The accused sought to defend a charge on indictment of assault on a special defence of self-defence and gave notice of an intention to attack the character of the complainer and the other two Crown witnesses. He sought the previous convictions of the complainer and these witnesses, as well as those relating to a third witness who had been cited for the defence.
Held: The court declined to follow Ashrif and ordered production of the previous convictions of all four witnesses: ‘In my opinion, provided the witnesses’ previous convictions are relevant to a legitimate attack on character or to their credibility, the material sought would plainly be relevant to his defence. It is therefore material which the petitioner is prima facie entitled to have disclosed to him. Moreover, in my view he is prima facie entitled to have it disclosed to him in advance of the trial. His right is to have disclosed to him material necessary for the proper preparation as well as the proper presentation of his defence. Possession of information about the witnesses’ relevant criminal records would enable the petitioner’s counsel or solicitor to make proper preparation for the cross-examination of the witnesses in question. Lack of that information in advance would not wholly preclude the contemplated lines of cross-examination, but would make embarking on them a much more uncertain course. Matters of credibility and character depend very much on the impressions made on the jury, and cross-examination might well be less effective if embarked upon without knowledge of the detail of the witnesses’ records. An impression unfairly unfavourable to the petitioner might be made on the jury if cross-examination were embarked upon on his behalf, appeared to be unsuccessful, then was followed by re-examination which showed that the cross-examiner had been ill-informed.’
Judges:
Lord Macfadyen
Citations:
2001 SCCR 172
Jurisdiction:
Scotland
Citing:
Not Followed – HM Advocate v Ashrif 1988
The accused had sought to recover the previous convictions of the complainant not from the prosecution, but from the Scottish Criminal Record Office.
Held: The appeal court came down firmly against permitting defence agents to recover the . .
Cited by:
Cited – Holland v Her Majesty’s Advocate (Devolution) PC 11-May-2005
The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure.
Held: The combination of several failings meant that the defendant . .
Lists of cited by and citing cases may be incomplete.
criminal Practice
Updated: 13 May 2022; Ref: scu.225526
