Fraser v Her Majesty’s Advocate (Scotland)

The Supreme Court allowed the appellant's devolution appeal because material precognition evidence held by the Crown (from PC Neil Lynch and WPC Julie Clark) had not been disclosed before trial and that withheld material might have materially weakened the Crown's circumstantial case. The court applied the two-part test discussed in McInnes (whether the undisclosed material might have materially weakened the Crown case or strengthened the defence, and whether there was a real possibility the jury would have reached a different verdict) and concluded that the Appeal Court had applied the wrong (fresh-evidence/Cameron) test. The conviction was quashed and the question whether a retrial should be authorised was remitted to the High Court of Justiciary.

Background and facts: The appellant, Nat Gordon Fraser, was convicted in January 2003 of the murder of his wife, Arlene Fraser. Central to the Crown's circumstantial case was the discovery on 7 May 1998 of three rings in the matrimonial home; the Crown invited the jury to infer that the appellant had removed the rings from the deceased's body and returned them to the bathroom to create the impression she had left the house. The trial judge directed the jury that, if they were not satisfied that the appellant had placed the rings in the bathroom on 7 May, they could not convict.

After conviction, it emerged that a precognition taken from PC Neil Lynch on 3 July 2002 (and later supported by precognition from WPC Julie Clark) stated that the officers had seen rings and jewellery in the house on the night of 28–29 April 1998. This information had not been in their notebooks or earlier statements and had not been disclosed to the defence.

Procedural history: The appellant appealed under section 106 of the Criminal Procedure (Scotland) Act 1995 on grounds including fresh evidence and non-disclosure. The Appeal Court treated the matter as a fresh-evidence appeal and refused the appeal on 6 May 2008 ([2008] HCJAC 26). An application for leave to appeal that refusal was refused by the Appeal Court as incompetent ([2009] HCJAC 27). The Supreme Court granted special leave to entertain a devolution issue under paragraph 13 of Schedule 6 to the Scotland Act 1998 and heard the appeal in March 2011.

Nature of the application: The appellant sought to raise a devolution issue that the Crown had been in possession of material evidence which it ought to have disclosed, thereby infringing the appellant's article 6 Convention right to a fair trial, and that the Crown's presentation of the case on an inaccurate premise had further infringed that right.

Issues framed by the court:

• Whether the withheld precognition material should have been disclosed to the defence (the threshold disclosure question).
• If nondisclosure occurred, whether the failure rendered the trial unfair under article 6 — specifically whether there was a real possibility the jury would have reached a different verdict.
• Whether the Appeal Court erred in applying the Cameron fresh-evidence test under section 106 rather than the McInnes disclosure/fair-trial test.

Reasoning and conclusion: The court explained and applied the two-part McInnes approach: first, whether the undisclosed material might have materially weakened the Crown case or strengthened the defence (the disclosure threshold), and second, whether, taking the trial as it actually was run into account, there was a real possibility the jury would have arrived at a different verdict (the consequences test). The court held that the evidence that rings had been present in the house the night of 28–29 April was plainly material to the Crown's cornerstone theory and ought to have been disclosed. Applying McInnes, the court concluded there was a real possibility the jury would have reached a different verdict had the material been disclosed. The Appeal Court’s exclusive application of the Cameron fresh-evidence test was therefore inappropriate for the devolution issue and led to the wrong outcome. The Supreme Court allowed the appeal, remitted the question of authority for a new prosecution to the High Court of Justiciary, and proposed that the conviction be quashed following that determination.

Appeal allowed. The Supreme Court held that the Crown had failed to disclose material precognitions from PC Lynch and WPC Clark which might have materially weakened the Crown case and that, applying the two-part McInnes test, there was a real possibility the jury would have reached a different verdict. The Appeal Court had applied the wrong fresh-evidence test (Cameron) rather than the Convention-based McInnes test. The matter was remitted to the High Court of Justiciary to decide whether authority for a new prosecution should be granted and thereafter to quash the conviction.

Convicted at High Court of Justiciary, Edinburgh, January 2003; appeal under section 106 Criminal Procedure (Scotland) Act 1995 lodged 18 December 2003 and leave granted. Appeal Court refused to receive the devolution minute and treated the case as a fresh-evidence appeal; appeal refused by the Appeal Court on 6 May 2008 ([2008] HCJAC 26, 2008 SCCR 407). Application for leave to appeal to the Privy Council (later Appeal Court leave point) refused as incompetent on 24 March 2009 ([2009] HCJAC 27, 2009 SCCR 500). Special leave to appeal on the devolution issue was granted by this Court in 2010, and the Supreme Court heard and allowed the appeal on 25 May 2011.