Macklin v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Gill |
| Judgment Date | 16 December 2015 |
| Neutral Citation | [2015] UKSC 77,2016 SCCR 119 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 3 |
| Date | 16 December 2015 |
[2015] UKSC 77
Lord Neuberger, President
Lady Hale, Deputy President
Lord Sumption
Lord Reed
Lord Hughes
Lord Toulson
Lord Gill (Scotland)
Appellant
Gordon Jackson QC
Gerard Considine (Instructed by Fitzpatrick & Co)
Respondent
Andrew Brown QC
Angela Gray (Instructed by Appeals Unit, Crown Office)
(with whom Lord Neuberger, Lady Hale, Lord Sumption, Lord Hughes and Lord Toulson agree)
The appellant, Paul Macklin, was convicted after trial on 26 September 2003 of a charge of possession of a handgun in contravention of section 17 of the Firearms Act 1968, and a further charge of assaulting two police officers by repeatedly presenting the handgun at them. The only issue in dispute at his trial was whether he was the person who had been pursued by the officers after an incident to which they had been called, and during that pursuit had turned repeatedly and pointed the gun at them. At the trial, the appellant was identified by both of the officers. One gave evidence implying that he recognised the appellant at the time of the incident. The other had identified the appellant from a selection of photographs shown to him after the incident. Their evidence was challenged at the trial in cross-examination by counsel for the appellant, and in counsel's address to the jury. In his directions to the jury, the judge warned them about the risk that visual identification evidence might be unreliable. In accordance with the practice at the time, he gave no directions specifically concerning the risks which might be associated with the identification of an accused person in court.
Some years later, following developments in practice in relation to the disclosure of unused material, the Crown disclosed to the appellant a quantity of material which had not been disclosed at the time of the trial. This included statements given to the police by a number of witnesses who had seen part of the pursuit of the gunman by the officers, or had seen the car in which he escaped. One of those witnesses was recorded as giving a description of the gunman which was inconsistent with the appearance of the appellant. Two other witnesses were recorded as having failed to identify the appellant when shown his photograph. It was also disclosed that the police had found fingerprints belonging to someone other than the appellant inside the car, and that the person identified by the fingerprints had a criminal record.
In the light of these disclosures, in 2012 the appellant was granted leave to appeal against his conviction on three grounds. The first ground was based on the Crown's failure to disclose material evidence to the defence. The second ground was based on the Crown's leading and relying on the evidence of dock identifications by the police officers, without the other material evidence having been disclosed, and without the officers having previously participated in an identification parade. The third ground was based on a contention that the judge had misdirected the jury in relation to the identification evidence, in that he had failed to warn the jury in relation to the dangers of dock identification evidence, particularly where no identification parade had been held. The first and second of these grounds of appeal raised devolution issues, as defined in paragraph 1 of Schedule 6 to the Scotland Act 1998 ("the 1998 Act"). In other words, it was contended that, in the respects identified in those grounds of appeal, the Lord Advocate, who was a member of the Scottish Government and the person responsible for the conduct of the prosecution, had acted in a manner which was incompatible with the appellant's Convention rights under article 6(1) of the European Convention on Human Rights.
On 11 September 2013 the High Court of Justiciary refused the appeal, for reasons which were explained in an opinion delivered by Lord Mackay of Drumadoon: [2013] HCJAC 80; 2013 SCCR 616. The appellant was subsequently granted permission to appeal to this court under section 288AA of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), inserted by section 36 of the Scotland Act 2012 ("the 2012 Act").
It is important to understand the nature of the jurisdiction exercised by this court under section 288AA of the 1995 Act. The court does not sit as a criminal appeal court exercising a general power of review.
Subject to a small number of specified exceptions, every interlocutor and sentence pronounced by the High Court in appeals in solemn proceedings is, by statute, final and conclusive and not subject to review by any court whatsoever: 1995 Act, section 124(2). One exception enables the High Court to review its own decisions on references by the Scottish Criminal Cases Review Commission. The other exceptions enable this court to determine compatibility issues (an expression which I shall explain shortly) on references under section 288ZB of the 1995 Act (inserted by section 35 of the 2012 Act) and appeals under section 288AA, and to determine devolution issues on appeals under paragraph 13(a) of Schedule 6 to the 1998 Act.
The concept of a compatibility issue was introduced by section 34 of the 2012 Act, which inserted a new section 288ZA into the 1995 Act. That section defines a compatibility issue as a question arising in criminal proceedings as to whether a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or in a way which is incompatible with EU law, or whether an Act of the Scottish Parliament or any provision of such an Act is incompatible with any of the Convention rights or with EU law. Section 36(4) of the 2012 Act amended the definition of devolution issues in paragraph 1 of Schedule 6 to the 1998 Act so as to exclude compatibility issues from its scope.
One consequence of these provisions is that some questions which fell within the definition of devolution issues before the 2012 Act came into force no longer fall within that definition, but fall instead within the definition of compatibility issues. Another consequence is that some questions which, before the 2012 Act came into force, did not fall within the definition of devolution issues, now fall within the definition of compatibility issues.
The present case illustrates the point. As I have explained, the first and second grounds of appeal before the High Court raised questions as to the compatibility of the conduct of the prosecution with the appellant's Convention rights. Under the 1998 Act as it stood prior to amendment by the 2012 Act, those questions constituted devolution issues. Under section 288ZA of the 1995 Act, on the other hand, those questions would be classified as compatibility issues. The appellant's third ground of appeal, concerning an alleged misdirection by the trial judge, did not raise a devolution issue, since the trial judge was not a member of the Scottish Government. Under the provisions introduced by the 2012 Act, on the other hand, a direction by a judge may raise a compatibility issue, if there is a question whether the judge has acted in a way which was incompatible with the appellant's Convention rights.
In order to address potential problems arising from the differences between the system operating before the 2012 Act came into force and the system operating afterwards, transitional provisions were introduced by the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (SSI 2013/7). Article 2 of the Order introduced the concept of a convertible devolution issue, defined as a question arising in criminal proceedings before the relevant date which (a) is a devolution issue, (b) would have been a compatibility issue had it arisen on or after that date and (c) had not been finally determined before the relevant date. The relevant date was 22 April 2013, when the relevant provisions of the 2012 Act came into force. As at that date, the devolution issues raised by the appellant's first and second grounds of appeal had not been finally determined. As I have explained, those issues would have been compatibility issues had they arisen on or after that date. It follows that those questions are convertible devolution issues. By virtue of article 3 of the order, convertible devolution issue became compatibility issues on the relevant date (subject to exceptions which do not apply in the present case). The questions raised by the appellant as to the compatibility of the conduct of the prosecution with his Convention rights are therefore compatibility issues. No compatibility issue arises, however, in relation to the directions given by the trial judge, since his directions did not give rise to a devolution issue, and therefore did not give rise to a convertible devolution issue.
Finally, in relation to jurisdiction, it is important to understand the limited nature of this court's powers on an appeal for the purpose of determining a compatibility issue. In terms of section 288AA(2) of the 1995 Act, the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue, that is to say, in the present case, the question whether the Lord Advocate has acted in a way which is made unlawful by section 6(1) of the Human Rights Act. When it has determined the compatibility issue, the Supreme Court must remit the proceedings to the High Court: section 288AA(3).
The compatibility issue raised in the present appeal concerns the question whether the Crown acted incompatibly with the appellant's Convention rights under article 6(1) by failing to disclose material evidence to the...
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