Fraser v Her Majesty’s Advocate (Scotland)

Where the prosecution fails to disclose material which might materially weaken its case or strengthen the defence, the accused’s right to a fair trial is infringed. The resulting conviction must be set aside if, taking all the circumstances of the trial into account, there is a real possibility that the jury would have returned a different verdict.

The appellate court must assess the trial that actually occurred. It cannot reconstruct a materially different prosecution case or decide the appeal as though it were a new jury. The fresh-evidence threshold under section 106 of the Criminal Procedure (Scotland) Act 1995 is more stringent and narrower than the disclosure test. It cannot substitute for the Convention analysis.

The appellant was convicted of murdering his wife. The prosecution treated his alleged return of her rings to the family home as the cornerstone of its circumstantial case. The trial judge directed the jury that conviction was unavailable unless they found that the appellant had returned the rings.

After trial, the Crown disclosed police precognitions indicating that rings had been seen in the house within hours of the deceased’s disappearance. The High Court of Justiciary refused to receive a devolution minute and dismissed the conviction appeal by applying the fresh-evidence test under section 106 of the Criminal Procedure (Scotland) Act 1995: [2008] HCJAC 26. It later refused leave to appeal as incompetent: [2009] HCJAC 27.

The Supreme Court considered whether the High Court’s treatment of the non-disclosure issue satisfied the tests governing the article 6 right to a fair trial.

1. The appeal was allowed. Lord Hope, with whom Lord Rodger, Lord Kerr and Lord Dyson agreed, held that the undisclosed police material might materially have weakened the Crown case or strengthened the defence. It therefore ought to have been disclosed. Its non-disclosure breached the appellant’s article 6 right.

2. The disclosure threshold and the consequences of non-disclosure are separate questions. The first asks whether the withheld material might materially weaken the prosecution case or strengthen the defence. If that threshold is crossed, the court asks whether, taking all the circumstances of the actual trial into account, there is a real possibility that the jury would have returned a different verdict.

3. The fresh-evidence threshold derived from section 106 of the Criminal Procedure (Scotland) Act 1995 and Cameron v HM Advocate was more stringent and narrower than the disclosure threshold. The Appeal Court’s use of that test could not be reconciled with the Convention test stated in McInnes v HM Advocate.

4. The consequences assessment must concentrate on the case as presented at trial. An appellate court may consider how disclosure would have affected that case, but it cannot replace the prosecution’s trial theory with a different theory or act as a new jury. Here, disclosure would have undermined the cornerstone of the prosecution case, opened material lines of cross-examination and removed the force of the contention that the appellant could not explain the rings’ return. Given the trial judge’s direction, there was a real possibility of a different verdict.

5. Lord Brown agreed in the result, although he would otherwise have preferred to remit the fairness question to the Appeal Court. He did not dissent because the majority regarded the conclusion that the verdict might have differed as inescapable. He further suggested, obiter, that the same ultimate miscarriage-of-justice test was logically applicable to fresh-evidence appeals.

6. The case was remitted to a differently constituted Appeal Court to decide whether to authorise a new prosecution under section 119 of the Criminal Procedure (Scotland) Act 1995 and, after deciding that question, to quash the conviction.

1. United Kingdom Supreme Court: Allowed the appeal under paragraph 13 of Schedule 6 to the Scotland Act 1998. The case was remitted for a decision on a new prosecution and the quashing of the conviction: [2011] UKSC 24.
2. High Court of Justiciary: Refused leave to appeal to the Judicial Committee as incompetent: [2009] HCJAC 27, 2009 SCCR 500.
3. High Court of Justiciary: Refused to receive the devolution minute and dismissed the conviction appeal under the fresh-evidence provisions of section 106 of the Criminal Procedure (Scotland) Act 1995: [2008] HCJAC 26, 2008 SCCR 407.
4. High Court of Justiciary at first instance: Convicted the appellant of murder and imposed life imprisonment with a punishment part of 25 years.