News In Focus
11 February 2010
Supreme Court rejects non-disclosure appeals
The UK Supreme Court has dismissed appeals against conviction in two separate cases where the accused complained that the Crown had failed to make proper disclosure of information in its possession.
In the first case, Steven Allison, convicted in 2004 and sentenced to eight years for being concerned in supplying cocaine and other drugs, appealed on the ground that a police interview of a John Stronach, who had died before the trial, was led in evidence without the Crown disclosing that he had convictions for dishonesty and violence and faced further charges at the time of his death.
The second concerned Paul McInnes, convicted in 2001 and sentenced to eight years for assault to severe injury and attempted murder. He complained that although his solicitor had been able to take down in dictation (as was then the practice) a note of the evidence expected to be given by a Crown witness called Pearce, he had not been given copies of various statements by Pearce to the police which contained inconsistencies.
Recognised practice
In Allison, the court criticised the criminal appeal court in Scotland for not taking into account the outstanding charges against Stronach in deciding that the non-disclosure did not result in a miscarriage of justice. Lord Rodger, who gave the leading judgment, remarked that it appeared to have been "recognised as the proper practice in Scottish courts for more than 170 years" that jurors might properly take into account not only that a witness had been convicted of various offences, but that they had been charged with others.
However it had been shown during the trial that Stronach must have told many lies in the course of his interview, whereas some parts of his account were supported by other evidence, and the court agreed that there was "no real possibility that the jury would have come to a different verdict on the four charges against the appellant" if they had known of the convictions and the outstanding charges.
Proper test
McInnes's case was referred to the High Court by the Scottish Criminal Cases Review Commission following the 2006 decisions of Holland and Sinclair that all police statements had to be disclosed to the accused. The Supreme Court accepted that it could consider the correct test to apply as a devolution issue, but not whether the High Court had applied the test correctly.
In the leading judgment Lord Hope, Deputy President of the court, said the first question was whether the material which had been withheld from the defence "might have materially weakened the Crown case or materially strengthened the case for the defence".
If there had been a failure to disclose in breach of the requirement, the test in deciding whether there had been a miscarriage of justice was "whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict".
This had been recognised and applied by the appeal court and this appeal also should be dismissed.
Click here to access the judgments.