APPLICATIONS UNDER SECTION 128 OF THE CRIMINAL JUSTICE AND LICENSING (SCOTLAND) ACT 2010 IN PROCURATOR FISCAL, DUNDEE AGAINST (FIRST) WTH, PERTH; (SECOND) CJS, DUNDEE; AND (THIRD) GM Ltd [2016] ScotSC 15 (26 February 2016)

APPLICATIONS UNDER SECTION 128 OF THE CRIMINAL JUSTICE AND LICENSING (SCOTLAND) ACT 2010 IN PROCURATOR FISCAL, DUNDEE AGAINST (FIRST) WTH, PERTH; (SECOND) CJS, DUNDEE; AND (THIRD) GM Ltd [2016] ScotSC 15 (26 February 2016)

Section 121(3) applies to information about the nature and direction of the police operation (Operation Cartogram), the officers involved, instructions given, activities undertaken, and reports made, as well as full details of the multi-agency visit to GM Ltd on 4 June 2014, including participants, powers exercised, statements, reports, and items seized. The police and Crown applied the wrong test for disclosure, focusing on materiality to the charge rather than to the case for or against the accused. The statutory disclosure regime and fair trial rights require disclosure of this information to avoid placing the defence at a disadvantage and to ensure transparency and fairness.

Citation
[2016] ScotSC 15
Parties
Applicant: Procurator Fiscal, Dundee; First Accused: WTH, Perth; Second Accused: CJS, Dundee; Third Accused: GM Ltd, Dundee
Jurisdiction
Scotland
Judgment Date
26 February 2016
Procedural Posture
Criminal Disclosure Application / Ruling on Applications Under Section 128 of the Criminal Justice and Licensing (scotland) Act 2010
Outcome
Applications granted in part; ruling that section 121(3) applies to specified categories of information.
Legal Topics
Disclosure of Evidence, Surveillance, Fair Trial Rights, Police Powers, Abuse of Process
Criminal Law Criminal Procedure Human Rights Disclosure of Evidence Surveillance Fair Trial Rights Police Powers Abuse of Process

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Parties

Procurator Fiscal, Dundee

Applicant

WTH, Perth

First Accused

CJS, Dundee

Second Accused

GM Ltd, Dundee

Third Accused

Procedural Posture

Criminal Disclosure Application / Ruling on Applications Under Section 128 of the Criminal Justice and Licensing (scotland) Act 2010

Legal Issues

  1. 1 Whether section 121(3) of the Criminal Justice and Licensing (Scotland) Act 2010 applies to specified items of information sought by the accused
  2. 2 Whether the police and prosecutor have complied with statutory disclosure duties
  3. 3 Whether the context of police operations and surveillance must be disclosed to ensure a fair trial

Ratio Decidendi

Section 121(3) applies to information about the nature and direction of the police operation (Operation Cartogram), the officers involved, instructions given, activities undertaken, and reports made, as well as full details of the multi-agency visit to GM Ltd on 4 June 2014, including participants, powers exercised, statements, reports, and items seized. The police and Crown applied the wrong test for disclosure, focusing on materiality to the charge rather than to the case for or against the accused. The statutory disclosure regime and fair trial rights require disclosure of this information to avoid placing the defence at a disadvantage and to ensure transparency and fairness.

Court Disposition

Applications granted in part; ruling that section 121(3) applies to specified categories of information.

Orders

  • Section 121(3) applies to information regarding the purpose, direction, participants, instructions, activities, and reports of the police operation involving PCs F and C as it related to the first and second accused.
  • Section 121(3) applies to information regarding the multi-agency visit to GM Ltd on 4 June 2014, including aim, briefing, coordination, participants, agencies, positions, contact addresses, powers exercised, statements, reports, and items seized.