Date: May 3, 2025

Commission and Diligence in Criminal Cases: Documents Must Be Material to a Stated Defence, Not a Speculative Challenge to Value

1) Introduction

In [2026] HCJAC 23, the Appeal Court of the High Court of Justiciary considered an appeal under section 301A of the Criminal Procedure (Scotland) Act 1995 against a sheriff’s refusal to grant commission and diligence for recovery of extensive financial records from a café said to have been the locus of a housebreaking theft.

The appellant was indicted in the Sheriff Court on a charge of theft by housebreaking allegedly committed between 24 and 25 April 2023. The indictment was amended (without appeal) from alleging theft of “£10,500” to alleging theft of “a sum of money”. The defence position, per the defence statement, was a general not guilty plea taking issue with all facts, with no special defences.

The recovery application sought wide-ranging annual and monthly accounts, till receipts, cash books and bank statements, essentially to challenge the complainer’s assertion as to the amount of cash present and allegedly taken, and to address perceived potential sentencing consequences if a higher figure featured in evidence.

Key Issues

What threshold must be met before a court grants commission and diligence for document recovery in a criminal case?
Is it a “proper purpose” to seek business accounts to dispute the amount stolen when the libel is “a sum of money”?
Can potential sentencing impact justify recovery where guilt and the existence of theft are otherwise the live issues?

2) Summary of the Judgment

The Appeal Court (Lord Justice Clerk, Lord Matthews, Lady Wise; reasons delivered by Lord Matthews) refused the appeal. It held that the application was correctly characterised as a “fishing diligence” because it did not articulate a defensible basis showing that the specified documents would be likely to be of material assistance to the proper preparation or presentation of the defence.

The court emphasised that, given the amended libel (“a sum of money”), the Crown did not require to prove any particular figure, and the documents sought would not materially assist in resolving whether any money was stolen. The asserted relevance to credibility and reliability was not explained in a way that connected to a concrete defence. On sentencing, the Crown undertook that even if a figure such as £10,500 arose in evidence, it should not be taken into account in sentence. In that context, the application “did not get off the ground”.

3) Analysis

A. Precedents Cited

1) McLeod v HM Advocate 1998 JC 67

The court treated McLeod v HM Advocate 1998 JC 67 as supplying the governing test. Quoting the Lord Justice General (Rodger), it reiterated that an accused seeking the “significant step” of diligence for recovery must:

explain the basis for the order,
show the order will serve a proper purpose and is in the interests of justice, and
demonstrate the documents are likely to be of material assistance to the proper preparation or presentation of the defence, including how they relate to the charge and the proposed defence.

The present decision is a straightforward application of that test: where the defence cannot articulate how documents will materially advance a stated defence, the court will refuse diligence as speculative.

2) Carson v McGlennan 2000 SLT 810

The petition relied on Carson v McGlennan 2000 SLT 810 for the proposition that the complainer’s unsupported assertion of value might be insufficient. The Appeal Court did not accept that this assisted the appellant on these facts. The critical distinction was that the Crown’s burden here was not to prove a specific sum (post-amendment), and the recovery sought was not shown to bear materially on whether there was a theft of money at all.

In effect, even if Carson supports scrutiny where proof of a particular amount is legally or practically important, it does not justify wide-ranging recovery where the amount is not an essential feature of the libel and no coherent defence use is identified.

B. Legal Reasoning

1) Materiality to a proposed defence, not general investigatory value

The court anchored its reasoning in the requirement that diligence must be shown to be materially assistive to the defence as actually advanced. The defence statement was a general denial. Against that background, the request for years of financial records was not linked to a defined defence theory (for example, that no money was stolen, or that the complainer fabricated the incident, or that the alleged theft related only to non-cash items).

2) “A sum of money” and the limited relevance of accounting records

The amended indictment shifted the focus away from quantification. The court treated the alleged amount as non-essential: the Crown required to prove theft of money, not a particular value. The court therefore considered that:

the documents would not reliably establish how much cash was on the premises on the relevant night, and
even if they could, that would not answer the core issues of whether money was present and whether money was stolen.

3) Credibility/reliability must connect to an issue that matters

While credibility and reliability are commonly in issue in criminal trials, the court regarded them as lacking significance here because the defence did not explain why undermining the complainer on cash-handling would materially advance the defence case. The court pressed counsel to articulate the point; the inability to do so was decisive. This reinforces that “credibility” is not a free-standing justification for intrusive recovery—there must be a demonstrable link to a material issue in dispute.

4) Sentencing concerns neutralised by Crown undertaking

The petition framed recovery as important to avoid prejudice if a higher sum influenced sentence. The Crown’s express undertaking that any mention of £10,500 should not be taken into account at sentencing removed that asserted forensic need. The court treated this as eliminating the only clearly articulated practical rationale for quantification.

5) Fishing diligence

The Appeal Court endorsed the sheriff’s characterisation: the request was “nothing more than a fishing diligence”. The decision illustrates that a broad request, coupled with uncertainty as to what it will show and how it will be used, will be refused—especially where the applicant could not plausibly know what third-party business records contain.

C. Impact

Reinforcement of a disciplined approach to recovery requests: Applications must be tightly tied to a defence theory and to issues the Crown must actually prove. Generalised aspirations to test a complainer’s account are insufficient.
Quantification disputes in theft/housebreaking: Where the libel is “a sum of money”, courts may view extensive recovery aimed at pinning down a figure as marginal unless the applicant explains a concrete trial or sentencing purpose that remains live.
Practical guidance for defence practice: A defence statement that is a blanket denial, without further specification, may make it harder to justify diligence unless counsel can still articulate a precise, material use (e.g., supporting a specific line of cross, supporting an alternative narrative, or enabling a defined submission).
Sentencing safeguards: The case suggests that where the indictment has been amended to remove a specific value, a clear Crown position (or undertaking) about what will not be relied upon at sentencing can materially weaken recovery requests motivated by valuation.

4) Complex Concepts Simplified

Commission and diligence: A court-authorised process to recover documents or other evidence (from the Crown or third parties) for use in criminal proceedings. Because it can be intrusive and burdensome, it is granted only where justified as necessary and materially helpful.
Fishing diligence: A request framed to “see what turns up” rather than to obtain identified materials that are shown to be relevant and materially helpful to a defined defence. Courts refuse such requests to prevent speculative trawling through records.
Amendment of an indictment: A procedural step allowing the Crown (with the court’s permission) to change the wording of the charge. Here, removing “£10,500” and substituting “a sum of money” reduced the importance of proving an exact figure.
Defence statement / no special defences: The defence statement indicates the nature of the defence position. “No special defences” means the defence is not relying on specific formal defences (such as alibi, self-defence, etc.) that carry additional procedural requirements.

5) Conclusion

[2026] HCJAC 23 reaffirms that commission and diligence will only be granted where the accused can explain, with specificity, how the documents sought are likely to be of material assistance to the defence as actually advanced, applying McLeod v HM Advocate 1998 JC 67. Where an indictment alleges theft of “a sum of money”, a speculative attempt to obtain extensive financial records to dispute value—without a clear connection to a live issue the Crown must prove, and with sentencing concerns neutralised— is properly refused as a fishing diligence.