McInnes v Her Majesty’s Advocate (Scotland)

Failure to disclose material in breach of an accused’s right to a fair trial does not automatically make the trial unfair. On appeal, the court must assess the trial as a whole and ask whether the non-disclosure created a real possibility that the jury might reasonably have reached a different verdict.

This consequences test is distinct from the test governing disclosure. Material must be disclosed if it might materially weaken the Crown case or materially strengthen the defence case. All police statements of witnesses on the Crown list fall within that duty.

The appellant was convicted of attempted murder after a trial in which identification was crucial. The Crown did not disclose police statements in which an eyewitness had expressed uncertainty after two identification parades and had referred to another possible assailant.

The Scottish Criminal Cases Review Commission referred the case to the High Court of Justiciary under section 194 B of the Criminal Procedure (Scotland) Act 1995. The appeal court held that the non-disclosure caused no unfair trial or miscarriage of justice: [2008] HCJAC 53.

The appeal concerned whether the High Court had used the correct legal test. The Supreme Court could determine that question as part of the remedy for the devolution issue, but could not review the High Court’s application of the test to the facts.

1. The appeal was dismissed unanimously. Lord Hope gave the leading judgment. Lord Rodger and Lord Brown delivered concurring judgments, and Lord Walker and Lord Kerr agreed with the principal reasoning.

2. The test governing whether material must be disclosed differs from the test governing the consequences of non-disclosure. Material must be disclosed where it might materially weaken the Crown case or materially strengthen the defence case. Police statements of every witness on the Crown list must therefore be disclosed. The Crown accepted that its failure to disclose the eyewitness’s statements infringed article 6(1) of the European Convention on Human Rights.

3. Per Lord Hope, a disclosure failure does not itself establish that the trial was unfair. At the appeal stage, the court must assess the significance and consequences of the failure in the context of what occurred at the trial. The questions whether the trial was unfair and whether there was a miscarriage of justice run together.

4. The operative test is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have reached a different verdict. The verdict should not stand where the jury might reasonably have taken a different view of the relevant issue had the withheld material been disclosed. Lord Rodger stressed that the possibility must be real rather than fanciful. Lord Brown expressed the same inquiry as whether the defence lost a real possibility of securing a different outcome.

5. Lord Hope explained that Lord Rodger’s earlier formulation in Holland v HM Advocate concerning what might possibly have affected a verdict addressed the materiality of information, not the ultimate fairness test. The High Court was right to reject the suggestion that this language imposed a low threshold. Although its formulation of a “real risk of prejudice” required further explanation, its subsequent reasoning showed that it had applied the correct test.

6. The identification of the correct test formed part of the remedy for the devolution issue and was reviewable by the Supreme Court. Under section 124(2) of the Criminal Procedure (Scotland) Act 1995, however, application of that test to the facts belonged exclusively to the High Court of Justiciary. The Supreme Court therefore did not reconsider the factual merits.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously. It held that the High Court of Justiciary had adopted the correct legal test, while the test’s application to the facts was not reviewable.

2. High Court of Justiciary: Held that the non-disclosure did not deny the appellant a fair trial or cause a miscarriage of justice: [2008] HCJAC 53; 2009 JC 6. It subsequently granted leave to appeal on the devolution issue.

3. Scottish Criminal Cases Review Commission: Referred the conviction to the High Court of Justiciary under section 194 B of the Criminal Procedure (Scotland) Act 1995.

4. High Court of Justiciary at Glasgow: Convicted the appellant of assault and attempted murder and sentenced him to eight years’ imprisonment.