Introduction

The case of John Joseph McCarthy vs. Her Majesty's Advocate ([2020] ScotHC HCJAC 52) presented a significant appeal addressing the application of section 121 of the Criminal Justice and Licensing (Scotland) Act 2010 concerning the prosecutor's duty to disclose information. The appellant, Mr. McCarthy, challenged a first-instance decision that concluded the prosecutor was not obligated to disclose certain information, despite assurances from both the Crown and police that such information did not exist. This commentary delves into the intricacies of the judgment, exploring the underlying legal principles, the court's reasoning, and the implications for future legal proceedings in Scotland.

Summary of the Judgment

The High Court of Justiciary dismissed Mr. McCarthy's appeal, affirming the initial decision that section 121(3) of the 2010 Act did not compel the prosecutor to disclose the information requested. The appellant sought details regarding an individual named 'Lee,' alleged to have coerced him into drug-related offenses, and questioned whether 'Lee' was affiliated with law enforcement as an undercover agent or informant. The court held that the requested information did not exist within the Crown's possession and, therefore, fell outside the mandate of section 121(3). Consequently, the appeal was unsuccessful, and the prosecution proceeded without the disclosed information.

Analysis

Precedents Cited

The judgment referenced several key cases that influenced the court's decision:

• McDonald v HM Advocate (2010 SC (PC) 1): This case underscored the Crown's obligation to disclose relevant information but clarified that this duty does not extend to preparing the defense’s case.
• McClymont v HM Advocate [2020] HCJAC 1: Highlighted situations where the Crown should continue disclosure efforts despite initial indications that certain information may not exist.
• Hill v Procurator Fiscal, Lerwick: Addressed the boundaries of disclosure obligations concerning non-existent information.
• Macnaughton v Macnaughton's Trusts 1953 SC 387 and McLeod v HM Advocate (No. 2) 1998 JC 67: Provided insight into the procedural aspects of disclosure and the distinction between disclosure and recovery of information.

Legal Reasoning

The court's legal reasoning centered on the interpretation of section 121(3) of the 2010 Act, which mandates the disclosure of any information that could materially weaken the Crown's case or strengthen the accused's case. The defense argued that the requested information was crucial for establishing the coercion defense and verifying 'Lee's' potential role as a law enforcement agent.

However, the court concluded that:

• The Crown had diligently searched for the information but found no evidence of 'Lee's' involvement as an undercover agent or informant.
• The lack of existing information meant there was nothing within the prosecutor's possession to disclose under section 121(3).
• The appellant's repeated changes in legal representation and defense statements did not warrant a departure from statutory disclosure obligations.

Furthermore, the court emphasized that section 121(3) should not be interpreted as limited by section 116(1), which defines "information." Instead, there exists a duty of enquiry on the Crown to seek relevant information diligently.

Impact

This judgment reinforces the strict adherence to statutory disclosure obligations under the Criminal Justice and Licensing (Scotland) Act 2010. Key implications include:

• Clarification of Disclosure Limits: Prosecutors are not required to seek information that does not exist, thereby preventing unnecessary burdens on law enforcement and the Crown.
• Encouragement of Proper Defense Statements: The decision underscores the necessity for defendants to provide comprehensive and timely defense statements to facilitate appropriate disclosure.
• Judicial Scrutiny of Disclosure Claims: Courts will closely examine the existence and relevance of information before compelling disclosure, ensuring that only pertinent information is subject to disclosure obligations.
• Procedural Efficiency: By confirming that non-existent information does not trigger disclosure requirements, the judgment promotes efficiency in legal proceedings, avoiding protracted disputes over irretrievable data.

Complex Concepts Simplified

Section 121(3) of the Criminal Justice and Licensing (Scotland) Act 2010

This section imposes a duty on prosecutors to disclose any information that could either undermine the prosecution's case or bolster the defense's case. "Information" encompasses any material relevant to the proceedings that the prosecutor is aware of, regardless of how it was obtained.

Defence Statement under Section 70A

Defendants are required to submit a statement outlining their defense. This statement is crucial as it guides the Crown in identifying relevant information to disclose. Any changes to the defense must be communicated through additional statements within specified timeframes.

Disclosure vs. Recovery

Disclosure refers to the prosecutor's obligation to provide relevant information to the defense. Recovery involves the defense actively seeking specific records or evidence, usually through formal applications for commissions or diligences.

Conclusion

The judgment in McCarthy v HM Advocate [2020] serves as a pivotal reference point for understanding the scope and limitations of disclosure obligations under Scottish criminal law. By affirming that prosecutors are not required to disclose non-existent information, the court delineates clear boundaries within the statutory framework. This ensures that disclosure duties are executed meaningfully, fostering fairness in trials without imposing undue burdens on the prosecution. Moving forward, legal practitioners must heed the importance of timely and detailed defense statements to facilitate proper disclosure, thereby upholding the integrity of the judicial process.