Tag Archives: High Court

Salmond v Hope – Next Chapter

Following on from the recent attacks by the First Minister and his Justice Secretary on the UK Supreme Court, and particularly Lord Hope, the Deputy President of the court, there was a feeling that matters might have slightly cooled, especially with the creation of Mr Salmond’s “stellar” panel to consider the whole matter of the UKSC’s involvement with Scots Law.

Not so!

Today’s Scotsman has the following article, http://bit.ly/lgVLTE based on an interview in Holyrood magazine http://bit.ly/lvd4Ej.

In it Mr Salmond makes a number of remarkable comments. He is clearly raising the stakes in his dispute with the UKSC. He seems, to this observer’s eyes, to be basing his arguments against the role of the UKSC in Scots Law (and there is clearly a debate to be had there) on a personal attack upon Lord Hope and an attempt, it seems, to politicise the matter in to a Scotland v England issue.

Whilst matters started, as mentioned below, with the question of whether or not the UKSC had a role in Scottish criminal law, the battle ground envisaged  by Mr Salmond is clearly much wider,a nd the goal nothing less that the removal of the UKSC from involvement in any Scottish cases, whether criminal or civil.

Political considerations are clearly at play here for the First Minister, and the result of a case presently proceeding before the UKSC may well cause the furore to escalate exponentially, depending on the outcome.

 

The recent fuss started following the decision of the UKSC to tell the High Court to quash the conviction of Nat Fraser for murder.

 

“The FM reacted with surprising fury, lashing out at a London-based court that he said was ‘second guessing’ Scotland’s justice system and had ‘no role’ to play here.”

As wiser people than me have said, this was not a fair characterisation of the UKSC decision. The judges saw a clear breach of Mr Fraser’s rights and saw that the High Court had asked itself the wrong question in deciding the appeal itself. It seemed, from a legal point of view anyway, a bad case to be planting the standard of Scots Law independence upon, as the whole appeal arose from a failure by the prosecution to disclose potentially relevant, and indeed vital, evidence to the defence, leading to the trial probably having been conducted in a very different manner by both Crown and defence if disclosure had taken place.

Just before that Mr Salmond had correctly defended Scots Law in the CTB injunction case, pointing out that the English High Court jurisdiction did not extend past the border.

It seemed clear that Mr Salmond, following his election triumph, felt that the law was a good issue to identify as one where “England” was interfering with Scotland.

Now, he cannot be criticised for trying to make political capital from a situation – that is the bread and butter of politics, but there ought to be a proper basis for the politicking.

Mr Salmond, as he said, felt that the UKSC had “no role” to play in Scottish criminal cases. The clear implication for his “stellar” panel is that they are to recommend changes – Mr Salmond is clearly not looking for a report which maintains the status quo.

Should the panel not recommend change acceptable to Mr Salmond, will he let the matter lie, or, as he is constitutionally entitled to, will he continue to seek UK legislation to change the UKSC jurisdiction anyway?

I am sure Mr Salmond has not considered that, in political terms, it might appear electorally advantageous if the Scottish Government insisted on changes to the UKSC jurisdiction, which changes were not acceded to by the Westminster coalition. I am sure he has given no thought to how that might play in terms of a forthcoming referendum on Scottish independence as example of Scotland’s will being thwarted by “London”.

 

Lord Hope was accused by Mr Salmond of  “routinely interfering in criminal appeals in Scotland”.

Coupled with the reference by the Justice Secretary to “ambulance chasers” this suggests that Lord Hope has taken to pursuing vigorously any chance he has to get his nose stuck in to the Scottish criminal justice system. That, on any analysis of the actual cases, is not the case.

Very few Scottish appeals in criminal matters make it to the UKSC, or to the Privy Council, as was. In general the appellant has lost. The court has had a number of opportunities to interfere, if it so wished. These have not been taken, and where the UKSC has decided differently from the wishes of the Scottish Government, the judgements seem based on a detailed examination of the law. People might disagree about the interpretation, but it can’t be said that the UKSC is “shoe horning” itself into matters in the manner, for example, of its USA namesake.

 

As an aside at this point, Mr Salmond goes on in his Holyrood interview to comment regarding the Scotsman as follows:-

“Even if I was the most pronounced unionist in the world and thought the whole idea of Scotland was a silly historical aberration and thought that the Scottish justice system was the worst legal system in the world, if I was editing the Scotsman newspaper, then I would still ask myself ‘why would anyone buy my newspaper rather than buying a rather better alternative’ and they might do it because I have a unique insight and support for the Scottish dimension and hopefully, once you have that, you get better journalists and better writers but what I don’t understand is that the editor sees circulation going down and down and yet the response is to publish more and more of this stuff.”

That part of the interview does not seem, from what I have read, to have made it in to the Scotsman!

 

Mr Salmond went on:-

“The right thing to do and what the Cabinet chose to do was … to establish a review group of extraordinary prestige, even if I may say so, of more prestige even than Lord Hope, to look at the thing and come up with some recommendations that the Parliament can then debate.”

It is an interesting academic question as to the respective merits of the “stellar” panel as against Lord Hope, who is, undoubtedly, one of the finest Scottish legal minds for many a generation, but one I will pass over for now. I will also pass over the fact that none of the cases involve Lord Hope sitting alone – there is always another Scottish judge, whether Lord Rodger or presently Lord Reed, sitting along with other UK judges to make up the panel.

Mr Salmond goes on to comment that the other judges on the UKSC panel are not versed in Scots Law. They come from the other jurisdictions of the UK. Effectively, he implies, the judges are therefore a front for Lord Hope and the other Scottish judge.

However, bearing in mind that his choice, as an alternative, is to go to Strasbourg and the European Court of Human Rights, where there are no Scottish judges amongst the 47 members, this seems odd, to say the least. How is Scots Law served by having vital matters considered by a court with none of the expertise Mr Salmond considers essential?

 

“That takes it away from the personalities involved and recognises that there is an issue that needs to be properly debated and that the Parliament should have their say and then recommendations will then go to the Westminster Government which they may or may not put into the Scotland Act. That seems the correct way to approach things.”

To suggest that personalities should be taken out of the matter seems wise – however the First Minister cannot resist bringing them back in!

 

“All I would say to Lord Hope is that I probably know a wee bit about the legal system and he probably knows a wee bit about politics but politics and the law intertwine and the political consequences of Lord Hope’s judgements are extreme and when the citizens of Scotland understandably vent their fury about the prospect of some of the vilest people on the planet getting lots of money off the public purse, they don’t go chapping at Lord Hope’s door, they ask their Parliament what they are doing about it.”

This, to a lawyer or constitutionalist, seems to come to the nub of the matter.  There is a well known doctrine of the separation of powers. The executive, legislature and judiciary have separate and distinct jobs to do, and they should be allowed to get ion with them. Of course Parliament passes the laws to be applied by the courts, and can even, as part of the legislation, tell the courts how to do so, but, on a day to day basis in the UK, the courts run free of political “interference”, or at least they should. Politics and law may “intertwine” but it would be a surprise if Mr Salmond meant that, over and above the law, judges should take “politics” into consideration in deciding cases.

The politicisation of the courts is something which is far more concerning in many other countries of the world. Here, despite there having been some “political” judgements in the past, the UK courts have a reasonable record of resisting being told what to do by politicians, rather than by Acts of Parliament.

It is not a matter for the courts to assess the political consequences of their decisions. The court applies the law before it. The recent BBC documentary on the workings of the UKSC interviewed some of the Justices, including Lord Hope, and it was made clear that sometimes there were cases where, in human terms, a particular judgement should be given, but the law simply does not allow it. It is right that the courts don’t bend to whims of human sympathy if against the law they are to apply, and equally, the courts should not be badgered by politicians, no matter how eminent, into going along with them.

The implication of this is that it was down to  Lord Hope that prisoners were being paid compensation for having to endure the indignity of slopping out. Later in the piece, Mr Salmond makes clear that, in fact, the decision that damages should be paid for slopping out came from the Scottish courts, and seems to suggest therefore that there is no need for any UKSC involvement, as the Scottish Courts could fix the problem anyway. In addition, Mr Salmond is correct to point out that the Labour/Lib Dem coalition had had it made clear to them that slopping out needed to end, but that they chose to allocate funds for this elsewhere. HAving been warned, it was no surprise that the Scottish courts ultimately found against the Scottish Executive.

Instead his gripe is with the Somerville case, which was decided by the Privy Council, including Lord Hope, on the question of whether or not there was a time bar for bringing cases based on breaches of the ECHR. The court decided that, as legislation stood, there was none. There was then legislation put in place to establish a one year period for claiming. Whilst this decision meant that many claims which had been on hold were then paid out, the fact that Parliament could legislate to plug the gap suggested that, if so minded, they could have done so long before. The issue was not a novel one when decided by the Privy Council. Instead, as in the Cadder case, the Government waited to see if it had won, before bringing in the changes which it clearly thought were necessary anyway!

If Parliament, whether at Westminster or Holyrood, cannot pass legislation which is up to the job, then it is not for the courts to say “Politically we should ignore the law and decide what the Government wants!”

In connection with slopping out, it was the Scottish courts that decided that these “vile” individuals were due compensation.

It should also be noted that the Somerville case, whilst about criminals, was not a case about criminal law. Whether right or wrong, the House of Lords, and now the UKSC, has had a part to play in Scottish civil cases for many long years. It seems therefore that Mr Salmond’s complaints are designed to leave the UKSC with no role to play in Scots Law at all.

In any event, politicians all round the world have, for many years, been decrying judges when they don’t like the decisions arrived at. In other countries judges live in fear of attack or imprisonment when they “stand up to” the Government. That, thankfully, is not the case here, but it remains wrong for any party, especially the Government, to attack the court when it does not like the outcome of a case. As Mr Salmond says, the solution is not to moan about it, but to legislate.

 

Mr Salmond then goes on, in an aside, to refer to the fact that he, at least, went to the bother of being elected, unlike, by implication, Lord Hope. Mr Salmond rightly says that this counts for something. But no-one is stopping him from talking. Instead he should be basing his criticism of the UKSC, not Lord Hope on the facts, and as he himself says, not to personalise the matter but to do so properly on the issues.

If Mr Salmond wants Scotland’s Sheriffs and Judges to be elected, then perhaps the SNP manifesto ought to have said so!

 

After an attack on the distinguished Human Rights lawyer Professor Tony Kelly, which I’ll comment on later, the interview concludes with Mr Salmond’s impassioned plea about why the UKSC and especially Lord Hope are wrong, in the context of Somerville and Cadder and wider too.

“My complaint of the Privy Council is that they gave a ruling in the full knowledge that they were subjecting the Scottish Parliament and the Scottish people to an unquantifiable bill stretching back to 1999 which no jurisdiction and certainly not England, for example, which is presumably why the two English judges demurred, would accept such a position with such immediate and long vulnerability. If people make judgements in the full knowledge of what they are doing, albeit that the Privy Council thought the Scottish Parliament could sort it, either you give the Scottish Parliament the powers to correct deficiencies in its legal system without seeking by your leave from Westminster or you stop issuing edicts that are unenforceable by the Scottish Parliament.”

As mentioned, the “problem” here was with the drafting of the Scotland Act and its incorporation of the Human Rights Act in to Scots Law directly. Should there have been a time bar clause? In any event, there was not, and it took years before the legislature wised up to that fact.

It seems odd that, to some degree, Mr Salmond seems to be suggesting that the Scottish Government ought not to be required to follow the ECHR. At the same time, he is suggesting that the courts ought not to follow the law as it is framed, but instead re-interpret it in a way that suits him.

It is also surely not for the court to consider how their judgement will play in the wider world before making it?

 

In relation to Cadder, the First Minister goes on to say:-

“There seems to be a general presumption that if Cadder had gone to Strasbourg then he would have won and the court would have held against Scots law and I see no basis for that assumption. The case in February, the Thomas Judge case, was a case in point that some people assumed that the Strasbourg court would find against the Scots jury system but the judges held on both counts with the Scottish legal system. Why? Because the Strasbourg Court is not a uniform court and accepts differences in legal systems and is trying to find out if the legal system has a balance which is why I am not frightened of it. There are lots of incidences where it does that so the presumption that we would have lost on Cadder is therefore wrong headed and if you read some of the judgements, particularly by Lord Hope, you can see why it is wrong headed.”

From the man who earlier accepted that he knew a little about the law, it’s interesting to see how confident he is that Lord Hope got Cadder wrong! He also seems not to realise, or simply to ignore, that the judgements are collaborative efforts of the judges. It is not simply the vase that Lord Hope decided this case, wrote up a judgement and presented it to the fellow judges as a fait accompli. Cleary they concurred with him.

Mr Salmond makes reference to the “victory” for the UK in the Judge case in February, as opposed to the “defeat” in Cadder as showing, somehow, that the Strasbourg court is “better” at dealing with these matters for Scotland that the UKSC. But most challenges to the Scottish Government that have gone to the UKSC/Privy Council have failed.

 

So what have we, when all things are looked at here?

The First Minister, who has a vital role as Scotland’s leader, has attacked, personally and professionally, the Deputy President of the UKSC and by extension the court itself, for simply doing its job and coming out with a couple of decisions he doesn’t like.

In addition, he and his Justice Secretary have personally attacked a judge who is presently engaged in cases to which the Scottish Government is an active party! If a mere mortal did so, they would be looking at being summoned for contempt!

Presently before the UKSC is a challenge by insurance companies to the Scottish legislation granting compensation to pleural plaque sufferers. The insurers seek to have the UKSC strike down the legislation as ultra vires on the basis it breaches the insurers’ “Human Rights”. The UKSC has the power to do so.

From a political view point, if the UKSC does do so, and finds against the legislation, then what we have seen so far will seem like a storm in a teacup!

It would be entirely wrong for anyone to think that Mr Salmond would see any pleasure from such an outcome, no matter how politically advantageous it might be for the SNP, if it meant that thousands of potential claimants lost their rights to claim, and the blame for this could be laid at the door of the “English” Supreme Court.

 

 

 

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Craig Jamieson v HMA [2011] HCJAC 58

On 7 April 2010 at the High Court at Glasgow, Mr Jamieson was found guilty, after trial, on the charge of murdering his baby daughter by inflicting blunt force trauma to her head and body.

He appealed successfully in February, although the decision of the High Court comprising Lords Osborne, Eassie and Nimmo Smith has only now been published. The decision can be found at http://www.scotcourts.gov.uk/opinions/2011HCJAC58.html.

The appeal related to a technical area of law connected with the admissibility of statements alleged to have been made by the accused, and whether these were exculpatory, when they cannot be taken by the jury as evidence of anything said in them or mixed, containing material both exculpatory and incriminatory, when the defence are entitled to elicit and rely upon any part of that statement as qualifying, explaining or excusing the admission against interest.

The court referred to the decision in McCutcheon v HM Advocate 2002 SCCR 101 where a bench of 9 judges laid down the rules in regard to these matters. The Lord Justice General stated as follows:-

“Having regard to what we have said above we are of the opinion that rule 2 in Morrison is in need of correction in so far as it stated that the admissibility of evidence of a mixed statement was the same where it was led by the defence without objection from the Crown as where it was led by the Crown. It may be convenient for future reference if we restate the main rules and in so doing take account of the opinion which we have expressed. The main rules which apply are as follows. (i) It is a general rule that hearsay, that is evidence of what another person has said, is not admissible as evidence of the truth of what was said. (ii) Thus evidence of what an accused has been heard to say is, in general, not admissible in his exculpation, and accordingly the defence are not entitled to rely on it for this purpose. Such evidence can be relied on by the defence only for the purpose of proving that the statement was made, or of showing his attitude or reaction at the time when it was made, as part of the general picture which the jury have to consider. (iii) There is, however, an exception where the Crown have led evidence of a statement, part of which is capable of incriminating the accused. The defence are entitled to elicit and rely upon any part of that statement as qualifying, explaining or excusing the admission against interest.”

The court referred to Criminal Procedure, Renton & Brown where it is there said:

“It may be said that any statement which contains matter helpful to the Crown is a mixed statement, even if its intent is exculpatory, as where the accused admits to his presence at the scene of the crime only in order to set the scene for a description of how it was committed by someone else, or even if it helps the Crown only by way of discrediting other defence evidence.”

The court then, against what it called a background of settled law, expressed itself as “very surprised that the trial judge took the view that he did concerning the statements in question and gave the direction which we have narrated.” This direction treated statements which both Crown and defence considered to be mixed statements as exculpatory.

They went on to say “His decision to take that course is difficult to understand. The direction which he gave is, in our opinion, a clear misdirection relating to the evidential significance of the statements under consideration. In the course of the debate before us, as we have made clear, the Crown accepted that the direction given was erroneous, and made no attempt to defend it.”

In his report to the court the trial judge, commenting on ground of appeal 1, said this:

“It is the case that I treated the various statements made by the appellant as exculpatory. In my opinion, that is exactly what they were as in none of them did the appellant accept that he had done anything to harm Abbie. I have difficulty in understanding how it can be maintained that these statements were mixed.”

In a very strong statement for the Appeal Court the opinion goes on to say :

“In taking the view which he has expressed, we can only suppose that the trial judge has not acquainted himself with the well-known authorities to which we have just referred, which he does not mention. To take the view that he did, that to render a statement otherwise exculpatory as mixed, it is necessary to find a direct admission of guilt for some part of the res gestae of the crime alleged, is plainly erroneous.”

interestingly, despite the Crown concession that the judge had erred, the appeal was opposed on the basis that despite the error, there had been no miscarriage of justice.

However, the Appeal court had no difficulty in finding that there had been a miscarriage of justice. They said:

“First, the statements emitted by the appellant, particularly the witness statement and the police interview, constituted the comprehensive version of events given by him relating to the circumstances leading to Abbie’s death, including his denials of having caused harm to her, of which the jury was deprived. The statements also disclosed the attitude of the appellant to the baby Abbie and his happiness at her birth. Secondly, both the Crown and those defending the appellant at the trial understandably conducted the trial upon the basis that these statements were of importance and that they would be available, as evidence of the facts that they contained, to the jury. That common footing upon the basis of which the trial was conducted was destroyed by the misdirection. Thirdly, and this is a facet of the second reason mentioned above, the appellant was advised by his counsel that it was not necessary for him to give evidence because of the availability to the jury as evidence of the facts which they contained of the statements in question. The misdirection had the effect of preventing those exculpatory parts of the statements being set before the jury as vouched by the contents of the statements. Looking at all of these circumstances, we have no doubt that justice was not done so far as the appellant was concerned in the trial on account of the misdirection.”

The conviction was quashed and authority granted for a new prosecution where Mr Jamieson maintains his plea of not guilty.

 

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Hugh Mullen v HMA [2011] HCJAC 55

Another appeal to the High Court post Cadder, this time in connection with admissions made voluntarily when the accused had been charged but where he asked to speak to an officer.

The decision of the court comprising the Lord Justice Clerk, and Lords Emslie and Brodie can be found at http://www.scotcourts.gov.uk/opinions/2011HCJAC55.html.

The appellant was convicted, along with his brother, of a brutal attack amounting to attempted murder, assault to severe injury and permanent disfigurement and of robbery.

Having been detained and subsequently arrested, the appellant who was then in a police cell, asked to speak to one of the investigating officers. He then made certain admissions.

When formally interviewed regarding thew matter, and the admission, he denied having made it, and denied involvement in the attack.

The ring stolen from the victim was found in the toilet in the appellant’s cell.

He was convicted with his brother after trial and appealed.

The ground of appeal was that the evidence of the admission allegedly made by him in his cell was led by the Crown in breach of the his article 6 rights. The admission, if made, was made when the appellant had not had access to legal advice. The evidence of it was, or should have been, inadmissible. There was a miscarriage of justice.

The Crown conceded, rather to the surprise of the court, that the admission was governed by the Cadder principles, but there was, in any event, more than sufficient other evidence, excluding the admission, for the conviction to be sound.

However, the court not being bound to accept the Crown’s concession, declined to do so. The Lord Justice Clerk said “in Cadder a clear distinction was drawn between the position of a detainee who is being interviewed by the police and that of a detainee before any interview takes place . In my opinion, the Cadder principle has no application where, as in this case, the suspect elects to speak to the police before he is interviewed. In such a case his statement is not elicited by interrogation”.

In any event the evidence against the appellant was found to be overwhelming and the appeal was refused.

Lords Emslie and Brodie concurred.

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Salmond v Hope or The Supreme Court “Mess”

 

Well, what a flurry of activity we have seen, caused by the decision of the Supreme Court to find that the conviction of Nat Fraser should be quashed on the grounds of non-disclosure of information by the Crown.

Much ink has been spilt and much hot air expended since the Court pronounced its decision.

Sadly much of it has seemed, to my eyes and ears anyway, to mis-state the position, and the whole issue has been taken up for political ends.

The First Minister and his Justice Secretary have been vocal in their criticisms. References have been made to “he who pays the piper calls the tune”, “one man’s law” and “ambulance chasing”.

These seem to me entirely inappropriate for members of the executive to be firing at the judiciary.

Whilst my lectures on separation of powers were long ago, my Professor made reference then to the three sided battle between the Executive, Legislature and Judiciary, if not for superiority, at least for maintenance of their respective positions.

That analysis was, of course, in terms of a pre-devolution settlement, and it seems equally clear that the present attacks by the Scottish Executive upon the Supreme Court are a Braveheart style plea to the Scots to rise up and attain independence as can only be delivered by Mr Salmond.

It was always felt to be constitutionally “inappropriate” for the various branches of government to attack each other. The tri-partite nature meant, ideally, that each branch got on with its job without interference from the others, understanding that each had, in certain circumstances, a role to tell the others what to do.

However attacks by politicians upon judges, from a constitutional viewpoint, have always seemed to me to be problematic and potentially dangerous.

The suggestion that, in some way, Lord Hope is single handedly trying to bend Scots criminal law to his own will is preposterous and unworthy of our First Minister and his colleague.

Until the passing of the Scotland Act 1988 the House of Lords had never had a role to play in Scottish criminal law. Unlike its role as the final appeal court in civil matters, it was long settled, and indeed specifically stated, that the High Court of Justiciary formed the ultimate Appeal Court in criminal cases.

Of course the European Convention of Human Rights (ECHR) had, many years ago, laid down standards for the states signed up to the Convention to follow, and there was a long and winding road by which challenges could proceed to the European Court of Human Rights from the Scottish criminal courts, but these were very few and far between.

Devolution changed matters however. In conjunction with the Blair Government’s intention to give the ECHR direct effect in the courts of England and Wales by way of the Human Rights Act, it was also determined that the Scottish Executive had to act, at all times, in accordance with the ECHR. It was ultra vires of the Executive to act, or to fail to act, in a way that contravened the Convention (or the body of European Law enforced by the European Court of Justice).

S57 (2) of the Scotland Act states that “A member of the Scottish Executive has no power to make any subordinate legislation or to do any other act, so far as the legislation or the act is incompatible with any of the Convention rights or with Community Law.”

The Lord Advocate, who in his new incarnation remains, like “military intelligence” an oxymoron, being neither a Lord nor an Advocate, is obliged to follow the terms of s 57 (2) on the basis that the Act states that he is treated as one of the Scottish Ministers, even in respect of his role as head of the prosecution service in Scotland.

Interestingly the one exception to this arises from s 57 (3) where if the Lord Advocate acts in a prosecution in a way incompatible with the ECHR, but is compelled to do so by primary i.e. UK legislation, then such actions are not ultra vires.

In Scottish case therefore the “devolution issue” was created, which, to be frank, was always felt by practitioners to be a bit of a misnomer. Whilst the issues arose from the obligations imposed on the Scottish Executive by devolution, in the form of the Scotland Act, very few of the ones that have proceeded to the Privy Council or Supreme Court have had any “devolution” aspects to them. The cases of Martin v HMA http://bit.ly/mzmwI4   and Miller v HMA http://bit.ly/iVyfrd , decided in 2010, were classic “devolution” cases as they dealt with the legislative competence of the Scottish Parliament to increase certain penalties for road traffic offences. Most however have been in respect of alleged failures to comply with the ECHR.

Mr Salmond made great play of the fact that the procedures in respect of the Supreme Court for the other UK jurisdictions were different. That is because, in connection with ECHR issues and associated applications to the Supreme Court, the rest of the UK is covered by the Human Rights Act, whereas in Scotland the Scotland Act applies.

Anyway the Supreme Court, as it now is, was given a role in connection with this very limited range of criminal cases for Scotland. It seems generally to be accepted that any significant involvement by the Supreme Court in these matters was unlikely.

As it transpires, and on the basis my figures are correct, there have been very few “devolution issue” cases actually decided by the Privy Council/Supreme Court.

There have been, consistently, one or two cases only each year from the Scottish criminal courts which have resulted in full judgements by the Supreme Court, with high water marks of 4 in 2001 and 5 last year.

In fact since the Supreme Court came into being in 2010, there are only six reported cases from it re Scots criminal law, 2 of which were on the same point. That was the Miller and Martin case referred to above. Otherwise we have had the Fraser case, on non-disclosure by the Crown http://bit.ly/maPBhc ; McInnes v HMA, on non-disclosure by the Crown http://bit.ly/jYroOX ; Allison v HMA, on non-disclosure by the Crown (notice a theme here?) http://bit.ly/keq2AP  and Cadder v HMA re the interviewing of suspects without the opportunity for legal advice http://bit.ly/lDMtk3.

It has only been in the two most recent cases, Cadder and Fraser, that the Supreme Court (this does not take account of previous Privy Council cases prior to 2010) has seen fit to overturn the verdict of the Appeal Court in Edinburgh.

How therefore has this caused the storm which has been blowing over the last couple of weeks?

The jurisdiction of the Privy Council/Supreme Court was not extended over Scotland in an effort to create a body of UK law. In a number of cases the judges made clear that was not what they were trying to do. Lord Rodger sated in Cadder that “On this matter Strasbourg has spoken: the courts in this country have no real option but to apply the law which it has laid down.”

If a case proceeds to the European Court of Hyman Rights, the UK stands as a party thereto. Whilst there is the independence argument about whether Scotland should be free or not, as matters stand, it is the UK which ends up at the sharp end in Strasbourg. On that basis, a court with an over-riding jurisdiction to see that the ECHR is complied with across the different legal systems in the UK seems perfectly logical. There are different ways in which this can take place, but the goal seems a reasonable and fair one.

If the system was adapted so that it was made clear that the Supreme Court was considering the same limited ECHR points as from the other jurisdictions, rather than the convoluted “devolution minute” process, this might clear some of the fog which has arisen.

The route chosen by Mr. Salmond, namely that Scottish case would by-pass the Supreme Court and only be dealt with, after the Appeal Court here, by Strasbourg leaves the rather strange position that cases involving Scots law and its interaction with the ECHR would be dealt with by a court with no Scottish judges, rather than, as I have said before, two of the finest Scottish legal minds of their generation.

Could a majority of “non Scottish” judges on the Supreme Court over-rule Lords Hope and Rodger? Yes, of course they could, but from my reading of the various judgments over recent years, the non Scots have been very careful to defer to their Scottish brethren when it comes to specifically Scottish matters, whilst always paying attention to the over-arching European jurisprudence. There has been no sign, to my eyes, of these judges seeking to turn Scottish criminal law into a reflection of the English system, for example, though that was effectively one of the charges laid at the door of the court.

But, turning to the Cadder and Fraser cases, do we see signs of “ambulance chasing” and “one man’s law” at all?

If by ambulance chasing the Justice Secretary meant that the Supreme Court was rushing about looking for as many cases as possible to stick its oar in, then it is not very good at it! As has been mentioned above, the number of cases which have reached the Privy Council/Supreme Court by way of s 57 (2) is very small. The court is clearly not granting leave to any Tom, Dick or Harry who approaches it.

The accusation is made by Mr. Salmond that the Supreme Court granted leave to Mr. Fraser to appeal to it, when this had been refused by the Hugh Court. The judgment however makes clear the reasons the court had for doing so. The refusal by the High Court to receive a “devolution minute” was itself a decision in respect of a devolution minute and therefore allowed the Supreme Court to look at the matter.

Mr. Salmond was exercised by the involvement of the Supreme Court in a “run of the mill” case where no constitutional issue was engaged. However, as we have seen, the Lord Advocate cannot act contrary to the ECHR. If he does so, he acts ultra vires. In those circumstances the Supreme Court jurisdiction is engaged.

If the prosecution in Fraser had complied with the rules regarding disclosure, which are now very clear, both from the Privy Council and the High Court, then the Supreme Court would not have been involved. This is especially clear when the issue was that the Supreme Court felt that the High Court had asked itself the wrong question in the original appeal. In a number of previous non disclosure appeal, including McInnes and Allison last year, whilst there may have been non-disclosures, the Supreme Court rules that this was not serious enough to jeopardize the safety of the conviction.

In Cadder too, despite a clear decision of the High Court that the Salduz case did not have the implications for Scots Law which Mr. Cadder’s counsel sought to draw, the Supreme Court were equally clear that, on the relevant points, Scots Law did not comply with the ECHR.

Both Cadder and Fraser were very clear decisions by the Supreme Court and especially in the Fraser case indicated that a man was languishing in prison in a case, however notorious it might be, where he had not had a fair trial.

Do either of these cases show that Lord Hope is manipulating his fellow Judges to achieve his own ends? There can be no reasonable suggestion that is the case. Lord Hope would not, I am sure, claim to be infallible, but then I am equally sure that the Lord President would not argue that he might not, from time to time, be wrong. The nature of appeal courts is that lower courts can be overturned. If Lord Hope had been particularly out-spoken regarding policy maters, and these decisions fell into a coherent pattern of him pursuing such an agenda, then the question might be asked. However there is no evidence at all for that charge.

So what do we have then?

Politicians are using a cause célèbre for their own political ends, and to advance a case, in this instance independence. I, of course, am not suggesting that the gentlemen in question are speaking with anything less than 100% sincerity. However, as an observer, I can comment on what I see.

It cannot be right for the Justice Secretary to threaten to withdraw funding from the UK Supreme Court in these circumstances. Mr. Salmond refused to answer Isobel Fraser on BBC1 at the weekend when she asked what he would do if a decision came from Strasbourg that he did not like. There is no consistent response he could give to that, but sadly he also missed the chance to repudiate his Justice Secretary’s intemperate remarks, on the basis, apparently, that they had been made to the Herald about a week before publication! I think he was accusing the paper of opportunism!

The bottom line – Scots criminal law has been found to be deficient in certain important areas. This has resulted in people being incarcerated where they ought not to have been, or at least without having had a fair trial.

It does Scotland no service when the reaction to these flaws being pointed out is to attack the court doing so. The Biblical “motes and beams” come to mind. Surely the Executive would be better occupied resolving issues which have been identified by far wiser folk than me with the prosecution system in this country, rather than attacking the court which has done so.

I will later address the “solution” namely Mr. Salmond’s “stellar” panel of experts.

 

 

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Nat Fraser v HMA [2011] UKSC 24 – The Supreme Court Decides

 

 

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 [16] 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 [2005] 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 [2009] 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.

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