JUDGMENT
McInnes (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 and 9 December 2009
Appellant Respondent
John Carroll Paul McBride QC
Moira MacKenzie Gordon Balfour
(Instructed by McClure
Collins Solicitors)
(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 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
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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,
Page 4
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
Page 5
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 coaccused 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,
Crown precognitions were read out to him in a way which allowed him to take a
detailed note of what the witnesses were expected to say at the trial. The note
which the solicitor took of what Pearce was expected to say included this passage:
“He later attended an identification parade for Paul McInnes and he
indicated that he was similar to the man in the leather jacket. He
appeared to him to be familiar. Facially he was different because he
had a goatee beard which the person at the dancing had not had, he
was therefore unsure about this identification at that time but
indicated that without the beard he was certainly more like to one in
the leather jacket than the person he identified at the Gary Easedale
[sic] parade.”
The proceedings in the courts below
12. At the trial Pearce identified all three accused as persons who were inside
the hotel on the night of the incident. He identified the appellant as the person
whom he had seen delivering the kick to the complainer’s head which caused him
to fall to the ground. In the course of his evidence in chief he was asked to explain
his reference to the facial features of the person he said that he recognised when he
viewed the identification parade on 2 August 2001. He gave this explanation:
“It was because I told to the police at the time he never had a goatee
beard but on the line up he had a goatee beard and I couldn’t identify
him positively and I told that to the police.”
Page 6
13. In his submission to the appeal court the appellant’s solicitor advocate, Mr
Carroll, emphasised that counsel conducting the appellant’s defence had not had
available to him the various statements that Pearce had given to the police. He
drew attention to inconsistencies in these statements. On exiting the Esdale parade,
which the appellant did not attend, Pearce said that one of the persons on that
parade was the guy who had kicked the complainer on the face. In his exit
statement after viewing the parade which the appellant did attend he did not refer
to the appellant as doing anything, nor did he withdraw the identification that he
had made at the Esdale parade. The explanation that he later gave for his
uncertainty at the appellant’s parade, attributing this to the goatee beard, was not
given in his exit statement. Mr Carroll said that, if he had had these statements,
counsel would have been able to put to Pearce the precise words that had been
recorded in these statements. This would have enabled him to undermine Pearce’s
more confident identification at the trial of the appellant as the person who had
administered the kick on the head.
14. The appellant’s solicitor advocate accepted that the issue was whether, the
police statements not having been made available to the defence prior to or at the
trial, the appellant had been denied a fair trial. In developing that submission
however he said that the proper question was not whether disclosure of those
statements would have made a difference to the outcome of the trial but whether it
could have made a difference. He based this part of his argument on the following
passage from Lord Rodger of Earlsferry’s judgment in Holland v HM Advocate,
para 82:
“Information about the outstanding charges might therefore have
played a useful part in the defence effort to undermine the credibility
of the Crown’s principal witness on charge 2. At least, that
possibility cannot be excluded. One cannot tell, for sure, what the
effect of such cross-examination would have been. But applying the
test suggested by Lord Justice General Clyde in Hogg v Clark 1959
JC 7, 10, I cannot say that the fact that counsel was unable to crossexamine in this way might not possibly have affected the jury’s
(majority) verdict on charge 2 – and hence their verdict on charge 3.”
15. The appeal court, as I have said, did not accept this argument. Delivering
the opinion of the court, the Lord Justice General (Hamilton) said in para 20 that
the critical issue was whether the principle of equality of arms had been breached,
and that it would be if access to the statement in question would have been of
material assistance to the defence or, viewing the matter realistically, the denial of
access might have prejudiced the defence. Whether that was so would be a matter
for assessment by the appeal court in the circumstances of each case. It was not
entitled in effect to avoid that task by adopting a test which depended simply on
whether the denial of access ‘might not possibly have affected’ the outcome.
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16. The Lord Justice General then added these words at the end of that
paragraph:
“Lord Rodger’s test has been used (or abused) in argument in this
jurisdiction to suggest that the threshold for reversing the verdict of a
jury in non-disclosure and analogous cases is low. This may be a
misreading of Lord Rodger’s words. In the context of determining
whether there has been a miscarriage of justice (or, we venture to
think, an unfair trial) a robust test is required. The test of a real risk
of prejudice to the defence was, rightly in our view, adopted in Kelly
v HM Advocate [2005] HCJAC 126, 2006 SCCR 9.”
In Kelly v HM Advocate, where a statement to the police by the complainer was
not made available to the defence, counsel for the appellant based his submission
on the test that had been suggested in Hogg v Clark, which he said had been
approved by Lord Rodger in Holland v HM Advocate, at para 82. Delivering the
opinion of the court in Kelly, Lady Cosgrove did not adopt that approach. She
rejected the submission that non-disclosure of the statement might have made a
difference to the outcome, saying that it did not give rise to “any real risk of
prejudice to the appellant”: para 33. She said that in all the circumstances the court
was of the opinion that the appellant was not denied a fair trial, and that as a
consequence there was no miscarriage of justice: para 35.
The issue before this court
17. The Crown maintained in the appeal court that it had performed its duty of
disclosure by reading to the appellant’s solicitor the terms of Pearce’s precognition
in circumstances where the solicitor had been able to take, and had taken, full and
accurate notes. The appeal court rejected that argument on the ground that the
Crown was obliged to disclose all police statements of witnesses who were to be
led at the trial, and it has not been renewed in this court. The Crown now accepts
that there was a failure in the duty of disclosure. So this point is no longer in issue.
18. The question for this court, given that there was a failure in the duty of
disclosure, is what the correct test is for the determination of the appeal. It does not
extend to the question whether the test, once it has been identified, was applied
correctly. This is because section 124(2) of the Criminal Procedure (Scotland) Act
1995, as amended by the Scotland Act 1998 (Consequential Modifications) (No 1)
Order 1999 (SI 1999/1042), provides that every interlocutor and sentence
pronounced under Part VIII of the Act, which deals with solemn appeals, shall be
final and conclusive and not subject to review in any court whatsoever except for
the purposes of an appeal under para 13 (a) of Schedule 6 to the Scotland Act
Page 8
1998. The application of the test to the facts of the case was a matter that lay
exclusively within the jurisdiction of the appeal court. But, as the appeal court
itself recognised when it gave leave in this case, the question as to what the correct
test is forms part of the devolution issue. It is properly the subject of an appeal
under para 13(a) of Schedule 6 and is open to review by the Supreme Court.
The test
19. Two questions arise in a case of this kind to which a test must be applied.
The tests in each case are different, and they must be considered and applied
separately. The first question is whether the material which has been withheld
from the defence was material which ought to have been disclosed. The test here is
whether the material might have materially weakened the Crown case or materially
strengthened the case for the defence: HM Advocate v Murtagh, para 11. The Lord
Advocate’s failure to disclose material that satisfies this test is incompatible with
the accused’s article 6 Convention rights. In the case of police statements, the
position is clear. Applying the materiality test, all police statements of any
witnesses on the Crown list must be disclosed to the defence before the trial:
McDonald v HM Advocate, para 51.
20. The second question is directed to the consequences of the violation. This is
the question that arises at the stage of an appeal when consideration is given to the
appropriate remedy: see Spiers v Ruddy 2009 SC (PC) 1. In that case it was the
reasonable time guarantee that was in issue, but I think that the ratio of that case
applies generally. As Lord Bingham of Cornhill put it in para 17, the Lord
Advocate does not act incompatibly with a person’s Convention right by
continuing to prosecute after the breach has occurred. A trial is not to be taken to
have been unfair just because of the non-disclosure. The significance and
consequences of the non-disclosure must be assessed. The question at the stage of
an appeal is whether, given that there was a failure to disclose and having regard to
what actually happened at the trial, the trial was nevertheless fair and, as Lady
Cosgrove said in Kelly v HM Advocate, para 35, as a consequence there was no
miscarriage of justice: see section 106(3) of the Criminal Procedure (Scotland) Act
1995. The test that should be applied is whether, taking all the circumstances of the
trial into account, there is a real possibility that the jury would have arrived at a
different verdict.
21. It has been suggested that Lord Rodger’s observations in Holland v HM
Advocate, para 82, indicate that it is for the Crown to show that the non-disclosure
could not possibly have affected the jury’s verdict: Holland v HM Advocate 2005
SCCR 417, commentary by Sir Gerald Gordon, para. 5. If so, the effect would be
to set a relatively low threshold. In my opinion, however, his observations must be
read in their proper context. In para 43 Lord Rodger said that the ultimate question
Page 9
was whether the trial as a whole was fair. He then dealt with the Crown’s
obligation of disclosure in para 64, where he referred to the accepted test as to
whether the information was material. Having done this, he returned to the issue of
fairness. In para 77 he said:
“It is now necessary to consider whether, taken as a whole, the
appellant’s trial was fair in terms of article 6(1).”
Having examined the significance of the Crown’s failures in paras 78-85, he said
that he had arrived at the conclusion that the failures to disclose and the Advocate
Depute’s reliance on dock identifications were incompatible with the Convention
right since, taken together, they had resulted in an unfair trial.
22. The sentence in Holland v HM Advocate, para 82 on which Mr Carroll
relies (quoted in para 14, above) was directed to the use that might have been made
of the outstanding charges to undermine the appellant’s credibility. The issue with
which he was dealing here was the materiality of that information. This was a
necessary step in the assessment of the question whether there had been a fair trial.
The words “might not possibly have affected the jury’s (majority) verdict” are
used. But Lord Rodger does not say that this is the test to be applied in
determining whether the trial as a whole was fair. In any event, I do not think that
it would be the correct way of describing it.
23. Commenting on what Lord Rodger said in para 82, the Lord Justice General
said in the passage which I have quoted from para 20 of his opinion (see para 16,
above) that it would be a misreading of Lord Rodger’s words to conclude that the
threshold for reversing the verdict of the jury in non-disclosure and analogous
cases is low. I would endorse this assessment. The threshold which must be
crossed is the same as that which applies in any case where it is maintained that,
because there was a violation of article 6(1) that affected the way the trial was
conducted, there has been a miscarriage of justice. I also agree that, in a case of
that kind, the question whether there has been a miscarriage of justice and the
question whether the trial was unfair run together. It is axiomatic that the accused
will have suffered a miscarriage of justice if his trial was unfair. The statutory
ground for setting aside the jury’s verdict under section 106(3) of the 1995 Act
enables the appeal court to provide an effective remedy to the appellant for the
breach of his Convention right. This is done when the appeal court makes its own
assessment as to whether the trial as a whole was fair. It will allow the appeal on
the ground that there was a miscarriage of justice if it concludes that it was not.
24. The Lord Justice General then said at the end of para 20 that a robust test
was required. The test which he identified was whether there was a real risk of
Page 10
prejudice to the defence. These remarks, I would respectfully suggest, need some
explanation. They invite questions as to how robust the test must be and how the
real risk is to be identified. They need to be taken just one step further to indicate
more precisely the test that should be applied. The question which lies at the heart
of it is one of fairness. The question which the appeal court must ask itself is
whether after taking full account of all the circumstances of the trial, including the
non-disclosure in breach of the appellant’s Convention right, the jury’s verdict
should be allowed to stand. That question will be answered in the negative if there
was a real possibility of a different outcome – if the jury might reasonably have
come to a different view on the issue to which it directed its verdict if the withheld
material had been disclosed to the defence.
Conclusion
25. Although I have suggested that the description of the test which the Lord
Justice General gave at the end of para 20 was incomplete, it is clear from the
discussion that follows that the test that the appeal court actually applied was the
correct one. As I have already observed, it is not for this court to say whether the
test was applied correctly. But it is open to it to examine the reasons given by the
appeal court for concluding that there had not been a miscarriage of justice to see
whether they show that it applied the correct test. Having considered what the Lord
Justice General said in paras 21-22, I am entirely satisfied on this point. There was
a thorough examination of all the relevant issues, and the conclusion that the
appeal court came to was one which a court, applying the correct test, could be
expected to have come to. I would dismiss the appeal.
LORD RODGER
26. I agree that the appeal should be dismissed. I make only two brief
observations.
27. It is now settled that the Crown must disclose certain classes of material,
including the police statements of witnesses on the Crown list. In this case, as Lord
Hope has explained, the Crown failed to disclose certain statements which their
witness, Pearce, made to the police. There was therefore an infringement of the
appellant’s article 6(1) Convention rights.
28. Sometimes, it is possible to say that certain material does actually weaken
the Crown case. For example, where identity is an issue, the Crown case is
weakened by the failure of the principal eyewitness, when viewing an identity
parade, to pick out the accused as one of those involved in an assault. So, evidence
Page 11
of that failure would have to be disclosed. But the obligation to disclose is not so
limited. As Lord Macfadyen held in Maan v HM Advocate 2001 SLT 408, 416, at
para 27, in a passage adopted in the Privy Council in Holland v HM Advocate 2005
1 SC (PC) 3, 24, at para 72, the accused’s “right is to have disclosed to him
material necessary for the proper preparation as well as the proper presentation of
his defence.” And, quite often, even the accused’s advisers will not know whether
material will actually prove useful until they see it. Nevertheless, as Lord Brown
indicates at para 39 of his judgment, police statements of Crown witnesses must be
disclosed because there is always the possibility that, in the hands of the defence,
they may materially weaken the Crown case or materially strengthen the defence
case. The same approach is appropriate when the Crown have to decide whether to
disclose a particular piece of material. It must be disclosed to the accused’s
representatives if, in their hands, it might materially weaken the Crown case or
materially strengthen the defence case. How, if at all, they actually use the material
when preparing or presenting the defence is, of course, entirely a matter for them.
29. I accordingly agree with Lord Brown’s observations in para 39 of his
judgment and with Lord Hope’s observations to similar effect in Allison v HM
Advocate.
30. The significance of any infringement of an accused’s article 6(1)
Convention rights will depend on the circumstances. As has been said on many
occasions, not every infringement of a particular right will mean that the accused’s
trial as a whole has been unfair. Obviously, for example, failure to disclose a
police statement of a Crown witness who is not called to give evidence will usually
have no effect on the fairness of the trial. And, even in a case like the present
where the witness, Pearce, gave evidence, an appellate court will have to assess
how the failure by the Crown to disclose various statements which he made to the
police actually affected the trial. Of course, an appellant can always argue that, if
his advocate had been armed with the statements, it is possible that he could have
persuaded the jury to come to a different conclusion. But the law deals in real, not
in merely fanciful, possibilities. So, in cases like the present, an appellate court
will only hold that a trial has been unfair and quash the jury’s verdict as a
miscarriage of justice if there is a real possibility that, if the statements had been
disclosed, a jury might reasonably have come to a different verdict. Mutatis
mutandis, this is the same as the test in Stirland v DPP [1944] AC 315, 321, which
has often been applied by the appeal court.
31. I therefore agree with what Lord Hope says in para 24 of his judgment and
with what Lord Brown says in para 35 of his.
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LORD WALKER
32. I agree that this appeal should be dismissed for the reasons given by Lord
Hope and Lord Rodger in their judgments, with which I agree.
LORD BROWN
33. The central question raised in this devolution appeal is whether the appeal
court applied the right test in deciding that the Crown’s failure to disclose a
particular prosecution witness’s statement to the police did not result in a
miscarriage of justice.
34. Lord Hope has set out the relevant facts of the case and none of these need I
repeat. Lord Hope also most helpfully explains, first, that it is the law of Scotland
that must be applied in this case and, secondly, the limits of a devolution appeal to
this court, namely that we should decide whether the court below adopted the
correct legal test but not whether (assuming it did) it then applied that test correctly
on the facts. I also share what I understand to be Lord Hope’s view that there will
have been a miscarriage of justice if, but only if, the trial as a whole was unfair
and, in turn, that it is only if the trial as a whole was unfair that the Crown can
properly be held to have acted in breach of article 6 of the Convention so as to
require that the appellant’s conviction be set aside. The question, therefore, is
whether the non-disclosure of Pearce’s statement made the appellant’s trial unfair.
35. What, then, in the context of an undisclosed statement, makes a trial unfair?
This, ultimately, is the determinative question in the case. I would answer it as
follows. The trial will be adjudged unfair if, but only if, the appeal court concludes
that the non-disclosure gave rise to a real risk of prejudice to the defence. This in
turn depends upon whether the appeal court regards the non-disclosure as having
denied the defence the real possibility of securing a different outcome. In short, in
a case such as this, the appeal should be allowed if the court decides that, had
defence counsel been in a position to make use of the undisclosed statement, the
jury might reasonably have come to a different conclusion, otherwise not. It is that
which must decide whether the jury’s verdict should be allowed to stand. I
understand Lord Hope’s approach in para 22 to be entirely consistent with this
formulation.
36. This, I apprehend, would be the position in English law (both as to the test
to be applied – in England as to whether the conviction under appeal is unsafe –
and as to the decision being one for the appeal court itself) and I can see no good
reason why it should be any different under Scottish law. In Bain v The Queen 72
Page 13
JCL 34, BC ([2007] UKPC 33) (cited at para 7-51 of Archbold 2009) Lord
Bingham of Cornhill, giving the opinion of the Privy Council, put the matter thus
(at para 103):
“A substantial miscarriage of justice will actually occur if fresh,
admissible and apparently credible evidence is admitted which the
jury convicting a defendant had no opportunity to consider but which
might have led it, acting reasonably, to reach a different verdict if it
had had the opportunity to consider it.”
37. True, that was a case of fresh evidence rather than an undisclosed statement
but, as a member of that Board, I did not regard the opinion there as inconsistent
with an earlier opinion I myself had given in Dial and Dottin v The State [2005]
UKPC 4, para 31, in the context of fresh evidence which showed the main
prosecution witness to have lied during his evidence at trial:
“In the Board’s view the law is now clearly established and can be
simply stated as follows. Where fresh evidence is adduced on a
criminal appeal it is for the Court of Appeal, assuming always that it
accepts it, to evaluate its importance in the context of the remainder
of the evidence in the case. If the Court concludes that the fresh
evidence raises no reasonable doubt as to the guilt of the accused it
will dismiss the appeal. The primary question is for the Court itself
and is not what effect the fresh evidence would have had on the mind
of the jury. That said, if the Court regards the case as a difficult one,
it may find it helpful to test its view ‘by asking whether the evidence,
if given at the trial, might reasonably have affected the decision of
the trial jury to convict’ (Pendleton at p83, para 19 [R v Pendleton
[2002 1 WLR 72]). The guiding principle nevertheless remains that
stated by Viscount Dilhorne in Stafford (at p906 [Stafford v Director
of Public Prosecutions 1974 AC 878]) and affirmed by the House in
Pendleton:
‘While . . . the Court of Appeal and this House may find it a
convenient approach to consider what a jury might have done if they
had heard the fresh evidence, the ultimate responsibility rests with
them and them alone for deciding the question [whether or not the
verdict is unsafe].’”
38. That being the correct approach, is there any reason for concluding that the
Lord Justice General adopted some different (and, from the appellant’s point of
view, less favourable) test in the present case? In my judgment there is not. The
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test he adopted was that of “a real risk of prejudice to the defence”. True, he did
not spell out that what is meant by this is that the defence was denied the real
possibility of securing a different outcome. But really that was implicit in his
rejection of the argument that the question to be asked was merely whether the
non-disclosure “might not possibly have affected” the outcome. There is a critical
difference between asking whether disclosure “might not possibly” have led the
jury to acquit and whether that was a “real possibility”. The difference is between
what is merely conceivable and what is realistic. The Lord Justice General rejected
the former test as too “low”, rightly preferring the latter as “robust”. The judgment
cannot be seriously criticised for speaking of “a robust test”, a test immediately
then explained as “the test of a real risk of prejudice to the defence”. Nor is the
Lord Justice General to be criticised for his subsequent comment that questioning
based on the undisclosed statement here would “hardly have constituted a coup de
grâce” – a throwaway expression from which it cannot possibly (still less
realistically) be inferred that the appeal court was approaching the case on the
footing that nothing short of this would suffice.
39. The one other matter I want to touch on is disclosure. The devolution case
law now establishes that all police statements are disclosable, on the basis that, as
a class, they are to be regarded as material “which either materially weakens the
Crown case or materially strengthens the case for the defence” (para 11 of Lord
Hope’s judgment in HM Advocate v Murtagh [2009] UKPC 36). As, however,
Lord Hope points out at para 18, it by no means follows that, because the
statement should have been disclosed on this basis, a failure to disclose it involves
a breach of the accused’s article 6 Convention right to a fair trial. Statements as a
class are routinely disclosable because there is always the possibility that they may
prove to be harmful to the Crown or helpful to the defence. In the event of nondisclosure, however, the trial is only to be regarded as unfair if in fact disclosure
might have harmed the Crown or helped the defence to such an extent that in
retrospect the defence can be shown to have lost a real possibility of acquittal. To
say that Pearce’s statement here should have been disclosed because it materially
weakened the Crown’s case is not to say that realistically its disclosure would in
fact have significantly weakened the Crown’s case. Indeed, in retrospect it might
have been better to formulate the test for disclosability in terms of material which
might materially weaken the Crown’s case or might materially strengthen the case
of the defence. Certainly, a finding of materiality relative to the disclosability of a
document is not to be confused with a finding that it would actually have been of
value to the defence nor regarded as pre-empting the defendant’s need on appeal to
establish that, but for the non-disclosure, he would have had a realistic prospect of
acquittal.
40. I too would dismiss this appeal.
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LORD KERR
41. For the reasons given by Lord Hope and Lord Brown, with which I am in
full agreement, I too would dismiss the appeal.
