- Bookmark
- Share
- CaseIQ
Appeal under Section 301A of the Criminal Procedure (Scotland) Act 1995 by Nathan French against HMA (High Court of Justiciary)
Factual and Procedural Background
This is an appeal under Section 301A of the Criminal Procedure (Scotland) Act 1995 against the refusal by the sheriff at The City to grant a petition seeking commission and diligence for recovery of financial documents. The Appellant is indicted in the Sheriff Court on a charge of theft by housebreaking allegedly committed between 24 and 25 April 2023 at a café (referred to herein as Company B). The indictment originally libelled the theft of charity tins, a bag and £10,500 in cash; the Crown was permitted to amend the indictment by deleting the reference to £10,500 and substituting "a sum of money." The Appellant pleaded not guilty. The petition sought broad categories of Company B's financial records (annual accounts, monthly accounts, till receipts, cash books, bank statements and donations information for specified periods) on the basis that they might assist the defence in challenging the sum alleged to have been stolen. The sheriff refused the petition; the Appellant appealed and the appellate court refused the appeal.
Legal Issues Presented
- Whether an accused seeking an order for recovery of third-party or Crown documents must explain the basis on which production is sought and show that the documents would be likely to be of material assistance to the preparation or presentation of the accused's defence.
- Whether the specific categories of Company B's financial documents sought would serve a proper purpose or amounted to a fishing expedition.
Arguments of the Parties
Appellant's Arguments
- The documents sought were necessary to challenge the sum allegedly stolen and to properly prepare the defence.
- Access to records (accounts, till receipts, bank deposits) might show the true financial position of Company B and when money was last banked, thereby permitting an attack on the complainer's credibility and reliability and affecting sentencing if a larger sum were proven.
Appellee's Arguments
- The recovery of the documents would not serve any useful purpose; it was unknown what they would show and the application was speculative.
- The application amounted to a fishing diligence with no demonstrated foundation that the documents would materially assist the defence.
- The Crown undertook that any reference to the higher figure would not be taken into account for sentencing.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Case A v Case B 2000 SLT 810 | Authority cited to the effect that the complainer's unsupported word may be insufficient to establish a sum. | The court noted the citation but found that even if the complainer were wrong about the exact amount, the Crown need not prove a particular amount; the documents would not assist on the question whether any money was taken. |
| Case C v Appellee 1998 JC 67 | Establishes that an accused seeking production of documents must explain the basis for the request and show documents would be likely to be of material assistance to preparation/presentation of the defence. | The court applied this test, finding the Appellant had not shown how the broad categories of documents related to the charge or proposed defence and therefore had not established a proper purpose for production. |
Court's Reasoning and Analysis
The court applied the test from the cited authority requiring an accused to explain the basis for a production order and to show that the documents would be likely to materially assist the defence. The court reviewed the available evidential picture: CCTV showing a person committing the offence identified as the Appellant, DNA on a circular saw, signs of forcible entry and disarray at the locus, and the complainer's contemporaneous report of seeing persons on CCTV. The court observed that it was not disputed that the premises were broken into and that some sum of money was taken.
The court judged that the proposed production would not assist on the crucial issues: the documents would not determine whether any money at all was taken nor materially assist on the question of identification or commission of the offence. The Appellant had not articulated how the documents would undermine the complainer's credibility in a manner that related to the charge or the proposed defence. Given the Crown's undertaking regarding sentence, any speculative risk of prejudice from reference to the higher amount was removed. Consequently, the application was characterised as a fishing diligence and the sheriff's refusal was held to be correct.
Holding and Implications
APPEAL REFUSED
Direct effect: The appellate court upheld the sheriff's refusal to grant commission and diligence for recovery of the specified financial documents; the Appellant's petition for production was dismissed as without merit. The court indicated this decision did not create a new principle beyond applying established tests for document production and that no useful purpose would have been served by granting the broad and speculative production sought.
Alert