Macklin v Her Majesty’s Advocate

On a Scottish criminal compatibility appeal concerning non-disclosure, the Supreme Court may determine the legal test required by article 6(1) and whether the High Court identified and applied that test. It may not review whether the High Court applied the test correctly to the facts.

Undisclosed material must first be assessed by asking whether it might materially have weakened the prosecution case or strengthened the defence case. If so, the court must consider the proceedings as a whole and ask whether there is a real possibility that the jury would have returned a different verdict. Current prosecutorial disclosure practice does not determine whether article 6(1) required disclosure at the time of trial.

The appellant was convicted of possessing a handgun contrary to section 17 of the Firearms Act 1968 and assaulting two police officers. Identity was the only disputed issue. The officers identified him at trial, but no identification parade had been held.

Several years later, the Crown disclosed witness statements and fingerprint evidence bearing upon identification. The appellant contended that the non-disclosure, considered together with the dock identifications, had made his trial unfair under article 6(1).

The High Court of Justiciary refused his appeal in [2013] HCJAC 80. It found that three statements should have been disclosed, but that there was no real possibility of a different verdict. The central issues before the Supreme Court were whether the High Court had applied the correct legal test and whether the Supreme Court could review the High Court’s application of that test to the evidence.

1. Appeal dismissed unanimously. Lord Reed delivered the principal judgment, with which Lord Neuberger, Lady Hale, Lord Sumption, Lord Hughes and Lord Toulson agreed. Lord Gill gave a concurring judgment, with which the same members of the court agreed.

2. A failure of disclosure must be examined in the light of the proceedings as a whole, including appellate proceedings. The first question is whether withheld material might materially have weakened the Crown case or materially strengthened the defence case. If it might, the second question is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have returned a different verdict. The High Court had identified and applied both parts of that test.

3. The Crown’s current practice of making extensive disclosure did not define the requirements of article 6(1). The proposition that material should have been disclosed at trial merely because it would be disclosed under later practice was a non sequitur. The Convention question remained governed by the first limb of the test in McInnes v HM Advocate [2010] UKSC 7.

4. Under section 288AA of the Criminal Procedure (Scotland) Act 1995, the Supreme Court’s powers were exercisable only to determine the compatibility issue. It could decide whether the High Court adopted and applied the correct legal test. Section 124(2), however, made the High Court’s factual application of that test final. An allegation that the High Court had merely paid lip service to the test could not be used to disguise a challenge to the correctness of its factual assessment.

5. The comparison with Holland v HM Advocate [2005] UKPC D 1 did not assist. In that case, non-disclosure and dock identification had been considered separately by differently constituted courts, so their cumulative effect had not previously been assessed. Here, the High Court had considered the evidence as a whole, including the dock identifications. In addition, the governing consequence test was now the real-possibility test fixed in McInnes.

6. The compatibility issue was determined against the appellant. In accordance with section 288AA(3), the proceedings were required to be remitted to the High Court of Justiciary.

1. United Kingdom Supreme Court: Dismissed the compatibility appeal unanimously in [2015] UKSC 77 and, pursuant to section 288AA(3) of the Criminal Procedure (Scotland) Act 1995, required the proceedings to be remitted to the High Court of Justiciary.

2. High Court of Justiciary: Refused the appeal in [2013] HCJAC 80; 2013 SCCR 616. It held that three statements should have been disclosed but that there was no real possibility of a different verdict, and that leading the dock-identification evidence did not violate article 6(1).

3. High Court at Aberdeen: Convicted the appellant after trial of possessing a handgun and assaulting two police officers.