Allison v Her Majesty’s Advocate (Scotland)

The prosecution must disclose material which might undermine its case or assist the defence. This duty extends to the previous convictions and outstanding charges of Crown witnesses. The presumption of innocence does not prevent an outstanding charge from affecting a witness’s credibility or revealing a possible motive to favour the authorities.

A failure to disclose such material is incompatible with article 6(1) of the European Convention on Human Rights. The conviction will nevertheless stand unless there is a real possibility that disclosure would have produced a different verdict. Where the witness’s credibility was already comprehensively challenged and the jury could rely selectively on parts corroborated by independent evidence, undisclosed charges may make no material difference.

The appellant was convicted of four offences concerning the supply of controlled drugs. The prosecution relied partly on the recorded police interview of a deceased witness, admitted under section 259(5) of the Criminal Procedure (Scotland) Act 1995. It did not disclose the witness’s previous convictions or outstanding charges before trial.

The High Court of Justiciary refused the appeal against conviction in [2008] HCJAC 63. It accepted that non-disclosure of the convictions infringed article 6(1) but considered that outstanding charges were distinguishable because the witness remained presumed innocent. It found no miscarriage of justice arising from the undisclosed convictions.

The central questions were whether the outstanding charges were disclosable and, if so, whether their non-disclosure created a real possibility of a different verdict.

1. Disposition. The Supreme Court unanimously dismissed the appeal and remitted the case to the High Court of Justiciary to proceed as accords. Lord Rodger delivered the leading judgment. Lord Hope agreed and expanded upon the governing disclosure principle. Lords Walker, Brown and Kerr agreed with Lord Rodger.
2. Outstanding charges are disclosable. Lord Rodger held that the Crown’s failure to disclose the deceased witness’s outstanding charges was incompatible with the appellant’s article 6(1) rights. Outstanding charges may weaken the prosecution case by affecting a witness’s credibility or character. They may also disclose a motive to give false information in the hope of obtaining favourable treatment. The presumption of innocence does not require an accused witness to be treated in every respect as though no charge had been brought.
3. The governing standard is prospective fairness. Lord Hope explained that the established rule requires disclosure of material which weakens the prosecution case or strengthens the defence case. Those formulations are shorthand for a decision ordinarily made before trial. The prosecution must therefore ask what the material’s possible future effect is. Material which might undermine the prosecution or assist the defence must be disclosed. It is sufficient that outstanding charges might affect credibility; their actual effect need not be demonstrated in advance.
4. No miscarriage of justice. Lord Rodger held that non-disclosure did not create a real possibility of a different verdict. Defence counsel had already demonstrated that the witness told many lies, and the prosecutor had conceded serious defects in his credibility. The jury could nevertheless accept those parts of the account corroborated by independent evidence, including evidence connecting the witness’s car and bail arrangements with the appellant. Adding the outstanding charges to the disclosed credibility attack would have made no material difference.
5. Jurisdiction. The High Court had determined a devolution issue when it decided whether the Lord Advocate’s conduct was compatible with article 6(1). An appeal therefore lay under paragraph 13(a) of Schedule 6 to the Scotland Act 1998, irrespective of whether every procedural step for intimating that issue had been followed.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously and the case was remitted to the High Court of Justiciary to proceed as accords: [2010] UKSC 6.
2. Judicial Committee of the Privy Council: The Board granted special leave to appeal after the High Court of Justiciary had refused leave as incompetent.
3. High Court of Justiciary: The appeal against conviction was refused in [2008] HCJAC 63. A subsequent application for leave to appeal was refused as incompetent because the devolution issue had not been intimated to the Advocate General under paragraph 5 of Schedule 6 to the Scotland Act 1998.
4. High Court at Glasgow: The appellant was convicted of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971 and sentenced to eight years’ imprisonment.