McInnes v HM Advocate

JurisdictionScotland
JudgeLORD HOPE,LORD RODGER,LORD WALKER,LORD BROWN,LORD KERR
Judgment Date10 February 2010
Neutral Citation[2010] UKSC 7
CourtSupreme Court (Scotland)
Docket NumberNo 3
Date10 February 2010
McInnes
(Appellant)
and
Her Majesty's Advocate
(Respondent) (Scotland)

[2010] UKSC 7

before

Lord Hope, Deputy President

Lord Rodger

Lord Walker

Lord Brown

Lord Kerr

THE SUPREME COURT

Hilary Term

On appeal from: 2008 HCJAC 53

Appellant

John Carroll

Moira MacKenzie

(Instructed by McClure Collins Solicitors)

Respondent

Paul McBride QC

Gordon Balfour

(Instructed by Crown Office and Procurator Fiscal Service)

2nd Respondent & Intervener

The Baron Davidson of Glen Clova QC

Mark Lindsay

(Instructed by Office of the Solicitor to the Advocate General for Scotland)

LORD HOPE
1

The law as to the duty of disclosure is now reasonably well settled. The Lord Advocate accepts that article 6(1) of the European Convention on Human Rights requires that the Crown disclose to the defence any material of which it is aware which would tend either to materially weaken the Crown case or materially strengthen the case for the defence: McLeod v HM Advocate (No. 2) 1998 JC 67, 79F-G, 80E-F; Holland v HM Advocate [2005] UKPC D1, 2005 1 SC (PC) 3, para 64; Sinclair v HM Advocate [2005] UKPC D2, 2005 1 SC (PC) 28, paras 28, 33; McDonald v HM Advocate [2008] UKPC 46, 2008 SLT 993, para 50; Allison v HM Advocate [2010] UKSC 6, para 25. It follows, applying this principle, that all police statements as a class must be disclosed to the accused: HM Advocate v Murtagh [2009] UKPC 36, 2009 SLT 1060 para 17.

2

The appellant, Paul McInnes, went to trial in December 2001 and was convicted before it had become the practice of the Crown Office to make police statements available to the defence. Statements made to the police by a Crown witness named Brian Pearce, including statements which he made after attending two identification parades, were not disclosed. In the light of what was decided in the cases of Holland and Sinclair the Scottish Criminal Cases Review Commission decided to refer this case to the High Court of Justiciary under section 194B of the Criminal Procedure (Scotland) Act 1995. The appellant then lodged grounds of appeal in which he submitted that his conviction amounted to a miscarriage of justice. One of his grounds of appeal was that there had been a misdirection by the trial judge, but it was not insisted upon at the hearing of the appeal. The other, which was insisted upon, was directed to the issue of disclosure. A minute was also lodged in which it was contended that the reference gave rise to a devolution issue, in that there had been a failure by the Crown to disclose information that would have been of material assistance to the defence.

3

The appeal court held that the failure to disclose Pearce's police statements did not give rise to the appellant being denied a fair trial or, in so far as the question might be different, mean that there had been a miscarriage of justice: [2008] HCJAC 53, 2009 JC 6, para 22. For the appellant it had been submitted that the proper question was not whether disclosure of the police statements would have made a difference to the outcome of the trial but whether it might have made a difference: para 15. The appeal court rejected this argument. The test which it applied was whether there was a real risk of prejudice: para 20. The appellant applied for leave to appeal against the determination of the devolution issue to the Judicial Committee of the Privy Council. The question which he sought to raise was whether the appeal court had applied the correct test. On 29 January 2009 the appeal court granted leave to appeal. On 1 October 2009 the devolution jurisdiction of the Judicial Committee was transferred to this Court by section 40 of and Schedule 9 to the Constitutional Reform Act 2005.

4

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

5

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

6

To set the question before this court into its proper context I must now describe the facts of the case in more detail.

The statements

7

The appellant, with two others, was convicted after trial in the High Court of Justiciary at Glasgow of assaulting Brian James Sweeney to his severe injury, permanent impairment and the danger of his life and of his attempted murder. He was sentenced to eight years imprisonment. The incident that gave rise to his conviction took place outside a hotel in Duntocher, Dunbartonshire. A fight broke out on the dance floor and stewards ejected various persons, including the appellant, his two co-accused and the complainer, from the premises. As soon as he was outside the hotel the complainer was struck on the head and brought to the ground, where he was set upon by a number of individuals. The crucial issue at the trial was the identity of those individuals.

8

The complainer had no recollection of the events which led to the assault upon him. The case against the appellant rested on the evidence of two stewards, Craig McKernan and Brian Pearce. The argument for the appellant was directed solely to the non-disclosure of police statements relevant to Pearce's evidence. Pearce gave a statement to the police within a few hours of the incident. In that statement he identified one of the co-accused as an assailant. He also described another man by his appearance and clothing, neither of which fitted the appellant. In a further statement later that same day he said that he saw one of the group kick the complainer on the head. He gave a description of that person in which he said, among other things, that he was wearing a black leather jacket, jeans and a T shirt. He made further statements to the police after viewing two identification parades. It is those statements that lie at the heart of this appeal.

9

At a relatively early stage in the police inquiry after the incident attention had focused upon, among others, a man named Gary Esdale. Pearce was asked to attend an identification parade on 17 January 2001, where Esdale was placed at position four. Pearce was unable to identify positively any person on that parade as having been involved in the incident. But when he was asked whether any of those present resembled any such person he replied "four or six". He said that the basis for the resemblance was the shape of his face. The person at position six was a stand-in. In a statement which he then gave to the police Pearce said:

"…I identified the men standing at positions four and six as being similar to the persons to whom I referred to [sic] in my earlier statement to the police. Numbers 4 and 6 looked very familiar and I would say that one of them was the guy that kicked Mr Sweeney on the face that night that resulted in him being knocked to the ground. I am unsure of this identification."

10

Pearce having been precognosced, suspicion then centred upon the appellant. On 2 August 2001 he was put on an identification parade. He was placed at position three. Pearce, having viewed the parade, was again unable positively to identify anyone. When he was asked if there was anyone who resembled anyone who had been involved in the incident, he said "number three". He said that this was because of his facial features. He was again interviewed by the police after this parade. In the statement that he gave on this occasion he said:

"I identified the person at position number three as similar to the person I described to the police in my statement. This person had the same facial features as I described in my original police statement.

I cannot be sure if it was the same person as on the night who [sic] I have partially indentified."

11

No proceedings were taken against Esdale. After the appellant and his co-accused had been indicted the appellant's solicitor, in preparation for his defence, attended the offices of the procurator fiscal. In accordance with the then practice,...

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