions from the appellant to seek leave to have the proposed new ground of appeal received. He was simply anxious, at this stage, to ensure that that possibility was left open, in the event of the court rejecting the existing additional ground of appeal, which was to be argued at the hearing. In that event, having regard to the possible interpretation to be placed on the provisions of section 124(2) of the Criminal Procedure (Scotland) Act 1995, counsel was anxious that no order might be pronounced by the court which could be regarded as final in nature, thus precluding the possibility of the appellant seeking to persuade the court to accept the new proposed ground of appeal. I will revert to this matter, in due course.

[4] In advancing his submissions, in relation to the additional ground of appeal which is before the court, and which we have set out in full above, counsel for the appellant recognised that, while this ground is cast in terms of a failure by the Crown to disclose relevant information, the "material" in question was, to a very large extent, the same as was addressed under ground of appeal No.4 under the heading of "New Evidence". The focus in both grounds was information contained in statements given by Alan Smith and Jan Watson as to their being in the presence of the appellant and the deceased on the evening of the deceased's death and what Mr Smith was alleged to have heard the deceased saying and doing on that occasion, namely that he said "I always come equipped", whereupon he patted his top trouser pocket in a manner which it was thought by the witness indicated that he had a knife in his pocket (though the witness never saw any knife). The statements from Mr Smith appear in an affidavit obtained by the appellant's agent post trial. As the court, however, pointed out in its previous opinion, at paragraph [17], the issue of what had been said in the pub was explored at the trial. It had, moreover, been raised by the appellant himself when interviewed by the police on 8 August 2005 in the presence of his law agent, during which interview the appellant specifically referred to the deceased having, in the pub, uttered words to the effect that he always carried a weapon with him. At his judicial examination the appellant referred to Jan Watson, and her boyfriend Alan Smith, being in the pub in his company and in the company of the deceased on the night in question. I quote from the previous Opinion of the Court at paragraph [18]:

"What had happened after the trial was that the Crown had disclosed all statements in their possession to the appellant. These had included one taken from Jan Watson. This statement, which the Court has not seen, did not contain any reference to the deceased mentioning carrying a knife in the pub. But as a result of that, the defence decided, for reasons not revealed, to precognosce Ms Watson. She told the defence that, although she had not heard any remark in the pub, her then boyfriend, Alan Smith, may have done so. That led in turn to the evidence now revealed. In fact, the police had taken a statement from Mr Smith during their investigations of the murder, but had not sent that to the procurator fiscal. This three page closely typed document, which was copied for the Court, deals with events in the pub, but makes no mention of the deceased claiming to carry a knife."

[5] In dealing with ground of appeal 4 which, as has been seen, focused on the statements of Alan Smith and Jan Watson, which were contended to be fresh evidence, the court concluded that the "reasonable explanation" test set out in section 106(3A) of the Criminal Procedure (Scotland) Act 1995 had not been met. In brief, the court took the view that the evidence in question could have been obtained prior to trial by the appellant's representatives.

[6] As has been seen, the additional ground of appeal uses the language of disclosure throughout. At an early stage in his submissions, it was clear that counsel for the appellant was seeking not to be strictly confined to arguing this ground of appeal under the heading of a Crown failure to disclose. He accepted, however, that it was important to place the ground of appeal within its appropriate legal category. Nevertheless, he sought to advance his position, on behalf of the appellant, on alternative bases. The issue, he ventured to suggest, could be treated as a fresh evidence ground of appeal, albeit of a very unconventional nature and even though substantially the same material had already been considered in a fresh evidence ground of appeal, ground of appeal 4 and disposed of by the court. There was now, it was said, in relation to that material a reasonable explanation for it not having been previously available. In addition, counsel contended that, in any event, he was entitled to fall back on the general question as to whether what was set out in the ground of appeal, however classified, might be seen as involving a miscarriage of justice.

[7] As counsel further developed his submissions, it became clear that, at this stage, all that he could ask for and all that he did ask for, was that the court should, hear evidence from the named police officers to whom it was said Alan Smith had given his statement and from Alan Smith himself. The object of that exercise was to see if it could be established that Alan Smith had told the police officers about what he had heard the deceased saying in the pub, notwithstanding that this was not recorded by those police officers. Accordingly, at this stage the outcome of any such enquiry must be wholly speculative.

[8] It appeared that, in essence, counsel for the appellant was inviting the court to embark on a re-run of the fresh evidence ground of appeal which this court has already disposed of. The one ground of appeal presently before the court is clearly and unequivocally based on an alleged breach of the Crown in its duty to disclose material said to be in its possession. It is focused on the statement given to the police by the witness Alan Smith and to some extent on the statement of Jan Watson, as was the focus of ground of appeal 4. The focus became narrower, in discussion before the court, however, in that counsel for the appellant sought to emphasise the fact that the police statement taken from Mr Smith, which was never sent to the procurator fiscal, did not contain any reference by the witness to the deceased having claimed to be carrying a weapon, while the affidavit taken by the agents for the appellant from Mr Smith does make such a reference and moreover says that the information in question had been passed to the police officers. What the ground of appeal, however, complains of is that the police statement should have been disclosed to the appellant's agents. The police statement taken from the witness Alan Smith did not, however, contain the crucial reference to what the deceased is alleged to have said in the pub.

[9] The witness, Alan Smith, was not on the Crown list in the present case, and the Crown never had sight of any police statement taken from him. As has been noted, the statement that did exist did not include the crucial allegation of what the deceased was alleged to have said.

[10] The best that counsel for the appellant was able to say at this stage, was that the person, Alan Smith, has provided a statement (post trial) about the alleged statement of the deceased which he says he communicated to police officers when he was being interviewed. As has been noted, what is desiderated is a hearing to establish that that was the case, viz that Alan Smith said something to the police which was not recorded. But that, in my clear opinion, is simply an attempt to set up a fresh evidence case under the disguise of a failure to disclose. In the foregoing circumstances I am entirely satisfied that what was placed before the court did not begin to set up a case of failure to disclose, relevant for the purposes of Article 6.

[11] As previously noted, counsel for the appellant recognising, no doubt, the difficulties that he was faced with, with regard to the formulation of the remaining ground of appeal in terms of a failure to disclose in relation to disclosure, did seek to argue his ground on the alternative basis of a fresh evidence case. But in seeking to formulate matters in that way, I agree with the Advocate depute that counsel was simply seeking to re-argue, in substance, the fresh evidence case, which has already been dealt with. The only factor relied upon in addition to what was presented to the court, under ground of appeal 4, was that Alan Smith alleges that he told the police officers what he heard the deceased say, even though that was not recorded in his police statement. Had, however, the appellant's agents interviewed Mr Smith, in advance of trial, which the court has already held was an obvious line of enquiry to pursue for the reasons given in the court's previous Opinion, then it has to be assumed, for the purpose of the argument, that he would have said what he said in his affidavit obtained by the agents post trial, including the fact that he had told the police officers about the deceased's alleged remarks in the pub. There is no reasonable explanation, as there was none when these matters were canvassed under ground of appeal 4, as to why that line of enquiry was not followed up by the agents. Accordingly, even if it were permissible for the appellant to advance a fresh evidence argument under the terms of additional ground of appeal 1A, it would be doomed to fail for the same reasons as ground of appeal 4 failed.

[12] As a last resort, as I have previously said, counsel for the appellant fell back on the general concept of miscarriage of justice as supporting what was said in the additional ground of appeal. He, however, accepted that the categorisation of the legal basis for establishing that a miscarriage of justice had occurred was of importance. Nothing was heard from counsel in addition to, or different from, his arguments, such as they were, based on the failure to disclose and fresh evidence which would have provided a different legal basis for establishing that a miscarriage of justice had taken place. In the circumstances of this case, and having regard to the reasoning of the Court in its previous opinion in relation to the opportunity available to the appellant's representative to have discovered for themselves the material in question pre-trial, no miscarriage of justice has occurred.

[13] I, accordingly, am of the opinion, for the foregoing reasons, that additional ground of appeal 1A is without merit.

[14] I propose, having regard to what counsel for the appellant brought to our attention at the beginning of the hearing, as regards the possibility that the appellant may wish to seek to have a further additional ground of appeal received, after having instructed alternative representation, that the Court continue proceedings to a further hearing so that the court may be advised as to whether the appellant seeks to have a fresh ground of appeal received and advanced by different representation.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Bonomy Lady Smith	[2010] HCJAC 57 Appeal No: XC627/06 OPINION OF LORD BONOMY in APPEAL by PHILIP LUCAS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Smith; R T McCormack, Glasgow

Respondent: Allan, Q.C.; Crown Agent

8 June 2010

[15] I agree with the reasoning of your Lordship in the chair and would refuse the appeal so far as founded on ground of appeal 1A. I also agree with your Lordship's proposal as to further procedure.

[16] However, I am constrained to add a few words of my own. Your Lordship's detailed consideration of the case presented to us in support of ground of appeal 1A gives apparent respectability to an argument that was entirely without merit. It was obvious that, even if a failure to disclose were proved, that related to information which the court had already decided on 7 October 2009 would have been discovered had those acting for the appellant pursued an obvious line of enquiry, namely interviewing Alan Smith who had been in the company of the appellant when things were said that led the appellant to think that the deceased might be armed. By presenting the same point under the guise of a ground of appeal categorised and expressed differently, counsel for the appellant appeared to have overlooked the basic requirement that, whatever the ground of appeal, the appeal could only succeed if a miscarriage of justice was established.

[17] Whether the appeal is considered as falling under the heading of a failure to disclose or under the heading of fresh evidence which was slightly different from, but closely related to, that previously argued, it was in essence an attempt to establish a miscarriage of justice on the basis of the non-availability of the evidence of Alan Smith. In light of the information available to those acting for the appellant, there was no prospect that a miscarriage of justice could be established on this ground.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Bonomy Lady Smith	[2010] HCJAC 57 Appeal No: XC627/06 OPINION OF LADY SMITH in APPEAL by PHILIP LUCAS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Smith; R T McCormack, Glasgow

Respondent: Allan, Q.C., A.D.; Crown Agent

8 June 2010

[18] For the reasons given by your Lordship in the chair, I agree that the appeal under ground 1A should be refused and that further procedure should be as your Lordship proposes.