McInnes 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 become standard practice.
Held: The test for whether should have been disclosed is to ask whether there was a real possibility that, had the jury been shown the evidence not disclosed, they would have reached a different verdict. Disclosure should be made if the statement might have materially weakened or strbengthened either prosecution or defence cases. Under that test, all police statements should be disclosed. However, before a trial could be declared unfair under article 6 on appeal, the court should look to the significance of what had not been disclosed. It was axiomatic that an unfair trial created a miscarriage of justice. If there had been a real possibility of a different outcome, the jury’s verdict should not be allowed to stand. The appeal court had however already applied the correct standard, and the appeal failed.
Lord Brown said: ‘What, then, in the context of an undisclosed statement, makes a trial unfair? This, ultimately, is the determinative question in the case. I would answer it as follows. The trial will be adjudged unfair if, but only if, the appeal court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence. This in turn depends upon whether the appeal court regards the non- disclosure as having denied the defence the real possibility of securing a different outcome. In short, in a case such as this, the appeal should be allowed if the court decides that, had defence counsel been in a position to make use of the undisclosed statement, the jury might reasonably have come to a different conclusion, otherwise not. It is that which must decide whether the jury’s verdict should be allowed to stand. I understand Lord Hope’s approach in para 22 to be entirely consistent with this formulation.’

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Kerr
[2010] UKSC 7, UKSC 2009/0128, 2010 SLT 266, 2010 GWD 8-136, [2010] UKHRR 287, 2010 SC (UKSC) 28
Bailii, Times, SC, SC Summ, Bailii Summary
Criminal Procedure (Scotland) Act 1995, European Convention on Human Rights 6
Appeal fromMcInnes v Her Majesty’s Advocate HCJ 26-Sep-2008
The appellant appealed his conviction for a serious assault with the support of the Scottish Criminal Cases Review Commission. He complained that documents should have been disclosed to his defence team.
Held: The failure to disclose certain . .
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 . .
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 . .
CitedHolland v Her Majesty’s Advocate (Devolution) PC 11-May-2005
The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure.
Held: The combination of several failings meant that the defendant . .
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. . .
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 . .
CitedRuddy and others v Procurator Fiscal, Perth and Another; Robertson v Higson PC 6-Feb-2006
(High Court of Justiciary Scotland) . .
CitedMontgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .
CitedSpiers v Ruddy PC 12-Dec-2007
Limits to Powers in Devolution Cases
Mr Spiers had complained as to the competency of two temporary sheriffs called to hear case against him, saying that the temporary nature of their appointments did not allow them to constitute an independent tribunal. He now complained that the . .
CitedMills v HM Advocate and Another PC 22-Jul-2002
(The High Court of Justiciary) The defendant appealed on the basis that the delay in the sentencing process had resulted in an infringement of his human rights.
Held: The appeal itself had been without merit. The delay had been to such an . .
CitedKelly v Her Majesty’s Advocate HCJ 23-Nov-2005
A statement to the police by the complainer was not made available to the defence. . .

Cited by:
CitedFraser 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 . .
CitedMcCarthy, Regina (on The Application of) v The Visitors To The Inns of Court and Another CA 20-Jan-2015
The court was asked whether the decision of the Visitors to the Inns of Court dismissing Mr McCarthy’s appeal from the Bar Disciplinary Tribunal should be quashed with a view to the underlying matter being remitted to the Tribunal. The Tribunal . .
CitedBrown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .
CitedMacklin v Her Majesty’s Advocate (Scotland) SC 16-Dec-2015
Appeal against conviction (in 2003) after release of undisclosed material helpful to the defendant, including an eye witness decsription incompatible with the defendant.
Held: The court considered the developing issues as to compatibility . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 30 November 2021; Ref: scu.396704