JUDGMENT
Allison (Appellant) v Her Majesty’s Advocate
(Respondent) (Scotland)
before
Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lord Brown
Lord Kerr
JUDGMENT GIVEN ON
10 February 2010
Heard on 8 December 2009
Appellant Respondent
Gordon Jackson QC Alex Prentice QC
Claire Mitchell Gordon Balfour
(Instructed by Capital
Defence Lawyers)
(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)
Page 2
LORD RODGER
1. On 9 September 2004 the appellant, Steven Allison, was convicted after
trial in the High Court at Glasgow of four contraventions of section 4(3)(b) of the
Misuse of Drugs Act 1971. In effect, he was found guilty of being concerned in the
supplying of cocaine and three other controlled drugs at his home in Cumbernauld,
at an address in Falkirk and elsewhere in the United Kingdom, between 12
November and 3 December 2003. The trial judge, Lord Bracadale, sentenced him
to 8 years imprisonment.
2. The appellant appealed against both his conviction and sentence. On 7
November 2008 the appeal court (Lord Osborne, Lady Paton and Lord Philip)
refused his appeal against conviction, leaving his appeal against sentence to be
heard on a date to be fixed.
3. Among his grounds of appeal against conviction was one which was first
advanced in an additional Note of Appeal. It relates to the record of a police
interview of a John Stronach. Mr Stronach had died before the trial and the Crown
introduced the interview into evidence in accordance with the procedure in section
259(5) of the Criminal Procedure (Scotland) Act 1995.
4. Neither before nor during the trial did the Crown disclose to the defence
that Mr Stronach had a number of previous convictions and outstanding charges.
In particular, he had convictions for reset, theft by opening lockfast places, assault
and robbery and assault and breach of the peace. He also had a number of
outstanding charges, including two alleged contraventions of the Misuse of Drugs
Act 1971, an alleged theft by housebreaking and several alleged contraventions of
the Road Traffic Act 1988. One of the outstanding cases under the Misuse of
Drugs Act related to events covered by the trial and was known to the appellant’s
legal advisers. The Crown disclosed the previous convictions and the other
outstanding charges only while the appellant’s appeal was pending before the
appeal court. This prompted the appellant to lodge his additional ground of appeal:
“The failure on the part of the Crown to disclose to the defence the existence of all
the previous convictions and outstanding charges resulted in the defence being
unable to prepare and properly conduct their defence and the result was that the
appellant did not receive a fair trial, as guaranteed by article 6(1) of the European
Convention on Human Rights.”
5. Following the dismissal of his appeal by the appeal court, the appellant
applied for leave to appeal to the Privy Council in relation to the additional ground
Page 3
of appeal. On 6 March 2009 the appeal court (Lord Osborne, Lady Paton and Lord
Mackay of Drumadoon) refused the application as incompetent, on the ground that
no intimation of a devolution issue had been given to the Advocate General as
required by para 5 of Schedule 6 to the Scotland Act 1998. The court went on to
indicate that, if it had been open to them to grant or refuse leave, they would not
have granted leave.
6. The appellant subsequently applied to the Privy Council for special leave to
appeal. The Board granted special leave. Although the statement of facts and
issues included an issue relating to the competency of the appeal court’s decision
to refuse leave, neither the advocate depute nor the Advocate General advanced
any argument on the point at the hearing of the appeal. Undoubtedly, when the
appeal court determined that the Lord Advocate was not under an obligation by
virtue of article 6(1) of the European Convention to disclose the outstanding
charges against Mr Stronach, they were in substance determining a devolution
issue in terms of para 1(d) or (e) of Part I of Schedule 6 to the Scotland Act 1998 –
irrespective of whether all the relevant procedural steps had been followed. It
follows, as was held in McDonald v HM Advocate 2008 SLT 993, 1002, paras 48
and 49, that an appeal on that point lies to this Court under para 13(a) of Part II of
that Schedule.
7. Of course, the late Mr Stronach’s name was never included in the list of
Crown witnesses appended to the indictment for the appellant’s trial – which may
help to explain why the need to disclose his criminal antecedents was overlooked.
But, when dismissing the appellant’s appeal, the appeal court rightly accepted,
under reference to Holland v HM Advocate 2005 1 SC (PC) 3, 24, para 72, that the
failure by the Crown to disclose Mr Stronach’s previous convictions had been
incompatible with the appellant’s article 6(1) Convention rights. Despite the
further conclusion of the Privy Council in Holland, at pp 24-25, paras 73-74, that
the Crown were also under an obligation to disclose material outstanding charges
of which they were aware, the appeal court in the present case drew a distinction
between Mr Stronach’s previous convictions and “his outstanding cases at the time
of the trial” – by which the court obviously meant the charges against him which
had been outstanding at the time of his death. The court continued:
“We consider that, in this context, a distinction has to be made
between previous convictions and outstanding cases. While, in
appropriate circumstances, the existence of previous convictions may
be of importance in connection with the preparation of a defence and
to the challenge that may be mounted to the credibility of a witness,
we do not consider that the same may be said of outstanding cases.
Where an individual is charged with crime, he or she is presumed to
be innocent until proved guilty. If a case is outstanding, necessarily
no verdict has been reached in it. In these circumstances we have
Page 4
insuperable difficulty in understanding how information relating to
those matters could be properly deployed in the conduct of a
defence.”
8. Previous generations of Scots lawyers and judges do not appear to have
experienced the same “insuperable difficulty” as the appeal court.
9. It is, of course, trite that an individual charged with crime is presumed to be
innocent until proved guilty. But that is not to say that he has to be treated in all
respects as if he were an innocent person against whom no charge had been
brought. Most obviously, in an appropriate case, he can be remanded in custody
pending trial or granted bail subject to appropriate conditions. Similarly,
depending on the offence and the terms of his contract of employment, he may be
suspended from his employment. More generally, if you know that someone has
been charged with, say, fraud, you will be less inclined to enter into a commercial
transaction with him; if you know that someone has been charged with sexual
abuse, you will think twice before entrusting your children to her care; if you know
that someone has been charged with theft, you will be less inclined to trust
anything which he tells you, unless it can be confirmed from other sources.
10. The Privy Council’s decision in Holland, that the Crown should disclose
outstanding charges of Crown witnesses of which they were aware, simply
reflected the common sense position that – just as in everyday life – judges or
jurors who have to assess the credibility of a witness may properly take into
account not only the fact that the witness has been convicted of various offences,
but also the fact that he has been charged with others. To judge from the passage
quoted in para 7 above, the appeal court seem to have thought that this was an
unprincipled and incoherent innovation. It is noteworthy that they did not refer to
any authority. In reality, the approach of the Privy Council, in so far as it proceeds
on the basis that outstanding charges may have a bearing on a witness’s credibility,
merely reflects what appears to have been recognised as the proper practice in
Scottish courts for more than 170 years.
11. At one time, in Scots law anyone convicted of serious crimes became
technically infamous (infamis) and was thereafter unable to give evidence at any
trial. By the early nineteenth century this rule was proving self-defeating for the
authorities: all too often it was a gift to the defence since it prevented the only
material witnesses to crimes from giving evidence. So the rule was first relaxed
and then eventually abolished. The only explicit authority relating to a witness
with outstanding charges comes from that era. At a High Court trial at Dumfries,
when leading a Crown witness, William Higgins, the advocate depute began by
establishing that he was due to be tried at the same circuit on a charge of theft by
housebreaking, aggravated by his having been previously convicted of theft and
Page 5
being a thief by habit and repute. See John Hannah and Hugh Higgins, 17
September 1836, Bell’s Notes, p 256, in the Supplement to Hume’s Commentaries
on the Law of Scotland respecting Crimes (1844 edition), vol 2. Since the court
ruled on the admissibility of the advocate depute’s line of questioning, the defence
must have objected that the Crown were, in effect, leading a witness who, if
convicted of the crime in question at his trial later in the sitting, would then be
unable to testify. The court rejected the argument and allowed the question. As the
author of the Notes, Sheriff Bell, comments, “The court, however, in allowing the
question, must have thought it relevant to affect the credit of the witness.”
12. The potential relevance of outstanding charges to the credibility of a
witness appears to have been settled in the nineteenth century. See, for instance,
Dickson’s Treatise on the Law of Evidence in Scotland (revised edition, 1887) vol
2, para 1619. Most significantly, Macdonald’s Criminal Law of Scotland (3rd
edition, 1894), p 462, says: “Nor may [a witness] refuse to say whether he has
been convicted of or stands indicted for a crime.” This passage appears in virtually
the same words in the fifth and final edition (1948), pp 297-298. The passage
could never have stood unchallenged in successive editions of the traditional
vademecum of Scottish criminal practitioners and judges if it had not reflected
practice in the courts. Not surprisingly, therefore, neither the advocate depute nor
the Advocate General supported the approach of the appeal court in the present
case.
13. In Holland v HM Advocate 2005 1 SC (PC) 3 the appellant was convicted
of a charge of assault and robbery at a house in Rutherglen. The Crown failed to
disclose that there were outstanding charges against the complainers, relating to
drug dealing at the house in question. The Privy Council held, at p 25, para 75, that
information about these charges would have helped to complete the picture both of
the complainers and of their milieu. In other words, it would have had the potential
to weaken the Crown case and so it should have been disclosed. In his written
submissions in the present appeal, the advocate depute gave examples of other
situations where an outstanding charge against a Crown witness might materially
weaken the Crown case or strengthen the defence case: if the witness denied he
had ever been in trouble with the police, an outstanding charge could legitimately
be put to him; similarly an outstanding charge might provide a potential motive for
the witness giving untrue information in an attempt to curry favour with the
authorities.
14. It is unnecessary to prolong the discussion since the Crown did not deny
that the outstanding charges against Mr Stronach might have weakened the Crown
case by casting doubt on his character or credibility. It follows that, in accordance
with Holland v HM Advocate 2005 1 SC (PC) 3 and HM Advocate v Murtagh 2009
SLT 1060, the failure of the Crown to disclose the outstanding charges to the
Page 6
defence was indeed incompatible with the appellant’s article 6(1) Convention
rights.
15. At the hearing of the appeal, all this really went without saying and the only
live issue was the actual significance, in the whole circumstances of the case, of
the Crown’s failure to disclose the charges. The appeal court did not consider that
matter, but they did, of course, consider the effect of the Crown’s failure to
disclose his previous convictions. Having considered the circumstances, the appeal
court were not “persuaded that the failure of the Crown to disclose the previous
convictions of Stronach to the appellant’s advisers resulted in an unfair trial and
hence a miscarriage of justice.” They accordingly rejected the appellant’s appeal,
so far as based on the Crown’s failure to disclose Mr Stronach’s previous
convictions.
16. Standing that decision, at the hearing before this Court, Mr Jackson QC,
who appeared for the appellant, had to argue that the failure to disclose Mr
Stronach’s outstanding charges made a significant difference. In other words, the
Court should conclude that there would have been a real possibility of a different
outcome if the jury had been made aware, not only of Mr Stronach’s previous
convictions, but of the outstanding charges against him: in that event, the jury
might reasonably have come to a different view as to whether the appellant was
concerned in the supplying of the various drugs during the relevant period.
17. The case against the appellant was circumstantial. It comprised, for the
most part, evidence of observations by police officers who had conducted a
surveillance operation over several weeks. The evidence relating to Mr Stronach’s
statement concerned events of 24 November 2003.
18. DS Duncan Smith was not otherwise involved in the relevant events. He
gave evidence that, at about 12.45 pm on 24 November, when checking an
address, he saw a blue Peugeot, registration number M810 UEW, parked at the
appellant’s home at 58 Whitelees Road, Cumbernauld. At 9.32 pm Mr Stronach
was seen driving the Peugeot to a service station at Kilmarnock where he met up
with a Ford Orion. The two cars drove in convoy to Logan, near Cumnock. There,
in the car park of the Logangate Arms, the driver of the Orion spoke to Mr
Stronach who did not leave his car. Mr Stronach then drove up to Glasgow and on
to the M8 where he was stopped by two police officers. A Farm Foods bag, found
in the glove compartment of the Peugeot, contained cocaine worth at least
£30,000.
19. The police interviewed Mr Stronach on tape in the early hours of 25
November. This is the interview which is the subject of the additional ground of
Page 7
appeal. The tape recording of the entire interview was played to the jury during the
evidence of DC McFadden. In the course of the interview Mr Stronach said that he
had been sent by a man called “Stevie” from Abronhill to sell the car. The
appellant’s first name is Steven and his home was in the Abronhill district of
Cumbernauld. The description of “Stevie” given by Mr Stronach fitted the
appellant. On 27 November the appellant left his home and drove to the house of
Mr Stronach’s girlfriend in Denny. He then took Mr Stronach’s passport to Airdrie
Sheriff Court where it was used in connexion with his application for bail. A
receipt for the passport from the court dated 27 November was recovered from the
appellant’s home.
20. Defence counsel took DC McFadden through the transcript of the interview
in detail and was able to show that Mr Stronach had told many lies. When he came
to address the jury, the advocate depute accepted that he had clearly lied about his
movements and about his involvement in drugs. But the advocate depute suggested
to the jury that it would be easier to accept those parts of the interview which were
supported by other acceptable evidence. In particular, he pointed to the evidence of
DS Smith, who was not otherwise involved in the investigation, that the Peugeot
which Mr Stronach was driving when stopped by the police had been parked
outside the appellant’s house earlier the same day. The advocate depute also
referred to the evidence about the appellant collecting Mr Stronach’s passport from
his girlfriend’s house and taking it to Airdrie Sheriff Court in connexion with his
application for bail on the drugs charges arising out of the recovery of the cocaine
from the Peugeot. The advocate depute argued that it would be a spectacular
coincidence if this did not indicate that the appellant knew of Mr Stronach’s
involvement with drugs.
21. In his supplementary report to the appeal court, Lord Bracadale,
summarised the position in this way:
“Taking into account the analysis of the interview of Mr Stronach
carried out by [defence counsel] and the concessions made as to his
credibility by the advocate depute, the jury would have been most
likely to conclude that Mr Stronach did indeed tell many lies in the
course of the interview. They would, however, have been entitled to
be selective in their view of the evidence of Mr Stronach.”
Lord Bracadale then referred to Mr Stronach’s previous convictions and added:
“In the circumstances outlined above it is difficult to see how the
canvassing of the previous convictions of Mr Stronach before the
jury would have bolstered the already largely successful attack on his
Page 8
credibility. It is also difficult to see why knowledge of the previous
convictions would have discouraged the jury from being selective in
the approach to the contents of the interview of Mr Stronach.”
22. Against that background, the appeal court were not persuaded that the
failure of the Crown to disclose Mr Stronach’s previous convictions resulted in an
unfair trial and hence a miscarriage of justice. For exactly the same reasons, I am
not persuaded that, if defence counsel had been able to deploy Mr Stronach’s
outstanding charges as well as his previous convictions, this would have made any
material difference. More especially, it would not have affected the fact that the
jury, who must have been well aware of the defects in Mr Stronach’s statements,
could still, with equal plausibility, have accepted those elements, and only those
elements, in Mr Stronach’s account which were corroborated by other acceptable
evidence.
23. I am accordingly satisfied that there is no real possibility that the jury would
have come to a different verdict on the four charges against the appellant if they
had been made aware, not only of Mr Stronach’s previous convictions, but of the
outstanding charges against him as well. There has therefore been no miscarriage
of justice. I would accordingly dismiss Mr Allison’s appeal and remit the case to
the appeal court to proceed as accords.
LORD HOPE
24. I agree with Lord Rodger that the appeal must be dismissed, and I would
make the same order as he proposes.
25. The point of principle which this case raises is whether a failure to disclose
outstanding charges against a Crown witness is incompatible with the accused’s
article 6(1) Convention rights. Had it not been for the passage in the opinion of the
appeal court which Lord Rodger has quoted in para 7 of his judgment, I would not
have thought that there was now any room for dispute on the point. In McDonald v
HM Advocate [2008] UKPC 46. 2008 SLT 993, para 51 Lord Rodger said that the
decisions of the Board in Holland v HM Advocate [2005] UKPC D 1, 2005 SC
(PC) 3 and Sinclair v HM Advocate [2005] UKPC D 2, 2005 SC (PC) 28 had
answered this question. Included within the general description of disclosable
material are two classes of material, namely police statements of any witnesses on
the Crown list and the previous convictions and outstanding charges relating to
those witnesses.
Page 9
26. The rule of law on which that classification is based is that of fairness. In
McLeod v HM Advocate (No 2) 1998 JC 67, Lord Justice General Rodger said that
our system of criminal procedure proceeds on the basis that the Crown have a duty
at any time to disclose to the defence information which would tend to exculpate
the accused. In Sinclair v HM Advocate, para 33 I said that the prosecution is
under a duty to disclose to the defence all material evidence in its possession for or
against the accused, and that for this purpose any evidence which would tend to
undermine the prosecution case or to assist the case for the defence is to be taken
as material.
27. Sometimes the proposition is worded differently. In HM Advocate v
McDonald [2008] UKPC 46, 2008 SLT 993, para 50 Lord Rodger said:
“Put shortly, the Crown must disclose any statement of other
material of which it is aware and which either materially weakens
the Crown case or materially strengthens the defence case
(disclosable material)”
Lord Bingham of Cornhill used the same formula when describing the “golden
rule” in R v H and others [2004] UKHL 3, [2004] 2 AC 134, para 14 when he said:
“Fairness ordinarily requires that any material held by the
prosecution which weakens its case or strengthens that of the
defendant, if not relied on as part of its formal case against the
defendant, should be disclosed to the defence.”
In HM Advocate v Murtagh [2009] UKPC 36, 2009 SLT 1060, para 11, I said,
under reference to McLeod, Holland, Sinclair and McDonald, that it was well
settled that the Crown must disclose any statements or other material of which it is
aware which either materially weakens the Crown case or materially strengthens
the case for the defence: see also Lord Rodger, para 48.
28. These formulations should however be regarded as expressing what has
been described as the golden rule in shorthand. After all, they are describing a
decision about disclosure which must normally be taken before the trial. It is a
decision which will be based on an assumption as to what may happen in the
future. So the question the Crown must ask itself is what the possible effect would
be likely to be if the material were to be disclosed. As I said in R v Brown
(Winston) [1998] AC 367, 374, it would be contrary to the principle of fairness for
the prosecution to withhold from the defendant material which might undermine
their case against him or which might assist his defence. Lord Collins, referring to
Page 10
what I said in that case, also used the word “might” in Murtagh, para 75. That is
the way Lord Rodger has expressed the position that the Crown has adopted in this
case in para 14, above, and I respectfully agree with it.
29. As for the point that troubled the appeal court, it is true that a distinction
can be drawn between previous convictions and outstanding charges. But that does
not mean that it can be assumed that information about outstanding charges of
Crown witnesses can never affect their credibility. It is enough, for the disclosure
rule to apply to them as a class, that they might do so. Of course the person
concerned is presumed to be innocent until proved guilty. But if he is asked the
question whether he has ever been in trouble with the police, he must answer it. A
false or evasive answer might well be thought by a jury to undermine his
credibility. Other circumstances may be envisaged where the fact that charges have
been brought against the witness may have that effect. The application of the rule
to outstanding charges, as the Crown accepts, is really just based on common sense
and every day experience. No-one should now be in any doubt that the disclosure
rule applies to them, or as to the reasons why this is so.
LORD WALKER
30. I am in full agreement with the judgment of Lord Rodger. For the reasons
that he gives I would dismiss this appeal.
LORD BROWN
31. I agree with the judgment of Lord Rodger and, for the reasons that he gives,
I too would dismiss this appeal.
LORD KERR
32. I agree with the judgment of Lord Rodger and, for the reasons that he gives,
I too would dismiss this appeal.
