Criminal evidence - Human rights - Scottish devolution issues - Miscarriage of justice

Stephanie Baker (Respondent) v (1) Nat Gordon Fraser v HM Advocate: SC (Lords Hope (Deputy President), Rodger, Brown, Kerr, Dyson): 25 May 2011

The appellant (F) appealed against a decision ([2009] HCJAC 27) refusing leave to appeal against the appeal court’s refusal to receive a devolution issue minute in relation to his appeal against his conviction for murder.

F had been convicted in 2003 of arranging for his wife (V) to be killed.

A crucial part of the Crown’s case was that days after V’s death F had removed jewellery from her body and put it in their bathroom to support the theory that she had left him.

Following conviction, further evidence came to light that two police officers had seen the jewellery in the bathroom after V’s disappearance and before F was supposed to have placed it there.

F appealed against his conviction on the basis that there had been a miscarriage of justice and applied to add a ground and devolution minute that non-disclosure of the evidence had breached his rights under article 6 of the European Convention on Human Rights 1950.

The appeal court refused F’s application for the additional ground of appeal and devolution minute to be received and dismissed his appeal against conviction, having considered it on the basis that it was on the ground of fresh evidence under section 106 of the Criminal Procedure (Scotland) Act 1995.

F’s subsequent application to appeal against the appeal court’s decision in relation to the devolution issue minute was refused as incompetent.

The issue was whether the tests the appeal court applied when dismissing F’s appeal as an appeal under section 106 were in essence the same as would have had to be applied if considering a breach of his rights under article 6 in relation to non-disclosure.

Held: (1) Special leave to appeal had been granted as the appeal court’s decision amounted to a determination of a devolution issue for the purposes of paragraph 13 of part II of schedule 6 to the Scotland Act 1998 and, applying the tests set out in McInnes (Paul) v HM Advocate [2010] UKSC 7, 2010 SC (UKSC) 28, it was seriously arguable that material had been withheld from F which ought to have been disclosed, with the consequence that he had not received a fair trial (see paragraphs 11-12 of judgment).

(2) The tests set out in McInnes fell into two parts and had to be considered and applied separately.

First, whether the withheld material might have materially weakened the Crown's case or materially strengthened F’s case and ought to have been disclosed.

Second, the consequences of any violation.

A failure to disclose material which ought to have been disclosed was incompatible with an accused’s article 6 rights and the significance and consequences of such a violation had to be assessed.

The question was whether, given a failure to disclose evidence and having regard to the consequences at trial, the trial was nevertheless fair (paragraphs 13-14).

The test for an appeal on the basis of fresh evidence was laid down in Cameron (Andrew William) v HM Advocate [1991] JC 251 HCJ Appeal and the Appeal Court’s decision to approach the appeal on that basis required determination of whether there was any material difference between the respective tests.

For the purposes of comparison, that test could be divided into the threshold test and the consequences test.

The threshold test regarding admissibility of material in a non-disclosure of evidence appeal for an appeal based on a breach of article 6 rights was different from that for fresh evidence under section 106.

The Cameron test asked whether the evidence would have had a material bearing on the jury’s determination of a critical issue at trial, which was a more stringent and more narrowly defined test than applied in McInnes.

With regard to the consequences test, section 106(3) did not provide a definition of ‘miscarriage of justice’; it was left to the court to decide on the circumstances of each case, whereas the test in McInnes was whether the trial was fair.

Section 106(3) should be read and given effect in a way which was compatible with article 6 (paragraphs 19-20, 25-27).

The McInnes test provided, for the purposes of whether there had been a fair trial for the purposes of article 6, what the Cameron test lacked: a definition of what ‘miscarriage of justice’ in section 106(3) meant in the context of compatibility with article 6 (paragraph 29).

The tests the appeal court had applied were not the same as it would have had to apply if considering whether there had been a violation of F’s article 6 rights.

Applying the McInnes tests, there had been a miscarriage of justice at F’s trial, McInnes applied, Cameron considered.

F’s case would be remitted to a differently constituted appeal court to determine whether there should be a retrial and for the conviction to be quashed (paragraphs 41-43).

Appeal allowed.

ME Scott QC, Christopher Shead, Martin Richardson (instructed by JP Mowberry) for the appellant; Frank Mulholland QC, Gordon Balfour (instructed by Crown Office) for the respondent.