In Allison v HM Advocate ([2010] UKSC 6) the UK Supreme Court heard argument upon, and determined the merits of, an appeal from a decision to refuse the appellant’s appeal against conviction made by the Scottish High Court of Justiciary sitting as the criminal appeal court.  The basis for the appeal to London was the appellant’s contention the Crown had failed in its duty of disclose to him and his advisers that one of the Crown witnesses (who had died by the date of the trial) had previous convictions and criminal charges outstanding against him as at the date of his death. The Crown had, at trial, introduced the record of a police interview with this witness into evidence, in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995.  They disclosed the previous convictions and the other outstanding charges only while the appellant’s appeal was pending before the appeal court. The appellant complained that their failure to disclose the witness’ criminal record meant that his legal representatives were unable to prepare and properly conduct his defence at trial and the result was he had not received a fair trial in accordance with the requirements of Article 6 of the European Convention on Human Rights. 

The first problem for the appellant was that while the claim that his trial had been conducted by the prosecution in breach of the requirements of Article 6 was made in an additional ground of appeal before the High Court of Justiciary, this claim was not made in accordance with the procedural requirements set out in paragraph 40.2 of Schedule 2 to the Act of Adjournal (Criminal Procedure Rules) 1996.   There had been no notice formally lodged on his behalf of his intention to raise before the Scottish court any “devolution issue” (as claims of breaches of Convention rights by the prosecution authorities are charactersied in Scotland).   There had accordingly been no intimation to the Advocate General for Scotland (the Scottish Law officer of the UK Government) of the appellant’s intention to raise his arguments in Convention rights terms before the court in Edinburgh.   The Advocate General was thereby apparently improperly deprived of the opportunity, if so advised, of exercising his right to enter the appeal process to make submissions on the Convention point: Mills v HM Advocate (No. 2) (2001 SLT 1359).

In these circumstances the High Court of Justiciary refused the appellant leave to appeal on to London on two grounds: first, that the appellant’s failure to follow the mandatory statutory requirements of paragraph 5  of Schedule 6 Scotland Act 1998 rendered any such further appeal incompetent; secondly and in any event, since the High Court of Justiciary had made no determination of the Convention rights issue since it had not been raised before it in those terms, there was nothing that could competently be appealed to London.

In the exercise of its devolution jurisdiction the Judicial Committee of the Privy Council overruled the High Court’s refusal and itself gave special leave to the appellant to take his appeal before them. No reasons were made publicly available for this decision on leave to appeal.  The Crown and the Advocate General (who did intervene before the UK Supreme Court) declined to take any point at the substantive appeal as to whether the UK Supreme Court properly had jurisdiction to hear the appeal standing the apparent procedural failures before the court below.   The issue was therefore dealt with somewhat shortly in the leading judgment (that of Lord Rodger) at paragraph 6 who notes:

“Undoubtedly, when the appeal court determined that the Lord Advocate was not under an obligation by virtue of article 6(1) of the European Convention to disclose the outstanding charges against Mr Stronach, they were in substance determining a devolution issue in terms of para 1(d) or (e) of Part I of Schedule 6 to the Scotland Act 1998 – irrespective of whether all the relevant procedural steps had been followed. It follows, as was held in McDonald v HM Advocate 2008 SLT 993, 1002, paras 48 and 49, that an appeal on that point lies to this Court under para 13(a) of Part II of that Schedule.”

Back in Scotland, the appeal court had accepted in their judgment that the failure by the Crown to disclose the deceased’s witnesses previous convictions had been incompatible with the appellant’s article 6(1) Convention rights but they considered, having regard to the presumption of innocence  that the Crown had been under no obligation to disclose to the defence any material outstanding criminal charges of which they were aware against the witness.    In holding that no such duty lay on the Crown, the appeal court confessed to having “insuperable difficulty in understanding how information relating to those matters could be properly deployed in the conduct of a defence”. Lord Rodger would have none of this, noting (at paragraphs 8, 10, 12) that:

“Previous generations of Scots lawyers and judges do not appear to have experienced the same ‘insuperable difficulty’ as the appeal court.  …. The Privy Council’s decision in Holland [v HM Advocate 2005 1 SC (PC) 3, at pp 24-25, paras 73-74] , that the Crown should disclose outstanding charges of Crown witnesses of which they were aware, simply reflected the common sense position that – just as in everyday life – judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others. …..[T]he appeal court seem to have thought that this was an unprincipled and incoherent innovation. It is noteworthy that they did not refer to any authority. In reality, the approach of the Privy Council, in so far as it proceeds on the basis that outstanding charges may have a bearing on a witness’s credibility, merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years. …. Not surprisingly, therefore, neither the advocate depute nor the Advocate General supported the approach of the appeal court in the present case.”

Notwithstanding the confirmation that the Crown had failed to comply with its duties under Article 6 to disclose all and any material of which it was aware which would tend either to materially weaken the Crown case or materially strengthen the case for the defence, the defence appeal to the Supreme Court still failed.   This was because Justices of the Supreme Court were agreed that there was no real possibility that the jury would have come to a different verdict on the four charges against the appellant if they had been made aware, not only of the deceased witnesses’ previous convictions, but also of the outstanding charges against him which had not been disclosed. The Justices therefore concluded, with the appeal court, that there had been no “miscarriage of justice” and dismissed the appeal.

McInnes v Her Majesty’s Advocate

The decision of the Supreme Court in McInnes v HM Advocate [2010] UKSC 7 again concerns the Crown’s duty of disclosure of evidence to the defence.   McInnes was granted leave to appeal to the Supreme Court by the Lord Justice General in Scotland who, in effect, invited the Supreme Court to clarify and tighten up its language so as to produce “a robust test” on the issue of when a failure on the part of the Crown to comply with its duties of disclosure to the defense may then be said to constitute a breach of the fair trial guarantees of Article 6 ECHR.   Relying upon certain observations by Lord Rodger in Holland v HM Advocate, (2005 SC (PC) 3 at paragraph 82) the appellant’s solicitor argued that the proper question was not whether disclosure of relevant police statements would have made a difference to the outcome of the trial but whether it could have made a difference.   If their disclosure could have made a difference to the outcome then the failure to disclose vitiated the fairness of the trial and the conviction should be quashed.   Lord Hope disagreed and, instead (at paragraphs 20, 24) produced a new formulation, stating:

“The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict.

The question which the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome – if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence”

He concluded from an examination of their reasoning that the test which the appeal court below had in fact applied in considering this appeal was the correct one and so dismissed the appeal.    In so doing, he expressly refrained from making any judgment as to whether the appeal court had correctly applied that correct test saying that such a decision did not fall within the ambit of the appellate jurisdiction of the UK Supreme Court.

This is the first part of Aidan O’Neill’s discussion of these decisions.  In the second part he will discuss their wider constitutional significance.