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8. The consequences of a failure to disclose
8.1 The questions with which this section of the report is concerned are what should be the consequences if the Crown fails to disclose material which should have been disclosed; and what are the consequences under the law as presently understood and expressed in court decisions, particularly those of the Judicial Committee of the Privy Council.
8.2 I consider first what should be the consequences. A breach of any of the recognised human rights guaranteed by the ECHR and the Human Rights Act is a very serious matter and can never be passed over lightly. On the other hand, it is important in the interests of justice that prosecutions should not be defeated by minor or technical infringements which do not substantially affect the fairness of the proceedings. Most if not all systems recognise this in their laws governing criminal procedure by providing something to the effect that a conviction is not to be quashed or set aside unless there has been a miscarriage of justice, or some similar phraseology. For example, in section 106 of the 1995 Act the sole ground of appeal is that there has been a miscarriage of justice.
8.3 The question becomes more controversial when the right infringed is one given by a constitution or similar fundamental document, and there are conflicting views in many different jurisdictions. The debate and the arguments on each side were extensively reviewed by Lord Bingham in A-G's Reference (No. 2 of 2001) [2003] UKHL 68. His conclusion, reached after a survey of authorities world-wide, including decisions of the ECtHR, was that a fault should not, in general, prevent or invalidate a conviction unless it had led to a miscarriage of justice. The same view has been taken by, for example, the Constitutional Court in South Africa ( Sanderson v Attorney General for the Eastern Cape [1998] 2 SA 38) and the reason was crisply expressed by Sir Sidney Kentridge in another African case when he said:
"I cannot, with respect, agree that any breach of the constitutional rights of an accused must ipso facto result in a failure of justice at his trial. Nor do I think that the proviso quoted above is inconsistent with the provisions of the Constitution. If there has been an infringement of the rights of the accused, while being careful not to nullify or abridge his protection, one must consider what effect it has had on the case in question. I see no reason why a constitutional irregularity should in this respect differ from other types of irregularity." ( AG v Moagi [1982] 2 BLR 124.)
8.4 The present position in Scotland is complicated, however, by the provisions of the Scotland Act and the interpretation which has been given to it. Section 57(2) of the Act provides:
"A member of the Scottish Executive has no power to make any subordinate legislation or to do any other act so far as the legislation or act is incompatible with any of the Convention rights or with community law."
8.5 The Lord Advocate is a member of the Executive, and it has, in consequence, been held that the Lord Advocate has no power to proceed with a prosecution when to do so involves a breach of a convention right. The effect of that view in relation to the present issue was most strongly expressed by Lord Hope in Sinclair, where he said:
"As Lord Rodger of Earlsferry observed in R v HM Advocate [2003] SC ( PC) 21, 73, para. 155, it is not open to the court if this subsection is breached to assess what the consequences of any particular violation of an individual's Convention rights should be. Parliament has decided that members of the Scottish Executive, including the Lord Advocate, should have no power to do acts that are incompatible with any of the Convention rights. In this case that means that the Lord Advocate, having proceeded to trial without having made Pamela Ritchie's statements available to the defence as Article 6(1) requires had no power to continue with it and seek a conviction without making those statements available to the defence as soon as it became apparent that she was changing her evidence. But it could equally be said in this case that the failure to disclose the statements was a failure to act by the Lord Advocate which was incompatible with the appellant's Article 6(1) Convention right: see para. 1 (e) of Schedule 6 to the Scotland Act. The right to a fair trial is an absolute right which cannot be compromised: Brown v Stott [2001] SC ( PC) 43 per Lord Bingham of Cornhill at p. 60 A-B, see also p. 74B. If the accused has not had a fair trial, the verdict cannot stand and the conviction must be quashed."
8.6 On the face of it, that passage equates a failure in disclosure, of whatever kind, with an unfair trial. That reading of the passage is consistent with the fact that the Judicial Committee did not make any assessment of the importance or otherwise of the particular failure in the context of the actual trial. (That is significant because it appears to me that it was strongly arguable that at the critical point in the trial the defence must have been aware that the witness was saying something different from what she had previously said, or been recorded as saying, and it was open to them to pursue the point by questioning the witness further or by asking to see any previous statements. In any event, it is perfectly possible that the discrepancy was not particularly material in the context of the whole evidence.) The view that a failure in disclosure of whatever degree amounts to an unfair trial might also be regarded as consistent with the decision of the JCPC in H M Advocate v R [2003] SC ( PC) 21 in which it was held (by a majority of three to two, overruling a unanimous decision by the High Court approving the judge of first instance) that there was no discretion as to the remedy which the court must apply in a case of breach by delay 16.
8.7 In these circumstances, it has to be assumed, for the time being at least, that any breach of the obligation to disclose may be fatal to a conviction. The drastic effect which, on this reading, the decision in Sinclair would have is one which similar failures do not necessarily have in England and Wales or, indeed, so far as can be seen, in any other Convention jurisdiction. For the reasons advanced earlier, and with all respect to the decision of the majority in R v HMA, it seems to me that the effect of that decision is much too stringent and is prejudicial to the proper administration of justice.
8.8 The problem posed by this approach to section 57(2) has been noted before now. Lord Bonomy drew attention to some aspects of it in chapter 17 of his Review in 2002 of the Practices and Procedure of the High Court, and suggested that there was a need for UK legislation to amend the Scotland Act. In his speech in HM Advocate v R Lord Steyn, in the minority, advanced very powerful objections to the effects of the majority decision and pointed out that it was inconsistent with the approach taken in South African and Canadian cases.
8.9 It is possible that the question of the meaning and effect of section 57(2) will be reconsidered in cases which will be heard by the House of Lords in the near future, in particular in an appeal against the decision of the Inner House in Somerville v The Scottish Ministers [2006] CSIH 52, 2007 SLT 96. The issues in that case are complex and I do not think that it would be useful to try to discuss them in this report. It is enough to say that one of the issues concerns the relationship between the Scotland Act and the Human Rights Act, especially in regard to the remedies available for breaches of Convention rights. However, Somerville is not directly concerned with disclosure and a decision in that appeal will not necessarily produce an answer which can be directly applied in the context with which this report is concerned.
8.10 It remains the case, of course, that the interpretation of the Scotland Act is a matter for the JCPC, whose decision will be binding on the Scottish Parliament and Executive. In view of the present uncertainties, I do not find it possible to make a positive recommendation, but I would find it unsatisfactory to leave the matter there, if the Executive and Parliament agree with the views which I have expressed in the previous paragraphs. I can only suggest that, if there is a remaining doubt about the consequences of a failure in disclosure, consideration should be given to the possibility that the Scottish Parliament might legislate in order to try to resolve the doubt 17.
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