This case features (a) one of the most notorious criminal cases in recent Scottish legal history and (b) a most remarkable reaction to it from the SNP Executive in Holyrood.
In this post I will address the appeal, on the basis that every few minutes, it appears, an SNP spokesman, minister or source adds to the controversy. Later I will come to the ensuing mess.
The appeal was heard by the Supreme Court consisting of Lord Hope, Lord Rodger, Lord Kerr, Lord Dyson and Lord Brown. For the purposes of the ensuing arguments, it should be noted that Lords Hope and Rodger are recognized as two of the finest legal minds in Scotland in recent years, both having been elevated to the House of Lords, as was, from the position of being Lord President and Lord Justice General. Lord Kerr is a former Lord Chief Justice of Northern Ireland.
Nat Fraser 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. On 29 January 2003 he was found guilty of her murder and sentenced to life imprisonment, with a punishment part of 25 years. By a note of appeal which was lodged on 18 December 2003 he appealed against his conviction and sentence. He was granted leave to appeal.
At the trial part of the indictment stated that, in his attempt to pervert the course of justice, the accused “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”.
Whilst this charge was withdrawn before the jury retired, the prosecutor relied on the evidence regarding the rings as being of vital importance in connection with determining guilt. He invited the jury to conclude that eight or nine days after Arlene Fraser’s 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. He described the return of the rings as the cornerstone of the case against the appellant, for which he had provided no explanation.
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.
Clearly the absence of the rings from the date of Mrs. Fraser’s disappearance until their return on 7th May at the hands, it was alleged, of Mr. Fraser was critical.
During the lengthy appeal process however, it became apparent to the prosecution that one police officer, PC Lynch, had stated, before the trial, that he had seen the rings in the house on and after the date of the disappearance. On PC Lynch’s last visit, he had been accompanied by WPC Clark. This information had not been recorded in PC Lynch’s notebook and it was not included in any statement provided by him prior to the trial. It was not provided prior to or during the trial to the Advocate Depute, nor was it provided to the Mr. Fraser’s representatives. The Supreme Court stated that neither PC Lynch nor WPC Clark had been interviewed (or precognosced to use the Scottish term) by the defence in the course of their preparations for the trial. However, the decision of the High Court on the appeal, refereed to below, indicated that there had at least been instructions given by the defence solicitors to interview these officers, though it seemed to be unclear if this had been done or with what outcome.
Turning away from the appeal briefly, one might wonder what reason the defence might have had for not obtaining statements from these officers. It used to be standard practice in almost every criminal case for an investigator to attend upon police witnesses at their police station to be interviewed. This covered case from the most minor to the most serious, such as murder.
As almost every serious criminal case in Scotland is defended with the accused having the benefits of Legal Aid, the Scottish Legal Aid Board became concerned at the cost to the public purse of this procedure. Solicitors are obliged to carry out their work “with due regard to economy”. When combined with the pressure from the police to avoid officers spending time being interviewed, the practice arose whereby the prosecution would furnish the defence with copies of the Police witness statements. In recent years, and as a result of decisions of the High Court regarding the need for disclosure of the Crown case, as required by the European Convention on Human Rights (ECHR), all witness statements held by the Crown are, or should be, released to the defence who still, of course, have the right to interview witnesses, but the solicitor must be prepared top explain ands justify why they have done so. Doing so in the hope that something will turn up is not generally an acceptable reason justifying public funds being spent.
Therefore the defence solicitor will often not have witnesses interviewed where there appears to be nothing of controversy or dispute in what they are going to say. As there was no mention by PC Lynch in his statement about the rings, there was no reason for the defence to think he had seen them. Lord Gill, in his decision in the High Court, stated that these witnesses were always very important and he could see no reason why full statements would not have been obtained from them. Sometimes parties to a case see things differently from each other and from the judge however.
Both officers provided statements in 2006. Both stated that they had seen the rings on the 28th/29th April. The prosecutor, who is now a High Court Judge, Lord Turnbull, 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 Lynch’s 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. At the very least therefore the trail would have been abandoned, although a new prosecution could have been raised.
In addition to the grounds of appeal already lodged, it was submitted on Fraser’s behalf that the failure on the part of the Crown to disclose this evidence had caused a miscarriage of justice.
The appeal commenced on 13th November 2007. That day the defence sought to add additional grounds of appeal, and to lodge a “Devolution Minute”.
This latter procedure arises from the passing of the Scotland Act which brought the ECHR directly into Scots Law. The Crown must not act in a way incompatible with the ECHR. If such an allegation is made, as here in the case of evidence not having been disclosed, the Crown may have failed to permit the accused to have a fair trial, as per the Convention.
However the Court refused to allow the additional appeal grounds and the Devolution Minute to be received on the basis that they came too late in the day, that no good reason for their being lodged had been shown and that, in any event, the extant grounds of appeal allowed the points to be covered.
The appeal lodged had already included a request that the Court treat the evidence of the Police officers as “fresh evidence” which may have affected the outcome of the trial. As a result of the decision of the court re the new ground, the “non-disclosure” argument was subsumed into the “fresh evidence” ground.
After a lengthy hearing, the Court refused the appeal. Their decision can be found at http://www.scotcourts.gov.uk/opinions/2008HCJAC26.html. The Court considered the “fresh evidence” argument following the authority of Cameron v HM Advocate [1991 JC 252, at 262] which indicated that “the new evidence must be 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 the trial”.
The Court went on to say that “At that stage the appeal can succeed only if the court is satisfied that if the jury had heard the new evidence, it would have been bound to acquit; or that the new evidence is of such significance that it is reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice. Since there is a danger that fresh evidence may assume greater strength than it would have had if it had been led at the trial, it is essential that this court should assess it in the context of the whole evidence led at the trial”.
Lord Gill, presiding over the appeal, made it clear that, as far as he was concerned, and as referred to above, there was no reason why the defence had failed to discover from the officers the evidence about the rings prior to the trial.
He therefore considered that the defence would not be allowed to introduce the testimony of the officers at the appeal. Lord Gill went on to cast grave doubt on the value of the supposed new evidence and whether it was credible or reliable.
Finally, he stated that, if the evidence of the officers had come out at the trial, then the prosecution would not have staked the case upon the rings alone, but that the full spread of circumstantial evidence, of which Lord Gill had no doubt there was a sufficiency, was more than enough to justify the jury’s verdict of guilty. Indeed, he considered that the leading of the evidence of the officers at the trial regarding the rings might have actually weakened the defence case further.
The appeal was thus refused.
Formerly that would have been that, at least as far as courts in the UK were concerned. Traditionally the High Court of Justiciary is the final appeal court for Scottish criminal cases. There was no appeal to the House of Lords, as was, in criminal matters.
However, in certain limited circumstances, where a breach of the ECHR was alleged to have taken place, an appellant could seek to take the UK to the European Court of Human Rights. Some years ago the firm where I worked was involved in such an appeal. It took years to progress due to the huge numbers of cases before that court. All the while the appellant sat in gaol serving his sentence.
However, the passing of the Scotland Act created a right to appeal to the House of Lords but only on a “devolution issue”. It was felt that allowing all “Human Rights” appeal in the UK to ultimately be dealt with by the same court would allow the ECHR to be applied all across the country consistently.
Mr. Fraser sought leave to appeal to the House of Lords therefore on the basis that the refusal to allow him to lodge the Devolution Minute was itself a “devolution issue”.
This too was refused, the decision of the High Court regarding it being found at http://www.scotcourts.gov.uk/opinions/2009HCJAC27.html.
In the judgment Lord Osborne stated “We have come to the conclusion that the appellant’s application for leave to appeal to the Privy Council should be refused as incompetent. The identification of the devolution issue which, it seems, must now be deemed to have been determined, in our opinion necessarily depends upon the content of the devolution issue minute tendered and rejected on 13 November 2007. That is a necessary consequence of the observations of Lord Hope of Craighead in paragraph  of his opinion in McDonald and Others v HM Advocate. 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 the course of his appeal under section 106 of the 1995 Act, but this time before the Judicial Committee of the Privy Council. What decision they might or might not reach in any such appeal can only be a matter of conjecture at this stage. 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. 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. 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. That has not been done.”
Put shortly, the Court viewed the application to the Lords to be an attempt to appeal by the back door, and the Court was not prepared to entertain this.
Fraser sought leave then from the Supreme Court to be allowed to appeal to it and in due course this was granted, setting the scene for the appeal.
Lord Hope, issuing the main opinion of the court, as cited above, emphasized that the Supreme Court could not simply interfere in Scots criminal law. Its only function was to consider “Devolution Issues”. If the effect of an appeal to the Supreme Court was simply to have the appeal to the High Court re-heard, then the Supreme Court would not permit it. There had to be something more.
In this case however there was.
There were two reasons for the Supreme Court granting leave to appeal. First of all, refusal to allow a Devolution Minute to be lodged was clearly a devolution issue. Secondly, it appeared to the Supreme 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 receive a fair trial and that the unfairness had not been remedied by the approach taken by the Appeal Court.
Lord Hope went on to say that “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. 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. 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. 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.”
Further he said “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. 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. 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. But that is not a problem that this court can solve. Our concern is with the approach that must be taken to this case. Our position on the matter is clear. 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 in this context, by reading it in a way that is compatible with the Convention right.”
The test to be applied fell into 2 parts – the threshold test and the consequences test. Only if both were “passed” could the appeal be successful.
In respect of the threshold argument, Lord Hope summarised Lord Gill’s determination and goes on to say “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. The Lord Justice Clerk’s 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. 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. That was why the Crown, very properly, felt that it ought to have disclosed this material. 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. 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. 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. That is why the non-disclosure in this case goes to the root of the question whether the appellant received a fair trial.”
Furthermore “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. 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 Arlene’s disappearance. 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  UKPC 3; 2005 SC (PC) 28, para 28. 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. It does not matter where the material was to be found. It was information that ought to have been given to the defence, and the failure to do this was a breach of the appellant’s article 6 rights. 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.”
Finally on this point “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. It would also have materially weakened the Crown’s 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 Arlene’s dead body. 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. Of course, the reliability of their evidence would have been called into question. 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.”
This meant that the first part of the test was satisfied.
Lord Hope then addressed the “consequences” test.
He stated “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. It will always be a question of degree as to how far it is proper to go in carrying out that exercise. 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. 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. 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. 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 appellant’s guilt for completely different reasons from those advanced at the trial. 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. This is not permissible. Our task is quite different but entirely clear. As the Appeal Court said in McCreight v H M Advocate  HCJAC 69, 2009 SCCR 743, para 95, it is not the court’s task to decide what the outcome of the trial would have been if the trial had been conducted on an entirely different basis. 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.”
He went on to say “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 Crown’s case. 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 Crown’s theory that he had obtained the rings from the deceased’s dead body and had placed them in the bathroom to create the impression that she had left the matrimonial home with the intention of turning her back on the life that she had had there. This theory would have been undermined by the evidence of PC Lynch and WPC Clark. 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. 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 Clark were to be accepted, have been untenable. 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. The trial would have been significantly different had the material that was not disclosed been available. There is a real possibility that this would have been sufficient to raise a reasonable doubt about the Crown’s case that the appellant returned the rings to the bathroom on 7 May. If that were so, the jury’s verdict would be bound in view of the trial judge’s direction to have been different.”
He then went on to consider the following “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 appellant’s article 6 Convention rights. For the reasons I have given, I think that this question must be answered in the negative.”
Accordingly the conviction could not stand. As it was not for the Supreme Court to deal with a decision about a new trial, should the Crown seek one, as this was not a “Devolution Issue” he proposed that the matter be referred back to the High Court to deal with any such application and then, having done so, to quash the conviction.
Lord Brown, whilst not formally dissenting, indicated that he alone would have reached a slightly different conclusion. He stated that “For the reasons given earlier, we have no alternative but to allow this appeal: the Appeal Court applied the wrong test. 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 Lynch’s statement is of such overwhelming significance and would have had so fundamental an impact on the whole course of the trial that it is simply not open to the Appeal Court to decide what the outcome of the trial might have been; secondly, assuming that the Appeal Court concluded that PC Lynch’s statement was not of such overwhelming significance as that, whether nonetheless, applying the McInnes test, 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. In saying that, I am influenced by what I regard as the great strength of the Crown’s evidence as a whole against the appellant. Indeed, there seems to me force in the Appeal Court’s own view that the Crown’s case is logically stronger still in the light of PC Lynch’s statement than without it.”
What therefore did we have here?
As Lord Hope pointed out, vital evidence in the hands of the Crown was not disclosed to the defence with a dramatic effect on how the trial proceeded. Lord Turnbull, as he now is, indicated that this evidence was so important that, if it had come out at the trial, it would have had to fall.
Lord Hope pointed out that it was wrong of the Appeal Court to speculate about what might have gone on in the hypothetical trial where this evidence was given.
Standing the emphasis placed on the rings by both prosecution and judge, such evidence as this coming out later, having been known to the Crown before the trial, must be assessed as likely to have been of substantial effect.
Mr. Fraser has languished in prison since his conviction but, as matters stand, he will shortly be an innocent man again in the eyes of the law. If the court agrees to allow a new prosecution (and I suspect it will) would Mr. Fraser be granted bail pending such a trial? As matters now stand regarding bail, I think it highly likely he would be released on bail. Clearly if there is no new trial, he will be released as an innocent man and if so, the Scottish Executive will require to get ready to write him a very large cheque for his wrongful conviction.
It seems bizarre that the Appeal Court, made up of three eminent judges, could have asked itself the wrong question, as determined by the Supreme Court. However, it did.
As the Supreme Court said, it was deeply regrettable that there would be further delay and anguish for the family of Mrs. Fraser. But it was the fault (a) of the Crown for not disclosing the information it had and (b) the Appeal Court refusing to consider the “Devolution Minute” that brings us here.
Whatever way one looks at the Fraser case, it is a sad reflection on the Scottish criminal justice system, at a point when there are ever more criticisms thereof.
But that is for another day.
NB all emphases added.