Fraser v Her Majesty’s Advocate: SC 25 May 2011

The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider whether there should be a retrial. As an appeal in a criminal matter, the Supreme Court had no jurisdiction over matters not raising a devolution issue. The issue of non-discloure went as to the fairness of the trial and therefore raised a human rights and in turn a devolution issue which had been determined by the Appeal Court. The test was set down in McInnes with a threshold first stage and then a test of the consequences. The decision by the Appeal Court to refuse to allow the devolution issue to be received itself amounted to a determination of that issue. The court had applied the wrong test, that from Cameron which was more stringent.

Lord Hope, Deputy President, Lord Rodger, Lord Brown, Lord Kerr, Lord Dyson
[2011] UKSC 24, 2011 SLT 515, 2011 SCL 582, UKSC 2009/0192
Bailii, Bailii Summary, SC Summary, SC
European Court of Human Rights 8, Scotland Act 1998 Sch 6, Criminal Procedure (Scotland) Act 1995 106
England and Wales
See alsoFraser v Her Majesty’s Advocate HCJ 6-May-2008
The defendant appealed against his conviction for the murder of his wife, saying that his conviction was based on a his house first being searched and no jewelry found, but then on being later searched rings said to have been taken from the deceased . .
See alsoFraser v Her Majesty’s Advocate HCJ 24-Mar-2009
The court was asked for leave for the defendant to take his appeal against his murder conviction to the Board of the Privy Council.
Held: Leave was refused. Lord Osborne said that the identification of the devolution issue depended on the . .
See alsoFraser v HM Advocate HCJ 13-Jul-2010
. .
CitedMcInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
CitedAllison v Her Majesty’s Advocate SC 10-Feb-2010
(Scotland) The defendant appealed against his conviction saying that the prosecution had introduced at trial a statement of a witness who had died before the trial, but they had failed to disclose that he had several convictions and outstanding . .
CitedDownie v HM Advocate HCJ 1952
. .
CitedSmith v HM Advocate HCJ 1952
. .
CitedSlater v HM Advocate HCJ 1928
. .
CitedCadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
CitedHer Majesty’s Advocate v Murtagh (the High Court of Justiciary Scotland) PC 3-Aug-2009
All police statements as a class must be disclosed to the accused. . .
CitedMcleod v Her Majesty’s Advocate (No 2) HCJ 19-Dec-1997
In a criminal case, the duty of disclosure was an aspect of the role of the Crown. . .
CitedMcDonald v Her Majesty’s Advocate PC 16-Oct-2008
(The High Court of Justiciary Scotland) The defendant sought to appeal against his convictions for murder and and assault. The HCJ in Scotland had refused to receive a devolution minute.
Held: The refusal was itself sufficient to give the . .
CitedEdwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
CitedJasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
CitedSinclair v Her Majesty’s Advocate PC 11-May-2005
(Devolution) The defendant complained that the prosecutor had failed to disclose all the witness statements taken, which hid inconsistencies in their versions of events.
Held: The appeal was allowed. It was fundamental to a fair trial that the . .
CitedDowsett v The United Kingdom ECHR 24-Jun-2003
The applicant had been convicted along with others of a murder. He now alleged that the police had refused to disclose evidence which would have supported his defence. Some had been disclosed but some still withheld on public interest grounds by the . .
CitedGallacher v HM Advocate HCJ 1951
The question for the court in answering whether an appeal an appeal should be available when new evidence had emerged was whether it was reasonably satisfied that, if the additional evidence was before the jury, it would not have convicted. . .
CitedCameron v HM Advocate 1991
. .
CitedElliott (Angus Gordon) v HM Advocate HCJ 24-Mar-1995
New evidence on an appeal was admissible only in accordance with the Act. . .
CitedHay v Her Majesty’s Advocate HCJ 9-Dec-2010
. .
CitedAbdelbaset Ali Mohmed Al Megrahi v Her Majesty’s Advocate HCJ 14-Mar-2002
. .

Cited by:
CitedHer Majesty’s Advocate v P SC 6-Oct-2011
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . .

Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice, Human Rights, Constitutional

Updated: 31 October 2021; Ref: scu.440440