Criminal law in the Supreme Court

The judgments in the first two Scottish criminal cases decided by the Supreme Court were delivered in February.

Allison v HMA [2010] UKSC 6 was an appeal where the Crown had not (at the time of the trial) disclosed to the appellant and his legal team that a police interviewee (where the interview was introduced as evidence after his death) had a number of previous convictions and outstanding charges. The information was disclosed during the appeal to the Court of Criminal Appeal and the appellant argued that the failure to dislcose had deprived him of his right to a fair hearing under Article 6 of the European Convention on Human Rights. After a procedural problem (where the appellant had not raised the devolution issue in the appropriate way and leave to appeal was denied by the High Court) the Privy Council had granted leave to appeal and the procedural issues were not considered further before the Supreme Court.

In its decision the High Court had stated,

"We consider that, in this context, a distinction has to be made between previous convictions and outstanding cases. While, in appropriate circumstances, the existence of previous convictions may be of importance in connection with the preparation of a defence and to the challenge that may be mounted to the credibility of a witness, we do not consider that the same may be said of outstanding cases. Where an individual is charged with crime, he or she is presumed to be innocent until proved guilty. If a case is outstanding, necessarily no verdict has been reached in it. In these circumstances we have insuperable difficulty in understanding how information relating to those matters could be properly deployed in the conduct of a defence."

Lord Rodger who delivered the leading judgment dealt with this in strong terms.

"Previous generations of Scots lawyers and judges do not appear to have experienced the same “insuperable difficulty” as the appeal court." (para [8])

"The Privy Council’s decision in Holland, 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. To judge from the passage quoted in para 7 above, the 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." (para [10])

The Crown did not support the view of the Court of Criminal Appeal, and the only issue to be resolved was then whether the failure to disclose had made a significant difference to the decision. It was held that there had been no significant difference and consequently no miscarriage of justice. The appeal was dismissed.

McInnes v HMA [2010] UKSC 7 also involved the duty of disclosure. The appellant was convicted before the Crown generally made police statements available to the defence. His appeal was based on the non-disclosure of witness statements following an identification parade. The High Court had held that there was no miscarriage of justice. For the appellant it had been submitted that the proper question was not whether disclosure of the police statements would have made a difference to the outcome of the trial but whether it might have made a difference:  [2008] HCJAC 53, 2009 JC 6, para 15. The appeal court rejected this argument asking whether there was a real risk of prejudice: para 20. The case was appealed.

Within the judgment Lord Hope comments on the general scope of the appellate jurisdiction of the Supreme Court. He notes,

"Devolution issues as defined in para 1 of Schedule 6 to the Scotland Act 1998 mean questions about the legislative competence of the Scottish Parliament and the exercise or non-exercise of functions by members of the Scottish Executive. They do not extend to things that are done or not done by the courts. As I said in Robertson v Higson [2006] UKPC D2, 2006 SC(PC) 22, para 5, however, it can be taken to be well settled that it is open to the Supreme Court to determine under para 13 of Schedule 6 to the Scotland Act 1998 not only the devolution issue itself but also questions which are preliminary to and consequential upon the determination of that issue: see also Mills v HM Advocate [2002] UKPC D2, 2003 SC (PC) 1, para 34. The question of remedy forms part of the devolution issue. So too does the test that is to be applied in determining whether the appellant is entitled to that remedy.

"In some cases these questions will give rise to no special features of Scots criminal law or practice. In others, as in this case, the reverse will be true. That does not mean that it is not open to this Court to determine the question. But we must 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, and that when we are dealing with questions of this kind it is the law of Scotland that must be applied: see Montgomery v HM Advocate [2000] UKPC D2, 2001 SC (PC) 1, pp 12, 13; Robertson v Higson, paras 5, 6. In Spiers v Ruddy [2007] UKPC D2, 2009 SC (PC) 1, para 16 Lord Bingham of Cornhill referred to the need for reticence, given the Board’s restricted role in deciding devolution issues. It is not for this Court to comment on the test that is applied in fresh evidence appeals which do not raise a devolution issue. Its task is to identify the test where the complaint is of nondisclosure in violation of the article 6(1) right to a fair trial." (paras [4] and [5])

 The leading judgment of Lord Hope considers the test for the consequences of non-disclosure and concludes that,

"The question which lies at the heart of it is one of fairness. 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." (para [24])

The cases are considered in two blog posts on the UKSC blog by Aidan O'Neill QC. He comments on the substance of the decision and on the constitutional importance. In this latter post Mr O'Neill suggests that "that there are few if any criminal cases in Scotland in respect of which the London based court may claim jurisdiction and pronounce a remedy, whether affirming, modifying or overturning the decision of the Scottish criminal appeal court, whether on an accused’s appeal or that of the Crown." and concludes

"The intellectual calibre and experience in the criminal law of Scotland of the two Scottish Justices (Lord Hope and Lord Rodger) who currently sit on the UK Supreme Court is unrivalled.  But what has now been crafted is an institutional change which opens up Scottish criminal law and procedure to external scrutiny by non-Scots who will form the majority in most appeal to London.  This will inevitably lead to pressure for greater harmonization as between Scotland and the rest of the United Kingdom.   It is not self-evident that this should be a matter for any great regret."