Murder, miscarriage of justice and Scots judicial autonomy

27 May 2011 by Rosalind English

Fraser v Her Majesty’s Advocate [2011] UKSC 24 (25 May 2011)  – Read judgment

The Supreme Court has had to consider (for the second time in a month) the ticklish question of what constitutes a “miscarriage of justice”.

The business is rendered more ticklish because this was a case being handled by the High Court of Justiciary, the court of last resort in all criminal matters in Scotland.

Our previous post questioned whether the finding of a miscarriage of justice entitled the individual, whose conviction is quashed, to compensation for the slur on their innocence. Here the Court scrutinises the actual diagnosis of a miscarriage of justice. They had to do so in this case because their jurisdiction depended on it. This needs some explaining.

A devolution issue

This was a Scottish criminal case and  the Supreme Court would normally have had no business dealing with it (see section 124(2) of the Criminal Procedure (Scotland) Act 1995) The Supreme Court’s appellate jurisdiction  extends only to a consideration of a “devolution issue” , including whether an exercise of a function by a member of the Scottish Executive is  incompatible with any of the Convention rights.

Parliament, through Schedule 6 to the Scotland Act 1998, has given the Supreme Court jurisdiction in relation to devolution issues arising in criminal proceedings. It has been suggested that this was to ensure that a consistent and coherent view upon them could be given across the UK.

Miscarriage of Justice

The facts of the case have been set out in our post reporting the decision of the Supreme Court. It will be remembered that the prosecution made the cornerstone of its case the reappearance of the appellant’s deceased wife’s rings at his home some time after the original police search. The Advocate Depute (prosecutor in Scotland) then  invited the jury to draw incriminatory inferences from that fact – i.e. that the accused had so staged things as to suggest to the police that she had deliberately walked out of her life. However this direction was given in circumstances where the prosecution  ought to have known of a body of evidence which would render the invitation to a jury to draw such inferences inappropriate (evidence that the rings had been there all the time). The question was whether the Crown infringed the appellant’s rights in terms of article 6(1) of the Convention.

The appellant lodged grounds for appeal in the light of this, submitting that there had been a miscarriage of justice because of the undisclosed evidence.

If the fresh evidence or undisclosed material, when added to the original evidence, suggests to the appeal court that the original trial jury would still reasonably have convicted it does not amount to a miscarriage of justice. But if it is of such overwhelming importance that it would have affected the whole way in which the trial was conducted, the court has no alternative but to conclude that there has been a miscarriage of justice, and then decide simply whether or not to order a retrial.

This of itself does not require the High Court of Justiciary (the Scottish Criminal Court of Appeal) to identify the test that is to be applied in appeals which do not raise a devolution issue. However if Article 6 is engaged, it does became a devolution issue. The Scottish Appeal Court did not think that Article 6 was involved, and dismissed the devolution minute.

The appellant was given leave to appeal to the Supreme Court on this point.

The Supreme Court ruling

Appeal upheld

The question before the Supreme Court was whether the tests which the Scottish Court applied when it decided to dismiss this appeal as if it were a fresh evidence appeal were in essence the same as it would have had to have applied if it had entertained the argument that there had been a violation of the appellant’s article 6 Convention rights. The problem it seemed was that the Scottish Court applied a more stringent test for miscarriage of justice.

The leading authority for assessing whether new or disclosed evidence is such that a miscarriage of justice can be said to have taken place is  McInnes v HM Advocate,  which asks whether the material might have materially weakened the Crown case or materially strengthened the case for the defence.  The test applied to the appellant’s grounds of appeal in this case was that laid down in Cameron v HM Advocate 1991 JC 2. This requires that the additional evidence should be at least capable of being described as important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or a material part to play in, the jury’s determination of a critical issue at the trial.

The Supreme Court therefore found that the failure by the Advocate Depute to disclose to the defence material which, under McInnes, 
ought to have been disclosed to it, was incompatible with the accused’s Article 6 right to a fair trial: Rowe and Davis v United Kingdom (2000) 30 EHRR 1, para 60. The approach of the Appeal Court could not, in other words, be  reconciled with the McInnes test, which requires an appeal court to concentrate on the case as presented at trial, rather than as it might have been presented. An appeal court is not to deal with the case as if it were a new jury trying the case for the first time. There was a real possibility, in light of the undisclosed evidence, that the jury at this trial would have arrived at a different verdict.

It remitted the case to a differently constituted Appeal Court to consider whether to grant authority for a new prosecution and then, having considered that point, to quash the conviction.

The Scottish question

The Scottish authorities are not entirely at ease with the right of the UK Supreme Court to rule on Scottish criminal cases. Commenting in an informal consultation paper on devolution issues, the  Office for the Advocate General for Scotland  noted last year that

 The Supreme Court now has jurisdiction in relation to criminal matters, which it would not otherwise have, and  that jurisdiction, because it is different from the more general jurisdiction of the High Court of Justiciary, may result in the quashing of a conviction on the basis of criteria and tests different from those which would be applied by the High Court of Justiciary

It is perhaps unsurpising that the devolution issue procedure can be burdensome on the parties, the courts and the Advocate General. Since devolution, in excess of 10,000 devolution issues have been intimated to the Advocate General.  As the Consultation Paper noted, “it is unlikely that the framers of the Scotland Act had envisaged that devolution issues would be raised in prosecutions to anything like the extent to which they have.”

The Scottish First Minister Alex Salmond is reported to have “challenged” the right of the UK Supreme Court to rule on Scottish criminal cases. According to the BBC coverage of the Fraser case,  he said  the UK court should have “no role” in Scottish criminal law.

Mr Salmond stressed he was offering no opinion on the case itself, but pointed out that Scotland’s criminal court system had been distinct for centuries, with the High Court the final arbiter.

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