Sinclair 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 parties have equality of arms, but in a criminal trial the rights were entirely in the defendant. The prosecution had a duty to disclose to the defence anything material including ‘any evidence which would tend to undermine the prosecution’s case or to assist the case for the defence’, subject to only material properly withheld under pubic interest immunity. The decision as to why statements might be withheld was not just for the prosecuting authorities, but also for the courts. Here the police had not informed the prosecutors, the defence or the court. The defendant had been denied an opportunity to cross examine a prosecution witness and the trial was unfair. In this case the conflict might not have been apparent until trial when the witness made statements inconsistent with the undisclosed statements. The 1998 Act provided that no member of the Scottish executive, including the prosecution authorities had any power to do an Act inconsistent wth the Convention. Accordingly the conviction must fail.
Lord Hope of Craighead summarised the effect of the authorities: ‘First, it is a fundamental aspect of the accused’s right to a fair trial that there should be an adversarial procedure in which there is equality of arms between the prosecution and the defence. The phrase ‘equality of arms’ brings to mind the rules of a mediaeval tournament – the idea that neither side may seek an unfair advantage by concealing weapons behind its back. But in this context the rules operate in one direction only. The prosecution has no Convention right which it can assert against the accused. Nor can it avoid the accused’s Convention right by insisting that the duty does not arise unless the accused invokes it first. Secondly, the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused. For this purpose any evidence which would tend to undermine the prosecution’s case or to assist the case for the defence is to be taken as material. Thirdly, the defence does not have an absolute right to the disclosure of all relevant evidence. There may be competing interests which it is in the public interest to protect. But decisions as to whether the withholding of relevant information is in the public interest, cannot be left exclusively to the Crown. There must be sufficient judicial safeguards in place to ensure that information is not withheld on the grounds of public interest unless this is strictly necessary.’
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell
[2005] UKPC D2, 2005 SC (PC) 28, 2005 SLT 553, 2005 GWD 17-30, (2005) GWD 17-306, (2005) SCCR 446, 18 BHRC 527, [2005] HRLR 26, (2005) SLT 553
Bailii, PC
European Convention on Human Rights 6, Scotland Act 1998 57(2)
CitedEdwards and Lewis v United Kingdom ECHR 27-Oct-2004
E had been convicted of possession of heroin with intent to supply, and L of possession of counterfeit currency. In each case public interest certificates had been obtained to withold evidence from them. The judge had refused requests to exclude . .
Appeal fromAlvin Lee Sinclair v Her Majesty’s Advocate IHCS 1-Jul-2004
. .
CitedAlistair Mcleod v Her Majesty’s Advocate (No 2) HCJ 19-Dec-1997
A full court applied the guidance in Edwards -v- United Kingdom when considering the duty of the Crown to make disclosure under Scots law: ‘Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time to . .
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 . .
CitedR v Her Majesty’s Advocate and Another PC 1-Nov-2002
Section 57(2) provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the Convention rights. It is not open to the court if this subsection is breached to assess what the consequences of . .

Cited by:
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 . .
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 . .
CitedSecretary of State for Business, Innovation and Skills v Doffman and Another ChD 11-Oct-2010
The defendants applied for directors’ disqualification proceedings for the claim to be struck out or dismissed on the ground that the respondent had breached their rights to a fair trial under Article 6 of the European Convention on Human Rights . .
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 . .

These lists may be incomplete.
Updated: 23 January 2021; Ref: scu.224877