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At this stage the significance and consequences of the violation must be assessed. Ratio |
The question is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair. Ratio |
It was in order to indicate more precisely what fair means in this context that the court went on to give this further guidance. Ratio |
The test that is to be applied to determine this issue 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 if the withheld material had been disclosed to the defence. Ratio |
The decision of the Appeal Court (Lady Paton, Lord Hardie and Lady 00000000Smith) in Hay v HM Advocate [2010] HCJAC 125, 2011 SLT 293 provides a good illustration of a case where the application of that test may lead to the refusal of an appeal. Ratio |
The question in this appeal, therefore, is whether the way the Appeal Court dealt with the non-disclosure aspects of the appeal satisfies the requirements of these two tests. Ratio |
This is not an easy question to answer as, having refused to entertain the appellants devolution minute, the Appeal Court dealt with all aspects of the appeal as a fresh evidence appeal which was regulated by section 106 of the 1995 Act: 2008 SCCR 407, para 131. Ratio |
The Lord Justice Clerk explained his approach in para 193 in this way: Since there is no devolution issue in this appeal, I need not consider the points that the advocate depute raised about the test in appeals to the Privy Council. Ratio |
This appeal falls to be dealt with solely as an appeal under section 106 based on the contention that there has been a miscarriage of justice. Ratio |
If I am right, the test set by Lord Justice General Emslie in Cameron v HM Advocate [1991 JC 252, at 262], and followed by this court for over 20 years, applies to both grounds of appeal. Ratio |
The approach which the Appeal Court took requires this court to compare the tests set out in McInnes with those which are applied to appeals under section 106 in order to determine whether, having regard to the way the Appeal Court deal with the case, there is any difference between them. Ratio |
If we can be satisfied that there is no material difference between the tests that the Appeal Court actually applied and the McInnes tests, that will be an end to the case. Ratio |
That is because, as I said in McInnes, para 18, the jurisdiction of this court does not extend to the question whether, having identified the right tests, they were applied correctly by the Appeal Court. Ratio |
But we cannot avoid looking at what the Appeal Court did to see whether the tests that it applied were so similar to what the McInnes tests require that it made no difference whether the appeal was decided as a fresh evidence appeal or under the Convention. Ratio |
Section 106 of the 1995 Act STA |
In McInnes, para 5, I said that it was not for this court to comment on the test applied by the Appeal Court in fresh evidence appeals which do not raise a devolution issue. Ratio |
This must be so, as this court has no jurisdiction in appeals of that kind. Ratio |
But in this case, as it is an appeal in which a devolution issue has been raised but which was determined by the Appeal Court solely by applying Lord Justice General Emslies test as if it were a fresh evidence appeal only, it is not possible to be so reticent. Ratio |
A comparison of the kind that is required in this case cannot be carried out without first analysing that test and the tests that sections 106(3) and (3A) of the 1995 Act, as substituted by section 17 of the Crime and Punishment (Scotland) Act 1997, lay down. Ratio |
Section 106 must, of course, be read and given effect in a way that is compatible with the Convention rights, so far as it is possible to do so: section 3(1) of the Human Rights Act 1998. Ratio |
The relevant parts of the substituted section 106(3) are in these terms: (3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on subject to subsections (3A) to (3D) below, the existence and significan... |
(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard. STA |
Subsection (3B) allows the court to admit evidence which was inadmissible at the time of the trial but which has become admissible under the law that is current at the time of the appeal. STA |
Subsections (3C) and (3D) deal with the situation where a witness who gave evidence at the trial wishes to change his story. STA |
As the Appeal Court said at 2008 SCCR 407, para 193, the test to be applied to an appeal on the ground of fresh evidence was laid down by Lord Justice General Emslie in Cameron v HM Advocate 1991 JC 252; see also Williamson v HM Advocate 1988 SCCR 56 at p 59. RLC |
It is first necessary for the court to find that the statutory tests set out in the amended section 106 are satisfied: that the additional evidence was evidence that was not heard at the original proceedings, and that there is a reasonable explanation of why it was not so heard. RLC |
If it so finds, the court must then direct its attention to the additional test which Lord Justice General Emslie laid down in Cameron. RLC |
He distinguished between cases where the court is satisfied that, if the original jury had heard the new evidence, its significance was such that the jury would have been bound to acquit and cases where the court cannot be so satisfied. RLC |
It was with regard to cases of the latter kind that he said at p 262: if the court is to find that a miscarriage of justice had occurred in an appeal such as this, it must be satisfied that the additional evidence is at least capable of being described as important and reliable evidence which would have been bound, or ... |
If the court is so satisfied, it will be open to it to hold that a conviction returned in ignorance of the existence of that evidence represents a miscarriage of justice and it may exercise its power to authorise the bringing of a new prosecution. RLC |
This test can, for the purposes of a comparison with the tests set out in McInnes, be divided into two parts. Ratio |
First, there is what may be described as the threshold test: assuming that this is evidence that satisfies the statutory requirement that it was not heard at the original proceedings and there is a reasonable explanation of why it was not so heard, is it at least capable of being described as important and reliable evi... |
Then there is what may be described as the consequences test, introduced by the words it will be open to it to hold: does a conviction returned in ignorance of the existence of that evidence represent a miscarriage of justice? The comparison here is with the test as to whether the trial was fair that is set out in McIn... |
This analysis fits with the approach that was taken to the Cameron test by the Lord Justice Clerk at 2008 SCCR 407, paras 132 and 133. Ratio |
An alternative reading of it would be to read the words which I have quoted as setting out a threshold test which leads inevitably, if satisfied, to the conclusion that the verdict of the jury, reached in ignorance of the existence of the additional evidence, must be regarded as a miscarriage of justice. Ratio |
On that view it will be enough to show that the test set out in the preceding words has been met. Ratio |
In practice there may be little to choose between these two approaches. Ratio |
For present purposes, however, I think that it is preferable to follow the Lord Justice Clerks approach. Ratio |
It has the merit of giving weight to the words it will be open to it to hold, which suggest that the court should regard the reference to a miscarriage of justice in the concluding words of the Cameron test as raising a question that ought to be considered separately. Ratio |
The tests compared Ratio |
I take first what I have called the threshold test. Ratio |
The context for its formulation by Lord Justice General Emslie, in the opinion which he delivered in Cameron on 23 October 1987, was the introduction of new statutory provisions governing appeals on indictment by section 33 of and Schedule 2 to the Criminal Justice (Scotland) Act 1980. Ratio |
In its original form section 228 of the Criminal Procedure (Scotland) Act 1975 provided simply that a person convicted might appeal to the High Court against his conviction on any ground of appeal which involved a question of law alone or, with the leave of the High Court or upon the certificate of the trial judge that... |
The statute did not refer to the possibility of relying on additional evidence, and the court had no power to allow a new trial. Ratio |
In Gallacher v HM Advocate 1951 JC 38 it was held that the question for the court in such an appeal was whether it was reasonably satisfied that, if the additional evidence was before the jury, it would not have convicted: see also Elliott v HM Advocate 1995 JC 95, 104-105 where the history of the statutory provisions ... |
The 1980 amendments introduced for the first time a statutory test for an appeal based on additional evidence, and it also conferred on the court a power to set aside a verdict and to authorise a new prosecution. PRE |
In the light of these amendments the test set out in Gallacher was no longer appropriate: Green v HM Advocate 1983 SCCR 42; Cameron v HM Advocate 1991 JC 251, 260. PRE |
Lord Justice General Emslies threshold test, as he explained at 1991 JC 251, 262, was intended to define the approach which the court must take for all cases where the appellant sought to rely on additional evidence. Ratio |
He had already observed at p 262 that setting aside the verdict of a jury was no light matter: see also Megrahi v HM Advocate 2002 JC 99, para 219 where Lord Justice General Cullen repeated this observation in his summary of the Cameron test. Ratio |
The availability of a right of appeal based on additional evidence was to be understood against that background. Ratio |
So Lord Justice General Emslie introduced an additional, and quite stringent, consequences test which was not to be found in the words of the statute. Ratio |
It remains the test which the High Court applies in these cases, as the Lord Justice Clerk explained in his opinion 2008 SCCR 407, para 193. Ratio |
The threshold test as to whether the material on which the appellant seeks to rely in a non-disclosure case is admissible for the purposes of an appeal based on a violation of his article 6 Convention right is different from the threshold test which section 106(3)(a) and subsection (3A) lay down for an appeal that is t... |
It also differs from the additional threshold test set out in Cameron which was, of course, not designed for use in cases where the appellants ground of appeal is that there has been a violation of his article 6 Convention right to a fair trial because the Crown failed to disclose material which, applying the test in M... |
The Cameron test asks whether the disclosed evidence would have been likely to have had a material bearing upon the jurys determination of a critical issue at the trial. Ratio |
That is a more stringent and more narrowly defined test than the McInnes test, which asks whether the material might have materially weakened the Crown case or materially strengthened the case for the defence. Ratio |
Then there is what I have called the consequences test in Cameron: was the conviction which was returned in ignorance of the existence of the additional evidence a miscarriage of justice? Is this a different test from that set out in McInnes, para 20 of which asks whether, taking all the circumstances of the trial into... |
The words are obviously quite different. Ratio |
But are the tests which they describe, in essence, the same test? Ratio |
Section 106(3), like its predecessors, uses the phrase miscarriage of justice to identify the test which all appeals against conviction must satisfy. Ratio |
But the statutory formula does not, and never has, provided a definition of what a miscarriage of justice is in law. Ratio |
In his commentary on the Appeal Courts decision in 2008 SCCR 407, 465, para 4, Sir Gerald Gordon observed that just what is meant by a miscarriage of justice has always been a problem. Ratio |
In R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, [2005] 1 AC 1, para 9 Lord Bingham of Cornhill said that it is an expression which, although very familiar, has no settled meaning. PRE |
So the statute leaves it to the court to adapt these words to the circumstances of each case. PRE |
The formula that was used in McInnes, para 20, was designed to provide a test as to whether, in cases where it is alleged that there was a violation of the appellants article 6 Convention right, the trial was or was not fair. PRE |
As was pointed out in that paragraph, in Kelly v HM Advocate [2005] HCJAC 126, 2006 SCCR 9, para 35 Lady Cosgrove said that, if the trial was found nevertheless to have been fair, there would in consequence have been no miscarriage of justice. PRE |
The two expressions were seen by her to have, in essence, the same meaning. Ratio |
Section 3 of the Human Rights Act 1998 supports this approach. Ratio |
Section 106(3) ought to be read and given effect in a way which is compatible with the article 6 Convention right to a fair trial. Ratio |
In Coubroughs Executrix v HM Advocate [2010] HCJAC 32, 2010 SLT 755, para 47 the Appeal Court (Lords Carloway, Bonomy and Nimmo Smith) said that, if it had had to be satisfied that a miscarriage of justice had occurred in consequence of a misdirection by the trial judge, the court would have applied the test set out in... |
In this context, the court must look at whether a different verdict would have been returned by the particular jury that heard the case (McInnes v HM Advocate, Lord Hope at para 20 and para 24, Lord Brown at para 35, Lord Kerr concurring with both at para 41) rather than a hypothetical modern jury hearing all the evide... |
In Black v HM Advocate [2010] HCJAC 126, 2011 SLT 287 a differently constituted Appeal Court (Lords Osborne and Turnbull and Lady Clark of Calton) said that it had some difficulty in seeing what bearing the test in McInnes had on the matter, as that case was concerned with the consequences of non-disclosure rather than... |
Similar observations are to be found in the opinion which Lord Osborne delivered in this case: see para 220. PRE |
It is, of course, exclusively a matter for the High Court of Justiciary to identify the test that is to be applied in appeals which do not raise a devolution issue: McInnes, para 5. Ratio |
I very much hope that it may find it possible to resolve the differences of view that have emerged as to the use that may be made of the McInnes test. Ratio |
We are, after all, both construing the same words in the same section of the same Act, and we are both required to read and give effect to those words in the way that section 3(1) of the Human Rights Act 1998 directs. Ratio |
But that is not a problem that this court can solve. Ratio |
Our concern is with the approach that must be taken to this case. Ratio |
Our position on the matter is clear. Ratio |
What the McInnes test does is to provide, for the assessment of whether or not there was a fair trial for the purposes of article 6, what was lacking in the Cameron test for appeals on the ground of additional evidence: a definition of what the expression miscarriage of justice in section 106(3) of the 1995 Act means i... |
The tests applied by the Appeal Court Ratio |
Lord Osborne and Lord Johnston delivered separate opinions, but they both agreed with the Lord Justice Clerk who delivered the leading opinion and examined the circumstances of the case, as Lord Johnston said, comprehensively. Ratio |
So I shall concentrate on what he said to see whether the tests that the Appeal Court applied were sufficiently similar to those that ought to be applied to an appeal on the ground that there had been a violation of the appellants convention rights. Ratio |
The threshold test Ratio |
The Lord Justice Clerk addressed himself first to the question whether the new evidence was important evidence of such a kind and quality that it was likely to have been found by a reasonable jury, under proper directions, to have been of material assistance in their consideration of a critical issue that emerged at th... |
In para 134 he said that he was not persuaded that the proposed new evidence, if available to the defence at the trial, would in fact have been led. Ratio |
In paras 139-144 he said that the appellant had failed to provide a reasonable explanation of why the evidence of PC Lynch and WPC Clark was not led at the trial, as their names were on the list of witnesses and the defence was not deprived of any opportunity to precognosce them thoroughly about the factual allegations... |
In para 147 he said that he was not persuaded that the recollections of either of them on the point at issue could be regarded as reliable. Ratio |
In para 150 he rejected the argument that the evidence of PC Lynch and WPC Clark was incompatible with the cornerstone of the Crown case as having been based on an incomplete view of the case. Ratio |
If they had given evidence about the presence of the rings in the house on the night of 28-29 April, the advocate depute would not have committed himself to his theory about the cornerstone of the Crown case. Ratio |
It can be seen from this brief summary that it is impossible to reconcile the approach which the Appeal Court took to the threshold question that section 106 raises with the test for cases of non-disclosure in McInnes, para 19. Ratio |
The Lord Justice Clerks acknowledgement at para 150 that, if the evidence of PC Lynch and WPC Clark had been led at the trial the advocate depute would not have committed himself to his theory, makes the point. Ratio |
It is plain that this was information which might materially have weakened the Crown case as presented at the trial, or might materially have strengthened the case for the defence. Ratio |
That was why the Crown, very properly, felt that it ought to have disclosed this material. Ratio |
The situation in this case is quite different from that which will normally arise where the court is presented with an appeal on the ground of fresh evidence. Ratio |
A fresh evidence case usually proceeds on the basis that, while there was nothing wrong with the trial as it was originally conducted, there was nevertheless something missing from it which ought now to be taken into account. Ratio |
Had the material that was missing from this case been disclosed, however, the conduct of the trial by both the Crown and the defence would have quite different. Ratio |
That is why the non-disclosure in this case goes to the root of the question whether the appellant received a fair trial. Ratio |
It is no answer to the point that the material ought to have been disclosed to say that the defence had the opportunity to precognosce these witnesses. PRE |
The fact is that the Crown chose to present the case at the trial in a way that it would not have chosen to do if it had been aware at the time of the trial that there was evidence that the rings were in the house within hours of Arlenes disappearance. PRE |
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