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But the Court, having held that a person such as Mr Trojani did not derive a right to reside from European Union law, went on to say that a citizen of the Union who had been lawfully resident in the host Member State for a certain time or possessed a residence permit, and satisfied the conditions required of nationals ... |
He was entitled, during his lawful residence in the host Member State, to benefit from the fundamental principle of equal treatment in article 12. Ratio |
I take that to mean that, even where a national of another Member State does not have the right to reside in the host country under European Union law, if he has the right to reside under the national law of the host country, he is also entitled to claim these benefits on the same terms as nationals of the host country... |
I do not find anything in Trojani to suggest that mere presence, without any right to reside in the host country, is sufficient. Ratio |
All the emphasis in the relevant paragraphs 40 to 45 is on residence and not presence and moreover on formally approved residence. Ratio |
The Courts answer to the question posed concludes, at para 46: However, once it is ascertained that a person in a situation such as that of the claimant in the main proceedings is in possession of a residence permit, he may rely on article 12 EC in order to be granted a social assistance benefit such as the minimex. Ra... |
This is a fairly clear indication that it is open to Member States to make entitlement to such benefits dependent on the right to reside in the host country, even though, of necessity, such a right will be enjoyed by all nationals but only some non-nationals. Ratio |
The AIRE Centre intervene in support of the appellant, essentially to argue that the correct mechanism to protect the public purse against non-economically active claimants from other European Union countries is, not to deny those who are lawfully present the basic means of subsistence, but to remove those who have no ... |
The Court in Trojani pointed out at paragraph 45 that: it remains open to the host Member State to take the view that a national of another Member State who has recourse to social assistance no longer fulfils the conditions of his right of residence. Ratio |
In such a case the host Member State may, within the limits imposed by Community law, take a measure to remove him. Ratio |
However, recourse to the social assistance system by a citizen of the Union may not automatically entail such a measure. Ratio |
Once again, the emphasis is on the right to reside. RPC |
I do not find there any suggestion that it is not open to the host Member State to make entitlement to such benefits conditional upon that right. RPC |
For that reason, and in agreement with Lord Hope, I would dismiss this appeal. RPC |
For the reasons given by Lord Hope and by Lady Hale, with which I fully agree, I too would dismiss this appeal. RPC |
For the reasons given by Lord Hope and by Lady Hale, with which I fully agree, I too would dismiss this appeal. RPC |
The appellant is Nat Gordon Fraser who went to trial in January 2003 at the High Court of Justiciary in Edinburgh charged with the murder of his wife Arlene Fraser, who disappeared from her home at 2 Smith Street, New Elgin on 28 April 1998. FAC |
On 29 January 2003 he was found guilty of her murder and sentenced to life imprisonment, with a punishment part of 25 years. FAC |
By a note of appeal which was lodged on 18 December 2003 he appealed against his conviction and sentence. FAC |
He was granted leave to appeal. FAC |
The indictment on which the appellant went to trial included an allegation that, after the murder and with intent to defeat the ends of justice, he did (iii) on 7 May 1998 at said 2 Smith Street, place a wedding ring, engagement ring and eternity ring belonging to said Arlene Fraser in said house. FAC |
Although the Advocate Depute withdrew this charge at the end of the Crown case, he relied on the evidence that the rings had been discovered in the house on 7 May 1998 as a crucial part of the circumstantial evidence against the appellant that he had arranged for his wife to be killed. FAC |
In his address to the jury he said that the discovery of the rings was a most compelling piece of evidence. FAC |
He invited the jury to conclude that eight or nine days after Arlene Frasers death the appellant had removed the rings from her dead body, taken them to the house and placed them in the bathroom to make it look as though she had decided to walk away from the life that she had had there. FAC |
He described the return of the rings as the cornerstone of the case against the appellant, for which he had provided no explanation. FAC |
The trial judge directed the jury that, if they reached the view that they were not prepared to hold that it was the appellant who placed the rings in the bathroom on 7 May, it would not be open to them to convict the appellant. FAC |
The case was presented on the assumption, for which unchallenged evidence had been led, that the rings were not in the bathroom when Arlene Fraser disappeared. FAC |
But it came to the notice of Crown Office after the appeal was lodged that, when he was precognosced by a Crown precognition officer on 3 July 2002, PC Neil Lynch had stated that he had visited the house on three occasions during the night of 28 and 29 April 1998 and that on the final visit he was accompanied by WPC Ju... |
He said that on the night of 28 April and the morning of 29 April he had seen jewellery, including rings, in the house and that before the official search began he had thought he saw bracelets and rings in the bathroom which looked like a wedding ring, an engagement ring or an eternity ring. FAC |
This information had not been recorded in PC Lynchs notebook and it was not included in any statement provided by him prior to the trial. FAC |
It was not provided prior to or during the trial to the Advocate Depute, nor was it provided to the appellants representatives. FAC |
PC Lynch and WPC Clark had not been precognosced by the defence in the course of their preparations for the trial. FAC |
Inquiries were then instigated, in the course of which a further precognition was taken from PC Lynch and WPC Clark was also precognosced. FAC |
When he was precognosced on 8 February 2006 PC Lynch said that he first attended the house with WPC Clark around 10.30 pm to 11.00 pm on 28 April 1998 and that during this visit he saw jewellery in the bathroom. FAC |
His recollection was that there were two or three rings there and a chain necklace, or maybe two. FAC |
The rings were wedding, engagement or eternity type rings. FAC |
When she was precognosced on 2 March 2006 WPC Clark said that either on the night of 28 April or in the early hours of 29 April she saw jewellery in the bathroom. FAC |
There were at least two finger rings and a chain, and one of the rings could have been a ladys wedding ring or an eternity ring. FAC |
This information had not been recorded in her notebook and it was not included in any statement provided by her before the trial. FAC |
The information which had been obtained on precognition from PC Lynch and WPC Clark was disclosed to the appellant on 8 March 2006. FAC |
On 11 March 2006 a statement was issued by the Crown Office and Procurator Fiscal Service in which it was said that the Lord Advocate regarded it as a matter of serious concern that this evidence was not made available to the defence before the trial. FAC |
The Area Procurator Fiscal for Glasgow, Catherine Dyer, and the Deputy Chief Constable of Strathclyde, Richard Gray, were asked to carry out a full investigation. FAC |
They reported on 30 October 2006. FAC |
In the course of their investigation they interviewed the Advocate Depute, now the Hon Lord Turnbull. FAC |
He said that he thought at an early stage of his involvement in the case that the rings were the key piece of evidence, and that the information in PC Lynchs precognition was so inconsistent with his thinking that if it had come to light during the trial it would have had to have been deserted. FAC |
In the light of the information disclosed by the Crown the appellant lodged additional grounds of appeal in May 2006. FAC |
These were followed by revised additional grounds in February 2007, in which it was submitted that there had been a miscarriage of justice because the evidence of PC Lynch and WPC Clark was not heard at the trial and because the Crown had failed to disclose the information that PC Lynch had provided when he was precogn... |
The appeal was set down for hearing by the Appeal Court (the Lord Justice Clerk (Lord Gill), Lord Osborne and Lord Johnston) in November 2007. FAC |
On 13 November 2007, which was the first day of the appeal hearing, the appellant moved the Appeal Court to allow an additional ground of appeal and a devolution minute, which was in similar terms, to be received. FAC |
In the devolution minute it was stated that the appellant intended to raise a devolution issue on the following grounds: i. That the Crown was in possession of information from Police Constable Neil Lynch, regarding the presence of Arlene Frasers rings in the bathroom at the locus at the time of her disappearance, prio... |
ii. FAC |
That said information was material evidence, which in the context of the trial, tended to undermine the Crown case and would have been of material assistance to the proper preparation or presentation of the minuters defence. FAC |
iii. FAC |
That the Crown was under a duty to disclose to the defence any information which undermined its case. FAC |
iv. FAC |
That, in breach of its duty, the Crown failed to disclose said information to the defence, thereby infringing the minuters rights under article 6(1) of the Convention. FAC |
v. That, irrespective of its duty to disclose said information, the Crown was under a duty to present the case against the minuter on an accurate premise, and in a manner which was consistent with the minuters right to a fair trial. FAC |
In making the cornerstone of its case the reappearance of Arlene Frasers rings on 7 May 1998 and incriminatory inferences to be drawn from that fact in circumstances where it knew or ought to have known of a body of evidence which would render the invitation to a jury to draw such inferences inappropriate, the Crown in... |
vi. FAC |
That accordingly the conviction should be quashed. FAC |
The Appeal Court refused the motion for the additional ground of appeal and the devolution minute to be received. FAC |
The reasons that it gave for this decision were that they came too late, that sufficient cause had not been shown and that the matters sought to be raised were adequately covered by the existing grounds of appeal. FAC |
In the course of the hearing, which occupied a total of 13 days, the appellants counsel restricted his argument to the question whether there had been a miscarriage of justice on the ground of fresh evidence within the meaning of section 106 of the Criminal Procedure (Scotland) Act 1995, and on the ground of non-disclo... |
The non-disclosure ground of appeal was therefore treated in the same way as the fresh evidence appeal. FAC |
On 6 May 2008 the Appeal Court refused the appeal against conviction and continued the appeal against sentence to a date to be afterwards fixed: [2008] HCJAC 26, 2008 SCCR 407. FAC |
The appeal against sentence was subsequently abandoned. FAC |
The appellant then sought leave of the Appeal Court to appeal to the Judicial Committee of the Privy Council against the Appeal Courts refusal to allow the devolution minute to be received. FAC |
Having heard argument on 31 October 2008, the Appeal Court (the Lord Justice Clerk, Lord Osborne and Lord Wheatley) refused the application for leave to appeal on 24 March 2009 as incompetent: [2009] HCJAC 27, 2009 SCCR 500. FAC |
Delivering the opinion of the court, Lord Osborne said in para 13 that the identification of the devolution issue depended on the content of the devolution minute which had been tendered and rejected on 13 November 2007. FAC |
It follows from that that, in any appeal for which leave might be granted by us, the appellant would seek to canvass exactly the same issues as were canvassed in his appeal under section 106 of the 1995 Act, but this time before the Judicial Committee of the Privy Council. FAC |
What decision they might or might not reach in any such appeal can only be a matter of conjecture at this stage. FAC |
However, what is clear is that the allowance of leave for such an appeal as this would authorise a procedure under which the Judicial Committee, in the circumstances of this case, would, quite simply, review the merits of the decision reached by this court on 6 May 2008. FAC |
Whatever was contemplated by Parliament in enacting paragraphs 1(c) and 13 of Schedule 6 to the Scotland Act 1998, we do not think that it was intended to achieve such a result as that. FAC |
Had it been the intention of Parliament to introduce, for the first time, a right of appeal to the Privy Council against the merits of decisions by the High Court of Justiciary determining appeals to it under section 106 of the 1995 Act, we are of the opinion that it would have made that intention clear. FAC |
That has not been done. FAC |
The appellant then lodged a petition with the Judicial Committee of the Privy Council in which he sought special leave of the Judicial Committee under para 13 of Schedule 6 to the Scotland Act 1998 to appeal against the determination by the Appeal Court of the devolution issue which he had raised in the devolution minu... |
Consideration of his petition for special leave was deferred pending the determination by the Supreme Court (which by now had inherited the jurisdiction of the Judicial Committee in relation to devolution issues under section 40(4)(b) of and Schedule 9 to the Constitutional Reform Act 2005) of the appeals in Allison v ... |
On 21 April 2010 the appellant lodged a supplementary submission in support of his application for special leave to appeal. FAC |
On 20 May 2010 the Court granted his application for special leave. FAC |
The devolution issue Ratio |
As I recently sought to emphasise, this court must always be careful to bear in mind the fact that the High Court of Justiciary is the court of last resort in all criminal matters in Scotland: see section 124(2) of the Criminal Procedure (Scotland) Act 1995; McInnes v HM Advocate 2010 SLT 266, para 5. Ratio |
Our appellate jurisdiction in relation to its decisions extends only to a consideration of a devolution issue which has been determined by two or more judges of that court: para 13 of Schedule 6 to the Scotland Act 1998. Ratio |
It goes no wider than that. Ratio |
If, therefore, the effect of the appellants application for special leave was that we were simply being asked to review the determination under section 106 of the 1995 Act of his appeal by the Appeal Court, as Lord Osborne indicated at 2009 SCCR 500, para 13, we would have been bound to refuse the application for speci... |
The appellants application for special leave was granted by this court for two reasons. Ratio |
The first was that the decision by the Appeal Court to refuse to allow the devolution issue to be received amounted to a determination of that issue for the purposes of para 13 of Schedule 6 to the Scotland Act 1998: see McDonald v HM Advocate [2008] UKPC 46, 2009 SLT 993; Allison v HM Advocate [2010] UKSC 6, 2010 SLT ... |
The second was that it appeared to this court, applying the tests set out in McInnes v HM Advocate, 2010 SLT 266, paras 19-20 and 28-30, that it was seriously arguable that material had been withheld from the appellant which ought to have been disclosed to him and his advisers with the consequence the appellant did not... |
The tests set out in McInnes fall into two parts which, as I said in para 19, must be considered and applied separately. Ratio |
First, there is the test that is to be applied in order to decide whether the material which was withheld from the defence is material which ought to have been disclosed to it. Ratio |
The test here is whether the material might have materially weakened the Crown case or might materially have strengthened the case for the defence. Ratio |
As was explained in HM Advocate v Murtagh [2009] UKPC 35, 2010 SC (PC) 39, [2010] 3 WLR 816, para 11, this test was identified by Lord Justice General Rodger in McLeod v HM Advocate (No 2) 1998 JC 67. Ratio |
He said that the duty of disclosure was an aspect of the role of the Crown as it had been understood since Slater v HM Advocate 1928 JC 94; see also Downie v HM Advocate 1952 JC 37, p 40 per Lord Justice General Cooper; Smith v HM Advocate 1952 JC 66, p 72 per Lord Justice Clerk Thomson. Ratio |
As Lord Rodger said in McLeod at p 79F-G, our system of criminal procedure proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused. Ratio |
This test is well settled in Scots law and in the jurisprudence of this court: see Sinclair v HM Advocate 2005 SC (PC) 28, para 33; Allison v HM Advocate 2010 SLT 261, paras 25-28. Ratio |
There are, no doubt, various ways of expressing it. Ratio |
In his Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland (Scottish Government, Edinburgh, 2007), para 5.46 Lord Coulsfield recommended that it should be the duty of the prosecutor to disclose to the defence all material evidence or information which would tend to exculpate the accused whe... |
But the way it was set out in McInnes, paras 19 and 28, can be taken to be the definitive way of expressing the test. Ratio |
Then there is the test which is set out in McInnes, paras 20, 24 and 30. Ratio |
It is directed to the consequences of the violation. Ratio |
A failure by the Lord Advocate to disclose to the defence material which, applying the first test, ought to have been disclosed to it is incompatible with the accuseds article 6 Convention right to a fair trial: Rowe and Davis v United Kingdom (2000) 30 EHRR 1, para 60; Edwards v United Kingdom (1992) 15 EHRR 417, para... |
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