IN THE PETITION OF THOMAS PORTER and JOHN SMITH [1999] ScotHC 255 (24 December 1999)

IN THE PETITION OF THOMAS PORTER and JOHN SMITH [1999] ScotHC 255 (24 December 1999)

The petitioners satisfied the test in McLeod v HMA for recovery of documents, as the credibility of key Crown witnesses was central and the newly disclosed material contradicted trial evidence, making the documents sought likely to be of material assistance to the appeal. Independent examination of the files by a Commissioner is warranted, subject to specified safeguards and amendments to the specification of documents.

Citation
[1999] ScotHC 255
Parties
Petitioner: Thomas Porter; Petitioner: John Smith; Respondent: Lord Advocate; Interested Party: Advocate General for Scotland
Jurisdiction
Scotland
Judgment Date
24 December 1999
Procedural Posture
Petition for Recovery of Documents in Criminal Appeal / Post Conviction, Pre Appeal Hearing
Outcome
Commission and Diligence granted for recovery of documents, subject to amendments and safeguards.
Legal Topics
Entrapment, Disclosure of Evidence, Commission and Diligence, Devolution Issues
Criminal Law Evidence Constitutional Law Entrapment Disclosure of Evidence Commission and Diligence Devolution Issues

Case Brief

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Parties

Thomas Porter

Petitioner

John Smith

Petitioner

Lord Advocate

Respondent

Advocate General for Scotland

Interested Party

Procedural Posture

Petition for Recovery of Documents in Criminal Appeal / Post Conviction, Pre Appeal Hearing

Legal Issues

  1. 1 Whether petitioners are entitled to recovery of documents from HM Customs & Excise for use in appeal
  2. 2 Whether the test for recovery of documents as set out in McLeod v HMA is met
  3. 3 Whether the evidence sought is of material assistance to the appeal, particularly regarding credibility of Crown witnesses and fairness of proceedings

Ratio Decidendi

The petitioners satisfied the test in McLeod v HMA for recovery of documents, as the credibility of key Crown witnesses was central and the newly disclosed material contradicted trial evidence, making the documents sought likely to be of material assistance to the appeal. Independent examination of the files by a Commissioner is warranted, subject to specified safeguards and amendments to the specification of documents.

Court Disposition

Commission and Diligence granted for recovery of documents, subject to amendments and safeguards.

Orders

  • Appointment of a senior member of the Bar as Commissioner to examine HM Customs & Excise records per amended specification of documents for both petitioners.
  • Commissioner to extract only relevant entries, excluding information identifying third parties or subject to statutory prohibition.