Macklin v Her Majesty’s Advocate

The Supreme Court considered whether the Crown (the Lord Advocate) had acted incompatibly with article 6(1) of the European Convention on Human Rights by failing to disclose material evidence and by leading and relying on dock identification evidence without earlier identification parades. The court treated the questions as compatibility issues under section 288AA of the Criminal Procedure (Scotland) Act 1995 as amended by the Scotland Act 2012 and related transitional provisions.

The Court applied the two-stage test from McInnes v HM Advocate: (1) whether undisclosed material ought to have been disclosed because it might have materially weakened the Crown case or materially strengthened the defence; and (2) if so, whether there was a real possibility that the jury would have reached a different verdict. The High Court had accepted that three statements ought to have been disclosed but had concluded, applying the McInnes test, that there was no real possibility of a different verdict. The Supreme Court held that the High Court identified and applied the correct legal test and that this court had no jurisdiction to re‑evaluate how the High Court applied that test to the facts. The court also rejected the argument that the combination of non‑disclosure and dock identification rendered the trial unfair, distinguishing Holland. The appeal was dismissed.

Background and facts.

• The appellant was convicted at trial on 26 September 2003 of possession of a handgun contrary to section 17 of the Firearms Act 1968 and of assaulting two police officers by repeatedly presenting the handgun at them. The primary issue at trial was identification of the gunman; two police officers made dock identifications and their evidence was challenged. The trial judge warned the jury about risks of visual identification evidence but did not give directions specific to dock identifications in the practice then applied.
• Following later changes in disclosure practice and decisions of the Judicial Committee, the Crown disclosed previously unused material including statements from witnesses whose descriptions or failure to identify were inconsistent with the appellant, and fingerprint evidence linking another person to the abandoned vehicle.

Procedural posture and relief sought.

• The appellant was granted leave to appeal to the High Court of Justiciary (the appeal court refused the appeal: [2013] HCJAC 80). The appellant obtained permission to appeal to the Supreme Court under section 288AA of the Criminal Procedure (Scotland) Act 1995, seeking a determination that the Lord Advocate had acted incompatibly with article 6(1) by non‑disclosure and by leading dock identifications without prior parades. The Supreme Court’s role was confined to determining that compatibility issue, after which the matter would be remitted to the High Court.

Issues framed by the court.

1. Whether the undisclosed material ought to have been disclosed under the test in McInnes (i.e. might it have materially weakened the Crown case or materially strengthened the defence).
2. If disclosure ought to have been made, whether there was a real possibility that the jury would have reached a different verdict.
3. Whether leading dock identification evidence without prior identification parades, in the context of the undisclosed material, resulted in a breach of article 6(1).

Court’s reasoning and conclusion.

• The Supreme Court reviewed the legal framework created by the Scotland Act 2012 and the transitional order which converted certain devolution issues into compatibility issues. It summarised the two‑stage McInnes test and the approach of the European Court of Human Rights in Edwards and Mansell concerning remedial appellate review.
• The High Court had accepted that three statements should have been disclosed but had applied the McInnes second limb and concluded there was no real possibility of a different verdict. The Supreme Court held that it could assess whether the High Court identified the correct legal test, but not re‑examine how that test was applied to the facts. The Court found that the High Court had both identified and applied the McInnes test.
• The court rejected the appellant’s submissions that the High Court’s factual conclusions were manifestly wrong or that Holland required a different outcome. It held that Holland involved different circumstances and that the established test of "real possibility" governed the present case.
• The Supreme Court therefore dismissed the appeal, concluding there was no jurisdiction to substitute its own factual appraisal and that the High Court had not erred in law in its approach.

The appeal is dismissed. The Supreme Court held that the questions constituted compatibility issues under section 288AA of the Criminal Procedure (Scotland) Act 1995 as amended; the High Court had identified and applied the correct two‑stage test from McInnes for non‑disclosure (whether undisclosed material ought to have been disclosed and whether there was a real possibility of a different verdict) and this court had no jurisdiction to re‑determine the High Court’s application of that test to the facts. The court also rejected the submission that the combination of non‑disclosure and dock identification rendered the proceedings incompatible with article 6(1), distinguishing Holland.

Appeal from the High Court of Justiciary, Appeal Court ([2013] HCJAC 80; 2013 SCCR 616), which refused the appellant's appeal. The appellant was granted permission to appeal to the Supreme Court under section 288AA of the Criminal Procedure (Scotland) Act 1995 (as inserted by section 36 of the Scotland Act 2012).