Supreme Court: Failure to disclose evidence did not breach Art 6

Macklin v Her Majesty’s Advocate [2015] UKSC 77, 16th December 2015 – read judgment

The Supreme Court has unanimously dismissed an appeal against a decision of Scotland’s High Court of Justiciary (available here) in which it refused to overturn a criminal conviction on the basis that the non-disclosure of evidence breached the appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).

The Facts

On 26th September 2003, Paul Macklin was convicted of possessing a handgun in contravention of section 17 of the Firearms Act 1968 and of assaulting two police officers by repeatedly presenting the handgun at them. At trial, the key issue was the identification of the gunman, with both police officers identifying the appellant in the dock. Two witnesses testified that the man in the dock was not the gunman, however, their evidence was undermined for various reasons including discrepancies in police statements and unreliable alibis.

Several years later, following a change in practice regarding the disclosure of evidence, the Crown disclosed the fact that a fingerprint from another individual with a serious criminal record had been found in a car abandoned at the scene of the crime. The Crown also disclosed statements from six further individuals who had seen the incident.

The High Court’s Decision

Macklin appealed against his conviction on the grounds that the Crown had failed to disclose material evidence, and that by leading and relying on dock identifications without having disclosed that evidence and without an identification parade, the Lord Advocate had infringed his rights under Article 6 ECHR.

The Appeal Court of the High Court of Justiciary dismissed his appeal. The court held that the fingerprint evidence and three of the undisclosed statements neither materially weakened the Crown case nor materially strengthened the defence. Whilst the other three statements should have been disclosed, there was not a real possibility of a different verdict had there been disclosure. Finally, leading dock identifications from the two police officers without an identification parade did not infringe Article 6.

The Supreme Court

The Supreme Court first dealt with the issue of its jurisdiction. Under section 124(2) of the Criminal Procedure Scotland Act 1995, every interlocutor (decision) and sentence of the High Court of Justiciary is final, conclusive, and not subject to review by any court. However, under section 288ZB of the 1995 Act, as inserted by section 35 of the Scotland Act 2012, the Supreme Court has jurisdiction to hear an appeal concerning the question of whether a public authority has acted compatibly with the ECHR. As the question raised by the appellant was whether the conduct of the prosecution was compatible with Article 6 the Supreme Court had jurisdiction to hear the matter.

As the European Court of Human Rights explained in Edwards v United Kingdom the question of whether a failure of disclosure breached Article 6 had to be considered in light of the proceedings as a whole. Translating the Strasbourg approach into domestic law in McInnes v HM Advocate (available here), Lord Hope set out two stages to the analysis. First, should the material which had been withheld from the defence have been disclosed? The test here was whether the undisclosed evidence might have materially weakened the Crown case or materially strengthened the defence. Second, taking into account all of the circumstances, was there a real possibility that the jury would have arrived at a different verdict in the event of disclosure?

The appellant challenged the High Court’s conclusion that some of the undisclosed material did not have to be disclosed under Article 6 on the basis that under current Crown practice the evidence would be disclosed. The Supreme Court dismissed this argument. For Lord Reed the argument was a “non sequitur” and Lord Gill described it as “specious”. The fact that the evidence would now be disclosed did not mean that non-disclosure breached Article 6.

Regarding the evidence which should have been disclosed, the appellant argued that the High Court had failed to apply the second part of the test from McInnes. The Supreme Court also rejected this argument. As it was confined to compatibility issues, the Supreme Court could only ask whether the High Court had applied the correct test, not whether it had applied the test correctly. The Crown’s submission to the High Court was expressly founded on the McInnes test and, by reciting the words of the test, the court made clear that it had applied it. The appellant tried to argue that the High Court’s conclusions on the second part of the McInnes test were so manifestly wrong that it had not in reality applied that test. However, this was essentially an argument that the High Court had applied the test incorrectly and the Supreme Court was not prepared to entertain it. The High Court had applied the correct tests for the purposes of Article 6 and found that the appellant’s trial was fair.

In the end, the role of the Supreme Court was limited. As Lord Reed made clear, the court was not sitting as a criminal appeal court exercising a general power of review. The Article 6 issues had been authoritatively determined by the High Court of Justiciary when it dismissed Macklin’s appeal against his conviction. All the Supreme Court could do was ensure that in exercising its appellate function, the High Court had applied the appropriate Article 6 tests as set out in McInnes.

Bank Mellat and disclosure in closed material proceedings

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2015] EWCA Civ 105, 23 October 2015  read judgment

Bank Mellat is an Iranian bank, initially subjected to a 2009 order which prohibited anybody in the UK from dealing with it – until the Supreme Court quashed it:  here, and my posts here and here.  

The Treasury tried again, by orders made in 2011 and 2012 addressed at all Iranian banks, not just Bank Mellat. The EU has now taken over regulation of these banks.

In the current proceedings, the Bank seeks to set the 2011 and 2012 orders aside. These restrictions are, the Treasury says, addressed at the financing of Iran’s nuclear programme, in which all Iranian banks are complicit. Bank Mellat denies this, and the conundrum in the case is how to make sure that the challenge is fairly tried.  Collins J (my post here) thought that the Treasury had not revealed enough about its case, and, in substance, on appeal the CA agreed.

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Supreme Court on EU and ECHR proportionality – back to basics

seo-marketing-320x200R (ota Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015 (see judgment)

The Supreme Court has reminded us, in a tour de force by Lord Reed, that there is no such thing as one-stop proportionality. It varies between ECHR and EU law, and the tests of EU proportionality then vary according to the nature of the EU issue in play.

And all this in a case about trying to improve standards for barristers’ advocacy.

Barristers challenged the Quality Assurance Scheme for Advocates or QASA, on EU grounds. QASA requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.

Its EU-ness arises in this way.

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‘Killer Robots’ and ‘Conversion Therapies’ – The Human Rights Round-up

A scene from the 2003 film Terminator 3: Rise of the Machines

This week’s Round-up is brought to you by Alex Wessely.

In the news:
Military chiefs have criticised the influence of Human Rights law in a report published this week, arguing that the “need to arrest and detain enemy combatants in a conflict zone should not be expected to comply with peace-time standards”. This follows a series of cases over the years which found the Ministry of Defence liable for human rights violations abroad, culminating in allegations of unlawful killing in the Al-Sweady Inquiry that were judged “wholly without foundation” in December.

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No entitlement to human rights damages after ‘caste discrimination’ case collapse

Photo via Guardian.co.uk

Photo via Guardian.co.uk

Begraj v Secretary of State for Justice [2015] EWHC 250 (QB) – Read judgment

Adam Wagner acted for the Secretary of State in this case. He is not the author of  this post.

The High Court has ruled that when long-running employment tribunal hearing collapsed as the result of the judge’s recusal due to apparent bias the claimants in the action could not obtain damages for wasted costs under section 6 of the Human Rights Act (HRA) 1998 (specifically Article 6, the right to a fair trial) or the EU Charter.

The High Court confirmed that the County Court had acted lawfully in striking out the claim for having no reasonable prospects of success and for being an abuse of process. The state immunity for judicial acts in section 9(3) HRA 1998 applied, and in any event there had been no breach of Article 6 as the judge’s recusal preserved the parties’ Article 6 rights.  Continue reading

The worrying new anti-terrorism measures that are set to become law – Angela Patrick

Credit: guardian.co.uk

Credit: guardian.co.uk

The Counter-Terrorism and Security Bill begins its final stages in the House of Lords today. This blog considered the Bill on its introduction to the Lords. In the interim, both the Joint Committee on Human Rights and the Constitution Committee of the House of Lords have reported, both recommending significant amendments.

Despite repeat flurries of excitement as a coalition of Peers suggest time and again that most of the controversial Communications Data Bill – popularly known as the Snoopers’ Charter – might be a late-stage drop in; the press has, perhaps regrettably, shown little interest in the Bill.

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“Lamentable”, “egregious” and “wholly indefensible”: High Court lambasts local authority’s conduct of care proceedings

imgres-1Northamptonshire County Council v AS, KS and DS [2015] EWFC 7 – read judgment

A Family Division judge has awarded damages under the Human Rights Act against a local authority in what he described as an “unfortunate and woeful case” involving a baby taken into foster care. Mr Justice Keehan cited a “catalogue of errors, omissions, delays and serial breaches of court orders” by Northamptonshire County Council. Unusually, the judge decided to give the judgment in this sensitive case in public in order to set out “the lamentable conduct of this litigation by the local authority.

On 30 January 2013, the local authority placed the child (known as ‘DS’) with foster carers. He was just fifteen days old. In the weeks prior to DS’s birth, his mother’s GP had made a referral to the local authority due to her lack of antenatal care and because she claimed to be sleeping on the street. The mother then told a midwife that she had a new partner. He was a heroin addict.

After the birth DS’s mother avoided seeing her midwife. She frequently moved addresses and conditions at home were exceedingly poor. Three days before DS was taken into care, his mother told social workers that her new partner was being aggressive and threatening to her. She reported that he was leaving used needles around the house. Continue reading