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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Sinclair v. Her Majesty's Advocate (Devolution) [2005] UKPC D2 (11 May 2005) URL: https://www.bailii.org/uk/cases/UKPC/2005/D2.html Cite as: 2005 SLT 553, 18 BHRC 527, (2005) 1 SC (PC) 28, (2005) SCCR 446, 2005 GWD 17-30, [2005] HRLR 26, (2005) SLT 553, [2005] UKPC D 2, [2005] UKPC D2, 2005 SCCR 446, (2005) GWD 17-306, 2005 1 SC (PC) 28 |
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Sinclair v. Her Majesty's Advocate (Devolution) [2005] UKPC D2 (11 May 2005)
ADVANCE COPY
Privy Council DRA. No. 2 of 2004
Alvin Lee Sinclair Appellant
v.
Her Majesty's Advocate Respondent
FROM
THE HIGH COURT OF JUSTICIARY
SCOTLAND
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 11th May 2005
------------------
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
------------------
Lord Bingham of Cornhill
____________________
Lord Hope of Craighead
"on 6 August at 3 Ivanhoe Drive, Kirkintilloch you did assault Graeme Tennent, c/o Strathclyde Police, Kirkintilloch, strike him on the head with a hammer and repeatedly with a pair of scissors and repeatedly punch him on the head, all to his severe injury, permanent disfigurement and permanent impairment."
The medical evidence was that the complainer had sustained a compound fracture of his left mandible which required the insertion of four plates in his jaw and a penetrating injury to the full depth of his left eye which had to be removed two months later and replaced with a synthetic one. These were plainly very severe injuries. On 19 March 2002 the appellant was sentenced to eight years imprisonment.
The evidence at the trial
"So it wouldn't for example be the case that you only told the police about the scissors? You told the police that you had been fighting in the hallway and didn't know what had happened at the start and you only saw your boyfriend being struck by a pair of scissors?
Her answer to this question was:
"It is very difficult for me to remember what I said to the police at the time. I was under a great deal of shock. But what I would have said to them, what I seen at the time."
He asked her once again whether she told the police that the attack consisted of a blow with a hammer and blows with scissors, to which she replied "I would have told them what I seen, yes". In reply to his suggestion that it was incorrect that she only told the police about the scissors and that she did not mention a hammer, she replied "I would say that it was incorrect, yes". Asked whether she remembered staff in the procurator fiscal's office reading her police statement to her, she said that they had gone over her statement with her and she was asked to confirm what she had said and that as she remembered it her statement referred to a hammer and scissors.
The Appeal Court's judgment
The duty of disclosure
"I consider … that an accused person who asks the court to take the significant step of granting a diligence for the recovery of documents, whether from the Crown or from a third party, does require to explain the basis upon which he asks the court to order the haver to produce the documents. The court does not grant such orders unless it is satisfied that they will serve a proper purpose and that it is in the interests of justice to grant them. This is turn means that the court must be satisfied that an order for the production of the particular documents would be likely to be of material assistance to the proper preparation or presentation of the accused's defence. The accused will need to show how the documents relate to the charge or charges and the proposed defence to them."
"6. The Crown will, within 28 days of first appearance, provide to the defence such copies of witness statements (excluding precognitions) as are then in the possession of the Crown.
7. The Crown may require, exceptionally, to withhold provision of individual statements of witnesses where:
(i) it proposes to disclose a statement but further steps are necessary before disclosure is made. In any such case, the Crown will provide copies of such a statement as soon as practicable.
(ii) It does not intend to call a witness to speak to the terms or content of a statement and it would not be in the public interest to disclose the statement, for example because of a risk to the life of an individual or individuals, or a serious risk that other investigations or proceedings would be prejudiced by that disclosure, but where a statement is not disclosed on public interest grounds, the Crown will, where possible, provide a redacted statement as described in paragraph 10 and, in any event, ensure that it complies with its obligations of disclosure in accordance with the principles set out in McLeod v HMA."
"In any case where witness statements are provided to the defence it shall be open to the Crown to redact the statement to obscure information of a confidential nature contained within the statement, the disclosure of which the Crown considers not to be necessary for the preparation of the defence (eg information tending to identify the home address of a witness who fears intimidation), but any redaction shall be obvious on the face of the statement."
Paragraphs 11 and 12 deal with the provision to the defence of copies of documentary evidence which would appear to be of material assistance to the defence and, upon service of the indictment, of details as to where any previously undisclosed productions may be collected or examined. Paragraph 13 states that the Crown will review material developments regularly during its investigation and preparation of the case any matters which should be brought to the attention of the defence.
The article 6(1) Convention right
"It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition article 6(1) requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused."
The issue arose in that case because the prosecution decided without informing the trial judge to withhold certain relevant information from the defence on grounds of public interest. The court said in para 63 of its judgment that such a procedure, whereby the prosecution itself attempts to assess the importance of concealed information to the defence and weigh this against the public interest in keeping the information secret could not comply with the requirements of article 6(1) in the absence of scrutiny of the withheld information by the trial judge.
"53. The entitlement to disclosure of relevant evidence is not, however, an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. None the less, only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6(1). Furthermore, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (Jasper v UK [2000] ECHR 27052/95 at para 52).
54. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. In any event, in many cases, including the present, where the evidence in question has never been revealed, it would not be possible for the court to attempt to weigh the public interest in non-disclosure against that of the accused in having sight of the material. It must therefore scrutinise the decision-making procedure to ensure that, as far as possible, the procedure complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (Jasper v UK [2000] ECHR 27052/95 at para 53)."
These observations were repeated in Dowsett v United Kingdom (2003) 38 EHRR 845, paras 42-43 where the applicant complained that he had been deprived of a fair trial because the prosecution had failed to disclose all the material evidence in their possession.
Remedy
____________________
Lord Rodger of Earlsferry
__________________________
Baroness Hale of Richmond
________________________
Lord Carswell