APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hardie Lord Nimmo Smith	[2012] HCJAC 13 Appeal No: XC749/11 XC12/12 XC13/12 XC14/12 XC15/12 OPINION OF THE LORD JUSTICE CLERK In the APPEAL UNDER THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995, SECTION 74 by HER MAJESTY'S ADVOCATE Appellant; against (1) RICHARD SUTTON HOUSLEY (2) MICHAEL VOUDOURI (3) NICOS SAVVA aka NICHOLAS SAVVAS (4) CHRYSTALLA SAVVA or VOUDOURI and (5) CAROLINE JANE LANG Accused and Respondents: _______

For the appellant: Solicitor General (Thomson QC), Ferguson QC AD, Mercer; Crown Agent

For the respondents:

(1) Moir, Cahill; Fleming and Reid, Glasgow

(2) Belmonte sol adv, Prais; Belmonte & Co

(3) Murphy; Trainer Alston, Coatbridge

(4) Keegan QC sol adv, Anderson; Richard Fairbairn

(5) Pollock sol adv, Labaki; Pollock and Ross, Stirling

10 January 2012

Introduction

[1] This is an appeal by the Crown against a decision of Lord Tyre on a preliminary question arising in connection with the forthcoming trial of the respondents in the High Court. The first respondent is charged with tax evasion. All of the respondents are charged with money laundering. The indictment has been served. It lists 2862 Crown documentary productions. Many of them are business documents and copy documents.

[2] Schedule 8 to the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) and the Criminal Procedure Rules 1996 provide a procedure by which, by the addition of a docquet, a copy document may be treated as the equivalent of the original (Sch 8, para 1); a statement in a business document shall be admissible as evidence of any fact or opinion stated in it (ibid, para 2); and a business document may be taken to have its certified provenance (ibid, para 4).

[3] The Crown intends to make extensive use of such docquets; but for many of its productions the docquets are missing or are not in proper form. The Crown lodged a Minute in which it sought leave of the court to have docquets in proper form added to 1,165 of these productions. On 14 November 2011, Lord Tyre refused leave on the ground that the proposal was incompetent. He granted leave to appeal (1995 Act, s 74).

The relevant legislation

[4] Section 66 of the 1995 Act provides inter alia as follows:

" ... (4) The accused may be cited either-

(a)   by being served with a copy of the indictment and ... the list of productions (if any) to be put in evidence by the prosecution

(b)  [or by making such documents available for collection at a specified police station] ...

(5) ... the prosecutor shall on or before the date of service of the indictment lodge the record copy of the indictment with the clerk of court before which the trial is to take place, together with ... a copy of the list of productions ... "

Section 67 provides inter alia that:

" ... (5) ...In any trial it shall be competent with the leave of the court for the prosecutor ... to put in evidence any production not included in the lists lodged by him, provided that written notice ... has been given to the accused by the relevant time.

(5A) In subsection (5) above, 'the relevant time' means-

(a) where the case is to be tried in the High Court-

(i) not less then seven clear days before the preliminary hearing; or

(ii) such later time, before the jury is sworn to try the case, as the court may, on cause shown, allow ... "

Schedule 8 provides inter alia as follows:

"1(1) For the purposes of any criminal proceedings a copy of, or of a material part of, a document, purporting to be authenticated in such manner and by such person as may be prescribed, shall unless the court otherwise directs, be-

(a) deemed a true copy; and

(b) treated for evidential purposes as if it were the document, or the material part, itself,

whether or not the document is still in existence.

(2) For the purposes of this paragraph it is immaterial how many removes there are between a copy and the original.

(3) In this paragraph 'copy' includes a transcript or reproduction.

2(1) ... a statement in a document shall be admissible in criminal proceedings as evidence of any fact or opinion of which direct oral evidence would be admissible, if the following conditions are satisfied-

(a) the document was created or received in the course of, or for the purposes of, a business or undertaking or in pursuance of the functions of the holder of a paid or unpaid office;

(b) the document is, or at any time was, kept by a business or undertaking or by or on behalf of the holder of such an office; and

(c) the statement was made on the basis of information supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in it.

(2) Sub-paragraph (1) above applies whether the information contained in the statement was supplied directly or indirectly unless, in the case of information supplied indirectly, it appears to the court that any person through whom it was so supplied did not both receive and supply it in the course of a business or undertaking or as or on behalf of the holder of a paid or unpaid office ...

4 Unless the court otherwise directs, a document may in any criminal proceedings be taken to be a document kept by a business or undertaking or by or on behalf of the holder of a paid or unpaid office if it is certified as such by a docquet in the prescribed form and purporting to be authenticated, in such manner as may be prescribed-

(a) by a person authorised to authenticate such a docquet on behalf of the business or undertaking by which; or

(b) by, or by a person authorised to authenticate such a docquet on behalf of, the office-holder by whom,

the document was kept ...

8 In this Schedule-

... "document" includes, in addition to a document in writing- ...

(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are recorded ... and

(d) any film, negative, tape disc or other device in which one or more visual images are recorded ... "

[5] The Act of Adjournal (Criminal Procedure Rules) 1996, enacted as Schedule 2 to the Criminal Procedure Rules 1996, provides for the form of the docquets as follows:

"26.1(1) For the purposes of paragraph 1(1) of Schedule 8 to the Act of 1995 (production of copy documents), a copy, or a copy of a material part, of a document shall be authenticated-

(a) by a person who is-

(i) the author of the original of it;

(ii) a person in, or who has been in, possession and control of the original of it or a copy of it; or

(iii) the authorised representative of the person in, or who has been in, possession and control of the original of it or a copy of it; and

(b) by means of a signed certificate, certifying the copy as a true copy, which may be in Form 26.1-A -

(i) endorsed on the copy; or

(ii) attached to the copy.

(2) For the purposes of paragraph 4 of Schedule 8 to the Act of 1995 (documents kept by businesses etc.), a document shall be certified by a docquet in Form 26.1-B -

(a) endorsed on the document; or

(b) attached to the document ... "

I need not set out the terms of these Forms.

[5] Where a docquet is attached to, rather than endorsed on, the document, I shall refer to it as a "certificate."

The case law

[6] In Davies, Petr (1973 SLT (Notes) 36) the accused petitioned the nobile officium for warrant to take possession of a Crown production, a pair of gloves, for scientific examination by an expert instructed by him. The court granted the petition. Lord Justice Clerk Wheatley said:

"Where an indictment is served, the productions referred to therein are lodged with the sheriff clerk who has a duty to retain them in his custody and make them available at the trial. At that stage, the only body with the authority to allow the productions to be inspected and examined is the court, and the proper procedure is to make application to the court thereanent. It is then for the court to decide whether the application should be granted or refused (p 37)."

[7] In Livingston v HM Adv (1991 JC 77) the Crown applied during the course of the trial to take possession of two sets of fingerprints to have them examined and compared by an expert witness in the preparation of his evidence. The sheriff granted the application. This court upheld the decision on the basis of the Lord Justice Clerk's observations in Davies, Petr (ibid, p 84).

[8] In HM Adv v Pocock (unreported, Glasgow High Court, 10 March 2010) the defence objected during the course of the trial to the validity of a Form 26.1B certificate (supra) that was enclosed within a folder of documents. The certificate failed to list the documents within the folder to which it purported to relate. Lord Malcolm sustained the objection. He said that it would be good practice for the certificate to state expressly that the signatory was authorised to authenticate the document.

[9] In HM Adv v Qureshi (2011 SCCR 183) the Crown intimated with the indictment a list of the productions to which Form 26.1B certificates applied. After a review undertaken by the Crown in consequence of the decision in HM Adv v Pocock (supra), a number of certificates were found to have inadequate descriptions. The productions were still in the Crown's possession. The Crown took steps to have the certificates amended to make good the deficiencies. The accused submitted that the Crown's conduct constituted an irregular interference with the productions. Lord Malcolm held that the effect of the Crown's intimating a list of productions was that the productions came under the control of the court, whether or not they had yet been lodged with it (para [21]). If a party were to be entrusted with a listed production, that had to be on the basis that there should be no interference with or alteration to it. No party could be allowed to add to or interfere with the productions simply because it seemed to that party to be necessary and appropriate (para [23]). The altered documents were not documents as per the Crown list, nor had they been the subject of a successful section 67 application (para [24]). Lord Malcolm commented that in the absence of a valid certificate the Crown could still lead parole evidence on the matter if the Crown list included witnesses who could speak to the documents as having been kept by a business (para [26]). It is apparent therefore that the basis of Lord Malcolm's reasoning was that the document and the relative certificate constituted one production and that if the production lodged were to be a document that lacked the certificate, the addition of the certificate to it would constitute interference with the production.

The Crown's Minute

[10] The Crown's Minute explains that in accordance with modern practice its documentary productions have yet to be lodged with the court (para 5). All of the 120 witnesses who speak to these documents are on the Crown list (paras 4, 8); but in order to focus on controversial matters, to avoid inconvenience to witnesses and to shorten the trial, the Crown has prepared docquets in reliance on Schedule 8 (supra). The Crown avers that the defective docquets

"contain errors or do not provide a sufficient description of the productions to which they relate or they are not appropriately paginated or they do not state that the signatory has the relevant authority to certify the documents" (para 5).

[11] The Crown avers that it did not wish to apply to lodge late productions in terms of section 67 of the 1995 Act (supra) because it was impracticable to

"prepare, docquet, number, copy and circulate fresh copies of 1,165 productions. Renumbering some productions but not others will likely cause confusion ... especially where the former numbering is referred to in other documentary productions" (para 9).

[12] The Crown submitted a draft joint minute to the accused's lawyers by which there could be agreement regarding the business documents. None of those acting for the accused would sign it. The Crown therefore seeks the authority of the Court to substitute for each of the defective docquets a replacement docquet executed in proper form by the appropriate signatory.

The decision appealed against

[13] Lord Tyre considered that the circumstances in the present case were analogous to those in HM Adv v Qureshi (supra). The difference here was that the Crown sought the court's leave before obtaining the new docquets (Report, para 18). The question then arose whether the Crown's proposed course of action amounted to the lodging of new and/or altered productions. If it did not, the use of productions to allow certificates to be drafted would be no different in principle from removal of a production for examination (Livingston v HM Adv, supra) or perhaps for copying. On that analysis, the production, properly understood, was only the document to which the docquet was added, rather than the ensemble of the document and any docquet attached to it.

[14] However, the term "production" encompassed the collection of documents lodged. Therefore a file of documents could be described as a single production although it consisted of several separate papers. It followed that a document with a docquet should be characterised as one "production." That term encompassed the ensemble of documents lodged as an item in a list of productions. This was consistent with Lord Malcolm's approach in HM Adv v Qureshi (supra). It followed that the attachment of a docquet to a production constituted the alteration of it. This was true whether the docquet was endorsed on the document or attached to it as a certificate. In either case the docquet was inextricably linked with the production.

[15] The Crown accepted that the court had no statutory power to permit the alteration of a production. There was no such power at common law. It followed that the court could not authorise the Crown's proposal.

[16] The submissions for the accused relied on the availability to the Crown of section 67 of the 1995 Act. If the Crown's proposals had not amounted to the lodging of new or altered productions, the potential use of section 67 would have been irrelevant. Nevertheless, his Lordship was reassured that his decision would not impose an impossible burden on the Crown. As the court could authorise inspection of productions, it could likewise authorise copying. The relevant documents could be copied and appropriate docquets could be added to those copies. Leave to lodge copy documents with docquets as late productions could then be sought in terms of section 67.

The Crown's predicament

[17] The Solicitor General explained that this prosecution was the result of a large and complex investigation in which about 140,000 pieces of paper had to be considered. The Crown's difficulty had been complicated by the decisions of Lord Malcolm in HM Adv v Pocock (supra) and HM Adv v Qureshi (supra), both of which were given during the investigation and indictment of this case.

[18] In about July 2010, after the Crown's review of its use of Schedule 8 docquets in the light of HM Adv v Pocock, the Crown issued new guidance and implemented changes to training. The preparation of the present indictment was then at an advanced stage.

[19] In August 2010 the indictment was served. The Crown knew that certain productions lacked docquets in proper form. The choice was to delay the indictment in order to prepare proper docquets or to indict immediately and correct the docquets in the run-up to the trial. The Crown chose the latter option on the view that the docquets were not an integral part of the productions and that the correction of them was a procedural matter for which Schedule 8 imposed no time limit. The Crown considered that it was in the public interest that the case should be indicted within the statutory time limits because of the nature of the charges and the time already taken up in preparation of the case, and the need to give fair notice to the accused of the terms of the charges and of the productions that would be relied on.

[20] Thereafter all of the productions were reviewed to determine which of them had defective docquets; but none had been rectified by the date on which Lord Malcolm gave his decision in HM Adv v Qureshi. That decision required a further reconsideration of the Crown's approach. In about April 2011 the Crown decided that the appropriate course was to apply to the court for authority to take possession of the productions, prepare accurate certificates and add those certificates to the productions. On 16 May 2011 the court and the defence were told of the Crown's intentions. On 27 June 2011 the Minute was lodged.

[21] The Solicitor General said that the defence lawyers declined to sign the Joint Minute because, they said, they had no instructions to do so. The Solicitor General did not understand there to be any challenge to the substance of the proposed agreement.

[22] The Crown now sought to re-certify 766 productions. If the court was to grant authority to the Crown for its proposed course of action, the exercise would take around 11 weeks to complete. On the other hand, if the appeal was refused, the Crown would try to rely on section 67 of the 1995 Act. The court's authority would first be sought to take possession of the productions in question and to re-copy them in their entirety. The copier would require to certify that each document was a true copy. The copies with the originals would then have to be taken to the relevant individuals within the businesses to sign new certificates. A completely new set of copy productions would then be lodged. This would be identical to the old set, but with correct certificates attached in conformity with Schedule 8. This alternative process would take about 18-23 weeks to complete.

The grounds of appeal

[23] The Crown insists in two grounds of appeal. First, it submits that Lord Tyre erred in finding that a docquet to a production formed part of that production. A docquet is not an inherent part of the document being docquetted, nor does it constitute a separate production in itself. Alternatively, the Crown submits that Lord Tyre erred in holding that the court lacked the power to permit interference with the productions. The court has inherent powers to regulate its own procedures and can develop those powers to meet the demands of modern circumstances.

The parties' submissions

For the Crown

[24] The Solicitor General submitted that Schedule 8 to the 1995 Act had not changed the nature of a production. The Criminal Procedure Rules required that the docquet should be endorsed on or attached to the production. That did not make the docquet part of the production. Unlike a production, a docquet is not an article of evidence. It follows that the court, now having custody of the documents, can permit the uplifting of them by the Crown so that proper docquets can be added to them, provided always that the productions are not interfered with. It was accepted in HM Adv v Qureshi (supra) and in this case that the defects in the docquets did not prevent witnesses from speaking to the relevant documents. This showed that the evidential part of the production was still admissible. Even if the court was to hold that the docquets formed part of the productions, the court had an inherent power to allow procedural defects to be remedied. The defects in this case were minor. To permit the Crown's proposed course of action would be consistent with the court's power to permit scientific examination of a production (Davies, Petr, supra: Livingston v HM Adv, supra). Such an examination could involve a greater interference than was proposed here.

For the respondents

[25] Counsel for the first respondent adopted Lord Tyre's reasoning (Report, paras 20 and 21). He submitted that that was supported by practical considerations. For example, production 19 was described as "three files of documents." Within those files there may be a number of docquets for some or all of those documents. Where there was a group of files listed as one production, the entire group as a whole was properly regarded as the production. It followed that the docquets within those files also formed part of the production. Counsel for the first respondent said that he would not oppose the Crown's invoking section 67 of the 1995 Act. He could not say that the defence would be any worse off if instead of that the Crown were take the action proposed in the Minute.

[26] The solicitor advocate for the second respondent submitted that since an accused was served with an indictment, a list of witnesses and a list of productions, he could expect in the normal case that the Crown would call witnesses to speak to the productions. Only in this manner did the productions form part of the evidence in the cause. Schedule 8 made a material difference to that principle. A docquet under Schedule 8 allows a business document to form part of the evidence of the case. It was like a witness who was not heard. The docquet meant that the nature of the production changed. The Crown could resort to section 67. It was not enough to say that proceeding under section 67 would be less convenient (Minute, para 9). The nobile officium was limited to unforeseen circumstances where there was no other statutory remedy available (Anderson v HM Adv 1974 SLT 239). The Crown could not invoke the court's inherent power because the problem in this case was not unforeseen and there was an alternative remedy. If an application were to be made under section 67, he would oppose it on the question whether there was "cause shown" (1995 Act, s 67(5A)(a)(ii)).

[27] Counsel for the third respondent adopted the submission for the first and second respondents. He explained that some of the business documents related to certain banking transactions abroad. His client's position was that one of the businesses concerned was not operating legitimately. The transactions described in the business documents were of an artificial and illicit nature. His concern was that use of Schedule 8 might obviate the need to call relevant witnesses from that business, which would deprive him of the opportunity to cross-examine them.

[28] The solicitor advocate for the fourth respondent adhered to the submission that he made to Lord Tyre; namely that the docquet did not become part of the production to which it related. He accepted that the court could grant authority for the course of action proposed in the Minute.

[29] The solicitor advocate for the fifth respondent adopted the submissions for the second respondent.

Conclusions

[30] There are three issues; namely (1) has Lord Tyre correctly characterised the nature of a Schedule 8 docquet (Report, paras 20 and 21)?; (2) if he is wrong, does the court have the power to grant the Crown's application?; and (3) if the court does have the power, should it grant the application?

[31] The first issue is a straightforward matter of statutory interpretation. The natural and reasonable interpretation of the provisions of Schedule 8 is that a docquet is an appendage to, but not part of, the production. The fact that the docquet can certify that a production is a business document, or a copy document, does not suggest that the docquet is an integral part of the production itself. The docquet, in my view, is a separate but related document the effect of which is to give certain evidential significance to the production. That interpretation is confirmed by the definition of "document" in paragraph 8 of Schedule 8 (supra) which is not confined to a document in writing and includes inter alia a disc, tape, sound track or film. It makes no difference, in my view, if the docquet is endorsed on the production rather than attached to it. Even in that case, the docquet is not part of the text of the production.

[32] For these reasons, I consider that Lord Tyre erred in holding that a docquet forms part of the production to which it relates. In reaching his view, he was influenced by certain dicta of Lord Malcolm in HM Adv v Qureshi to similar effect. Those dicta, in my opinion, should be disapproved.

[33] Whether the court has the authority to grant the Crown's application is, in my opinion, an entirely procedural question. It raises no substantive issue of criminal law. The court is master of its procedure except to the extent that its procedure is expressly governed by statute. The court can permit access to productions for the purposes of inspection and examination (Davies, Petr, supra; Livingston v HM Adv, supra). It follows, in my view, that the court has the power to grant the authority sought in the Crown's Minute.

[34] Whether we should exercise that power in the circumstances of this case is a matter for our discretion. The explanation given by the Crown is understandable in view of the extreme difficulties that the preparation of this case has caused. It was for the Crown to decide when to indict the accused. Its decision to indict the accused when it did cannot of itself preclude our granting the remedy that the Crown seeks. None of those acting for the respondents could point to any prejudice that would be caused to them if the application were to be granted. On the contrary, they have had the benefit of access to these productions for a considerable time.

[35] This will be a long and complex trial. It will impose a serious burden on the jurors. The provisions of Schedule 8 enable trials to be simplified and shortened by the elimination of unnecessary evidence relating to documents as to whose provenance and contents there is no dispute. Those who defend in trials of this kind have a responsibility as officers of the court to co-operate with the Crown in reaching the greatest possible measure of agreement on the facts. That is in the interests of justice. Unless those acting for the present respondents have some serious reason to dispute all or any of the matters on which agreement is sought in the proposed joint minute, I can only regard their refusal to sign it as perverse.

[36] In my view, the Crown has justified its request for the authority that it seeks.

Disposal

[37] I propose to your Lordships that we should allow the appeal, recall the order of the court dated 14 November 2011, and authorise the Crown to proceed in the manner proposed in the Minute.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hardie Lord Nimmo Smith	[2012] HCJAC 13 Appeal No: XC749/11 XC12/12 XC13/12 XC14/12 XC15/12 OPINION OF LORD HARDIE In the APPEAL UNDER THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995, SECTION 74 by HER MAJESTY'S ADVOCATE Appellant; against (1) RICHARD SUTTON HOUSLEY (2) MICHAEL VOUDOURI (3) NICOS SAVVA aka NICHOLAS SAVVAS (4) CHRYSTALLA SAVVA or VOUDOURI and (5) CAROLINE JANE LANG Accused and Respondents: _______

For the appellant: Solicitor General (Thomson QC), Ferguson QC AD, Mercer; Crown Agent

For the respondents:

(1) Moir, Cahill; Fleming and Reid, Glasgow

(2) Belmonte sol adv, Prais; Belmonte & Co

(3) Murphy; Trainer Alston, Coatbridge

(4) Keegan QC sol adv, Anderson; Richard Fairbairn

(5) Pollock sol adv, Labaki; Pollock and Ross, Stirling

10 January 2012

[38] For the reasons given by your Lordship in the chair I agree that the docquets do not form part of the productions to which they are attached. In these circumstances the court may grant the authority sought by the Crown to uplift productions and to attach to them substitute docquets correcting the errors or omissions in the original docquets identified by the Crown.

[39] The only remaining issue for me is whether we should exercise our discretion in favour or against granting the application sought by the Crown. I am satisfied that the respondents will not suffer prejudice if the application is granted. Furthermore there will be a significant benefit to jurors, witnesses and the public purse as granting the application will render unnecessary the leading of formal undisputed evidence from a large number of witnesses. Accordingly I am satisfied that we should exercise our discretion in favour of granting the Crown's application.

[40] I agree with the proposal of your Lordship in the chair that we should allow the appeal, recall the order of the court dated 14 November 2011, and authorise the Crown to proceed in the manner proposed in the Minute.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hardie Lord Nimmo Smith	[2012] HCJAC 13 Appeal No: XC749/11 XC12/12 XC13/12 XC14/12 XC15/12 OPINION OF LORD NIMMO SMITH In the APPEAL UNDER THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995, SECTION 74 by HER MAJESTY'S ADVOCATE Appellant; against (1) RICHARD SUTTON HOUSLEY (2) MICHAEL VOUDOURI (3) NICOS SAVVA aka NICHOLAS SAVVAS (4) CHRYSTALLA SAVVA or VOUDOURI and (5) CAROLINE JANE LANG Accused and Respondents: _______

For the appellant: Solicitor General (Thomson QC), Ferguson QC AD, Mercer; Crown Agent

For the respondents:

(1) Moir, Cahill; Fleming and Reid, Glasgow

(2) Belmonte sol adv, Prais; Belmonte & Co

(3) Murphy; Trainer Alston, Coatbridge

(4) Keegan QC sol adv, Anderson; Richard Fairbairn

(5) Pollock sol adv, Labaki; Pollock and Ross, Stirling

10 January 2012

[41] I agree that, for the reasons given by your Lordship in the chair, we should dispose of this appeal as proposed by your Lordship.