McDonald v. Her Majesty's Advocate (The High Court of Justiciary Scotland)

Factual and Procedural Background

Three individuals – hereafter Appellant 1, Appellant 2 and Appellant 3 – were each convicted of murder at first-instance trials in the High Court of Justiciary in The City during 2005. After conviction:

• All three lodged statutory appeals challenging their convictions on traditional evidential and directional grounds.
• In 2007 their counsel lodged petitions for recovery of documents from the Crown and accompanying “devolution minutes”, asserting that the Lord Advocate (as a member of the Scottish Executive) had acted incompatibly with their Article 6(1) ECHR right to a fair trial by withholding potentially exculpatory material.
• The High Court (three-judge bench) refused the petitions of Appellants 1 and 2, continued that of Appellant 3 for further specification, and declined to receive any of the devolution minutes, holding that they were tendered late and lacked substantive merit.
• Special leave to appeal that determination was granted by the Judicial Committee of the Privy Council (“the Board”), which heard the appeals in July 2008.

Legal Issues Presented

1. Whether, at the appellate stage, Article 6(1) ECHR obliges the Lord Advocate to re-investigate past disclosure and provide all material that might undermine the conviction, irrespective of any focused request by the defence.
2. Whether the High Court’s refusal to receive the devolution minutes removed the Board’s jurisdiction under paragraph 13 of Schedule 6 to the Scotland Act 1998.
3. Whether any past non-disclosure rendered the convictions of the three appellants unsafe or the continued opposition to their appeals ultra vires under section 57(2) of the Scotland Act 1998.

Arguments of the Parties

Appellants’ Arguments

• The Crown has a continuing, positive obligation of transparency; if defence counsel or the court cannot verify that all exculpatory material has been disclosed, there is a “reasonable apprehension” of unfairness.
• Past failures in Scottish practice, illustrated by several reported cases, demonstrate that reliance on Crown goodwill and internal guidelines is inadequate.
• The High Court’s procedural refusal to admit the devolution minutes should not defeat substantive Convention rights.

The Lord Advocate’s Arguments

• The Crown accepts a duty to disclose material that materially weakens its case or materially strengthens the defence case, but Article 6(1) does not impose a duty to conduct a fresh trawl through all unused material at the appeal stage.
• Extensive reforms since Holland and Sinclair – circulars, manuals, audits and forthcoming legislation – provide a robust and transparent disclosure regime; absolute guarantees are impossible in any system.
• The High Court correctly exercised its procedural discretion; nevertheless, its decision constituted a “determination” sufficient to found the Board’s jurisdiction.

Table of Precedents Cited

Court's Reasoning and Analysis

Jurisdiction. The Board held that the High Court’s refusal to admit the devolution minutes was itself a “determination” of a devolution issue; therefore the Board’s statutory jurisdiction under Schedule 6 was engaged.

Scope of the Disclosure Duty.

1. Article 6(1) obliges the Crown to disclose material that materially weakens its case or materially strengthens the defence case. That duty is continuing but it is not a duty to “reinvestigate” every case once an appeal is lodged.
2. Requiring the Crown to comb all unused material would convert the prosecutor into an adjunct of the defence and impose a disproportionate burden inconsistent with the adversarial system.
3. Where a class of material is admittedly disclosable (e.g., witness statements, relevant criminal records), the Crown must and now does disclose it without a defence request.
4. For other material, a party seeking a recovery order must particularise the documents sought and show how they bear on the live issues; blanket calls, such as those in the present petitions, are insufficient.

Procedural Adequacy. The Board accepted evidence of extensive post-2005 reforms (circulars, audits, a Disclosure Manual, impending legislation) and the Solicitor General’s assurance that full disclosure had now been effected in each appeal. Absolute infallibility is unattainable, but a system that combines proactive Crown duties with the court’s power to compel production satisfies Article 6.

Application to Individual Appellants.

• Appellant 3: petition continued in the High Court; no current apprehension of unfairness – appeal dismissed.
• Appellants 1 and 2: although some pre-trial failures occurred, there is no demonstrated “reasonable possibility of unfairness” affecting the verdicts; their broad petitions were rightly refused by the High Court.

Holding and Implications

DISMISSED. All three appeals were dismissed. The Board confirmed that:

• The duty of disclosure under Article 6(1) does not oblige the Crown to re-examine every piece of unused material once an appeal is underway.
• Refusal by the High Court to receive a devolution minute does not oust the Board’s jurisdiction.
• Future appellants must identify specific material or demonstrate a concrete risk of unfairness; blanket petitions will not suffice.

The decision clarifies the balance between prosecutorial disclosure obligations and procedural discipline, but it sets no fundamentally new precedent beyond reinforcing existing principles.