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Nor is it an answer to say that the obligation of disclosure does not extend to precognitions in the possession of the Crown: Sinclair v HM Advocate [2005] UKPC 3; 2005 SC (PC) 28, para 28. PRE |
This is because the evidence as to the presence of the rings in the house on that night had such an obvious bearing on a crucial part of the circumstantial case against the appellant. Ratio |
It does not matter where the material was to be found. Ratio |
It was information that ought to have been given to the defence, and the failure to do this was a breach of the appellants article 6 right. Ratio |
The Crown accepted that this was so when it decided to disclose this material, and in his address to this court the learned Solicitor General did not seek to argue otherwise. Ratio |
As for the observation in para 147 that the recollections of PC Lynch and WPC Clark on the point could not be regarded as reliable, it has to borne in mind that disclosure of this material before or during the trial would have opened up lines of cross-examination that were never pursued by the defence. Ratio |
It would also have materially weakened the Crowns attack on the appellant that he had no explanation to give for bringing the rings back to the house on 7 May and the theory that he had retrieved them from Arlenes dead body. Ratio |
He would not have had to provide an explanation if, as the evidence of PC Lynch and WPC Clark suggested, the rings were in the house all along. Ratio |
Of course, the reliability of their evidence would have been called into question. Ratio |
But so too would the reliability of the evidence for the Crown, including the video that was taken during the police search of the bathroom. Ratio |
It seems to me to be plain that the threshold test, as identified in McInnes, is met in this case. Ratio |
We must therefore consider the consequences. Ratio |
The consequences test Ratio |
The Lord Justice Clerk accepted at para 152 that the correct way to proceed was to consider the additional evidence. Ratio |
But, as he had already explained at para 150, he had already decided that this was not to be done by judging its effect on the way the Crown presented its case to the jury. Ratio |
At para 161 he concluded that the circumstantial evidence alone was sufficient to entitle the jury to convict. Ratio |
At para 164 he said that the evidence of Hector Dick, if the jury believed it, transformed the Crown case as it made it much more compelling by providing directly incriminating evidence. Ratio |
At para 166 he said that, on his interpretation of the evidence, it was not essential to a conviction that the jury should accept that the appellant left the rings in the bathroom. Ratio |
At para 167 he said that, on that view of the evidence and leaving aside the speech for the Crown and the directions by the trial judge, he could not see how the proposed new evidence could be of such significance as to require the verdict to be set aside. Ratio |
He acknowledged that, although his own view was that the evidence of the return of the rings was not crucial to the Crown case, the effect of the judges direction about the events of 7 May was to make it so. Ratio |
But he said that this direction had the result of enabling the court to conclude with certainty that the jury found that the appellant put the rings in the bathroom on that day. Ratio |
This approach too cannot be reconciled with the consequences test in McInnes, paras 20 and 24. Ratio |
That test requires the court to assess the consequences of the non-disclosure in the light of what actually happened at the trial in order to determine whether what happened at the trial was unfair. Ratio |
The approach which the Appeal Court took when it was applying the Cameron test was to assess the consequences on the assumption that, had the undisclosed material been available, the trial would have been conducted differently. Ratio |
That, in itself, suggests that the trial that actually happened could be regarded as having been unfair because there was a real possibility that, taking all the circumstances of the trial into account, the jury would have arrived at a different verdict. Ratio |
One cannot, of course, avoid making some assumptions as how the trial might have been conducted if the material had been disclosed to the defence. Ratio |
It will always be a question of degree as to how far it is proper to go in carrying out that exercise. Ratio |
But the purpose of doing this is to assess the extent to which, having regard to the way the case was conducted by the Crown, the material would have weakened the Crown case or strengthened the case for the defence. Ratio |
It is on the case as presented at the trial that the court must concentrate, rather than the case as it might have been presented. Ratio |
It is not for us to speculate as to what the case might have been, much less how the jury would have reacted to it. Ratio |
What the Crown asks us to do, and what it persuaded the Appeal Court to do, was to consider the case on the basis that the discovery of the rings on 7 May was indicative of the appellants guilt for completely different reasons from those advanced at the trial. Ratio |
In effect we were being asked to deal with the case as if we were a new jury trying the case for the first time. Ratio |
This is not permissible. Ratio |
Our task is quite different but entirely clear. Ratio |
As the Appeal Court said in McCreight v H M Advocate [2009] HCJAC 69, 2009 SCCR 743, para 95, it is not the courts task to decide what the outcome of the trial would have been if the trial had been conducted on an entirely different basis. PRE |
We must ask ourselves whether, in the light of the undisclosed evidence, there is a real possibility that the jury at this trial would have arrived at a different verdict. PRE |
The proposition that the appellant had returned the rings to the bathroom on 7 May was, as the Advocate Depute said in his address to the jury, the cornerstone of the Crowns case. Ratio |
It is clear, in view of the direction that was then given to them by the trial judge, that the jury must have concluded that the appellant put the rings in the bathroom on 7 May. This was the basis for the Crowns theory that he had obtained the rings from the deceaseds dead body and had placed them in the bathroom to c... |
This theory would have been undermined by the evidence of PC Lynch and WPC Clark. Ratio |
It would have been challenged by lines of cross-examination of the Crown witnesses that were never developed at the trial, and by questions that were never put to the appellant in chief or in re-examination. Ratio |
The point could have been made that it was improbable that, if the rings were in the bathroom on 28 and 29 April when the police visited the house, the appellant would have removed them and then chosen to return them on 7 May. The theory that he removed them from the dead body would, if the evidence of PC Lynch and WPC... |
These and other arguments that the defence would have been able to develop would have struck at the heart of the case that the Crown presented. Ratio |
The trial would have been significantly different had the material that was not disclosed been available. Ratio |
There is a real possibility that this would have been sufficient to raise a reasonable doubt about the Crowns case that the appellant returned the rings to the bathroom on 7 May. If that were so, the jurys verdict would be bound in view of the trial judges direction to have been different. Ratio |
Taking all the circumstances of the trial into account, and the extent to which the way the Crown chose to present the case would have been affected by the disclosure, the conclusion that the consequences test as identified in McInnes has been satisfied seems to me to be inescapable. Ratio |
Conclusion RPC |
The question, as I have said, is whether the tests which the Appeal Court applied when it decided to dismiss this appeal as if it were a fresh evidence appeal were in essence the same as it would have had to have applied if it had entertained the argument that there had been a violation of the appellants article 6 Conv... |
For the reasons I have given, I think that this question must be answered in the negative. Ratio |
This then raises the question as to what this court should do in order to determine the appeal. Ratio |
This case has come before us as an appeal under paragraph 13 of Schedule 6 to the Scotland Act 1998. Ratio |
Rule 29(1) of the Supreme Court Rules 2009 (SI 2009/1603) provides that, in relation to an appeal, the Supreme Court has all the powers of the court below and that it may, among other things, affirm, set aside or vary any order of judgment made or given by that court: see rule 29(1)(a). STA |
Section 118 of the Criminal Procedure (Scotland) Act 1995 provides, among other things, that the High Court of Justiciary may dispose of a conviction by setting aside the verdict of the trial court and quashing the conviction and granting authority to bring a new prosecution in accordance with section 119 of the Act: s... |
The effect of rule 29(1) is that these powers are available to this court too if, having considered the devolution issue, it is satisfied that the answer to it must be that there was a miscarriage of justice in the proceedings in which the appellant was convicted. Ratio |
For the reasons I have given I would hold, applying the McInnes test, that there was a miscarriage of justice at the appellants trial and that the appeal must be allowed. RPC |
I would, however, remit the question whether authority should be granted to bring a new prosecution under section 119 of the Criminal Procedure (Scotland) Act 1995 for determination by the High Court of Justiciary. RPC |
As it is its practice not to quash a conviction until consideration has been given to the question whether there should be a retrial, I would remit the case to a differently constituted appeal court to determine that question and, having done so, to quash the conviction. RPC |
I very much regret any further delay that this decision may lead to in the final disposal of the case. RPC |
I regret too the distress that it will cause to Arlene Frasers relatives, who were present in court throughout the hearing of the appeal. RPC |
But it has to be recognised that the appellant was entitled to a fair trial. RPC |
Any unfairness at the trial may be put right at the stage of an appeal. RPC |
But for that to be achieved the right tests must be applied, so that the appeal too is fair. RPC |
The conclusion that I would reach as to what these tests lead to leaves us with no alternative but to make the orders which I have proposed. RPC |
I have read Lord Hopes judgment and gratefully adopt his account of the facts and the particular circumstances in which this appeal arises. Ratio |
I recognise, of course, as Lord Hope more than once points out, that there is no appeal against the High Court of Justiciary in Scotland in respect of criminal matters and that this courts jurisdiction is limited to consideration of devolution issues only. Ratio |
So far as devolution issues are concerned, however, we have no option but to exercise our jurisdiction and, as again Lord Hope points out, a devolution issue clearly does arise here. Ratio |
Really there can be no doubt that the prosecutor was under a duty to disclose to the defence PC Lynchs precognition of 3 July 2002 (stating that he had seen the rings during the night of 28/29 April 1998) as, indeed, the Advocate Depute plainly would have done had he himself been aware of it. Ratio |
On any possible view of the facts, that precognition was material which might have materially weakened the Crown case or materially strengthened the case of the defence see McInnes v HM Advocate 2010 SLT 266 at paras 19, 28 (and 29) and 39. Ratio |
The accuseds article 6 Convention rights were therefore infringed. Ratio |
The critical question for the Appeal Court was therefore whether, in the result, the trial had been unfair. Ratio |
(It is, of course, clearly established on the cases that not every article 6 failure to disclose disclosable material automatically results in an unfair trial.) As to this, the test of such unfairness is that now authoritatively laid down by this Court in McInnes in short whether, taking into account all the circumstan... |
Is this the same test as the Appeal Court in fact applied here, treating the case as they did as a fresh evidence appeal under section 106 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act)? To this question there can only be one answer: clearly it is not, for all the reasons given by Lord Hope at paras 27-38... |
As Lord Hope observes at para 29, it is exclusively a matter for the High Court of Justiciary what test to apply in appeals which do not raise a devolution issue. Ratio |
As, however, that paragraph also suggests, it would be somewhat bizarre to apply different tests in deciding whether or not there has been a miscarriage of justice depending on whether the Appeal Court is concerned with undisclosed material which should have been disclosed (a devolution issue) or with fresh evidence (n... |
As I indicated in McInnes (at paras 36 and 37), the test, which is ultimately one for the Appeal Court, is logically the same for fresh evidence appeals as for those involving undisclosed statements. Ratio |
Lest it be suggested that undisclosed statements imply fault on the part of the prosecution (arguably, therefore, calling for a lower test to be applied to whether there has been a miscarriage of justice) whereas fresh evidence may not, I would point out that many fresh evidence cases operate at the very least to expos... |
Of course, the route by which the court arrives at the question has there been a miscarriage of justice? differs depending on whether the appeal is brought on undisclosed material or on fresh evidence grounds. Ratio |
As explained in McInnes, the intermediate (article 6) issue arising in any undisclosed material case is: did the non-disclosure make the trial unfair? In a fresh evidence case, by contrast, the appellant must first establish not merely that the fresh evidence is important and reliable but also that there is a reasonabl... |
But ultimately they raise the same question as is raised by the undisclosed material cases. Ratio |
So the McInnes test is, I suggest, equally applicable to both. Ratio |
As I have observed, the McInnes test whether the relevant fresh material, if adduced at trial, might reasonably have affected the decision of the trial jury is one for the Appeal Court. Ratio |
That statement, however, needs this qualification: in certain rare cases the fresh evidence (or, as the case may be, undisclosed statement) will be of such overwhelming overall import as to make it inappropriate for the Appeal Court simply to add it to the original evidence and ask itself whether the jury might still r... |
Instead, in such cases, the Appeal Court will have no alternative but to conclude that there has been a miscarriage of justice, and then decide simply whether or not to order a retrial. Ratio |
Such indeed was the conclusion of the Board in Bain v The Queen [2007] UKPC 33 (referred to at para 36 of my judgment in McInnes) given the dramatically different state of the evidence on all the key factual questions in the case at the conclusion of the appeal hearing compared to how they had been presented to the jur... |
Perhaps more directly relevant to the present case, however, this was precisely the decision reached by the Appeal Court in McCreight to which I have already briefly referred. Ratio |
McCreight concerned a murder appeal brought in the light of fresh expert evidence. Ratio |
The victim had died from chloroform and the appellant was convicted specifically on the basis that he had held a chloroformed rag over her face, her death having been caused by the inhalation, not the ingestion, of chloroform. Ratio |
The fresh evidence exposed a thousand-fold error in the reporting of one particular test originally relied upon and, put shortly, established that death by ingestion alone could no longer be excluded. Ratio |
The Appeal Court rejected the Crowns case that it mattered not which way the chloroform entered the deceaseds body and held that, had the fresh evidence been known at the time, the whole trial would have been conducted entirely differently. Ratio |
In such circumstances, said the court: It is not our task to decide what the outcome of the trial would have been: in a case such as this, that would involve fruitless speculation. Ratio |
Amongst the authorities considered by the Appeal Court in McCreight was, it may be noted, that of the Lord Justice Clerk in the present case. Ratio |
For my part I found the commentary on the case (at p 777 of the report) of assistance: It might be thought that this report is more suitable for publication in a medical journal than in a set of law reports, but although its content is largely medical or scientific and it depends to a large extent on its rather special... |
.. That is to say, the fresh evidence was such that the court could not simply add it to the original evidence and ask itself whether the jury would still have convicted. Ratio |
It was not even such that it could be said that if it had been led at the trial the approach of the Crown would have taken account of it, and that the evidence as a whole would still have led the jury to convict. Ratio |
The case does not depend on the terms of the advocate deputes speech or even of the judges charge to the jury. Ratio |
It depends on the more fundamental consideration that the fresh evidence was so overwhelming that it would have affected the whole way in which the trial was conducted. Ratio |
The problem for the Crown was not the approach of the trial depute, but the terms of the indictment, which referred exclusively to inhalation . . .. The resultant miscarriage of justice might be described as the failure to provide the accused with a trial based on the true position, and in that situation it seems that ... |
That is an extreme situation unlikely to happen very often, and there are also very few cases in which the original expert evidence is so egregious or at least one hopes so. Ratio |
For the reasons given earlier, we have no alternative but to allow this appeal: the Appeal Court applied the wrong test. RPC |
Left to myself, however, I should have been inclined to remit the whole matter to that court for reconsideration, leaving it to them to decide, first, whether, in the light of McCreight, PC Lynchs statement is of such overwhelming significance and would have had so fundamental an impact on the whole course of the trial... |
In saying that, I am influenced by what I regard as the great strength of the Crowns evidence as a whole against the appellant. Ratio |
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