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By Professor Tony Kelly, Visiting Professor in Human Rights, University of Strathclyde

Nat Fraser

The Supreme Court handed down judgment in the appeal of Nat Fraser on 25th May 2011. In relatively (for them) brief terms – 22 pages – the Justices unanimously upheld the appeal and remitted the case back to the High Court of Justiciary in Scotland for the formal quashing of Mr Fraser’s conviction and for it to consider whether authority should be given to the Crown to bring a fresh prosecution. The case called on 25th May 2011 for this purpose when it was adjourned. The prosecution has indicated that it will seek authority for a fresh prosecution in this case.

Facts

In the case preview for the UKSC blog the circumstances of Mr. Fraser’s case were gone into in some detail. At trial the basis of the Crown case – one of the ‘keys’ of its circumstantial case – was the re-appearance of the deceased’s rings on 7th May 1998, some time after she had gone missing, some eight or nine days previously. The inference the Crown placed upon these was that they had been taken from the body and placed back within her home to make it look like Mrs Fraser had simply had enough and left. The Advocate Depute described the rings and their presence at the home of the deceased on 7th May, as the cornerstone of the Crown case. So crucial did the trial judge view that part of the evidence, he directed the jury that they could not convict if they did not believe the Crown account of the rings. In subsequent enquires – after the trial – it transpired that the Crown had detailed statements confirming the presence of the rings at the deceased’s home just shortly after her disappearance, thus destroying the factual basis of the cornerstone of the prosecution case. On the strength of the Crown sharing this information with the defence in the course of the appeal, the appellant sought and was granted bail pending the full hearing. The trial Advocate Depute upon being asked for his views on the new evidence, said that, had he been aware of the information, he “would have fainted”. He went on to say that the trial would have been halted necessitating further enquires. It is difficult to reconcile that view with the Appeal Court holding that the new material about the rings, although flatly contradicting the prosecution theory at trial, did not amount to a miscarriage of justice

Appeal

At the outset of the hearing before the Appeal Court in Scotland, on 13th November 2007, Counsel for Mr Fraser was refused leave to lodge a devolution issue containing arguments as to a breach of Article 6 of the European Convention on Human Rights. The appeal proceeded without reference to any argument therefore upon the application and effect of Convention rights. Just over three years ago, on 6th May 2008, the Appeal Court in Scotland comprehensively refused Mr Fraser’s appeal. A subsequent application for leave to appeal to the Supreme Court was robustly refused on 24th March 2009. The Supreme Court granted Mr Fraser’s application for special leave on 20th May 2010. The Supreme Court, following a line of authority from McDonald v. HM Advocate [2008] UKPC 46, 2009 SLT 993 to Allison v. HM Advocate [2010] UKSC 6, 2010 SLT 261 and Cadder v. HM Advocate [2010] UKSC 43, 2010 SLT 1125, [2010] 1 WLR 2601 dealt with the refusal of leave to allow a devolution issue to be raised at the outset of the appeal as a determination of a devolution issue.

Lord Hope was at pains to accentuate the limited nature of the jurisdiction conferred upon the Supreme Court. The High Court of Justiciary is the ultimate Court in all criminal matters in Scotland. The effect of the introduction, in schedule 6 to the Scotland Act 1998, of a further appeal to the Judicial Committee of the Privy Council (and then to the Supreme Court) was of limited scope. The Court was not asked to, and could not, opine upon an appeal against the determination of the Appeal Court under section 106 of the Criminal Procedure (Scotland) Act 1995 as to whether there had been a miscarriage of justice. The right of appeal in terms of the Scotland Act 1998, as amended, to the Supreme Court is on the limited basis of resolving a “devolution issue”. The Lord Advocate qua prosecutor, and qua Scottish Government Minister, is caught by the terms of section 57(2) Scotland Act 1998. This provides that a Convention incompatible act is ultra vires a member of the Scottish Government. An appeal lies all the way to the Supreme Court to resolve the “devolution issue”: whether a member of the Scottish Government has acted compatibly with Convention rights. In construing its role in the narrowest possible sense the Supreme Court set about its task of determining whether there had been a breach of Article 6. The test for determining such an issue was recently authoritatively stated by the Supreme Court in the case of McInnes v HM Advocate 2010 SLT 266. The United Kingdom Supreme Court reiterated that it could not rule upon the test identified by the High Court of Justiciary in criminal appeals and the application of that test. The limited nature of the jurisdiction given to the Supreme Court by the Scotland Act 1998 meant that it could only adjudicate on whether, in deciding the appeal, there had been a compatibility or otherwise with Convention rights. In McInnes it held that the test applied by the High Court of Justiciary in non-disclosure appeals was Convention compatible.

In Fraser, Lord Hope analyses, in very careful terms, the determination of the Lord Justice Clerk upon the application of section 106 of the Criminal Procedure (Scotland) Act 1995 namely the test for fresh evidence: its admissibility and effect upon the trial process. That fell, in the view of Lord Hope, to be contrasted with the threshold and consequence tests to be applied in non-disclosure cases – as laid down by McInnes. Lord Hope noticed that there had been a tension in various decisions of the High Court of Justiciary as to the applicability of the McInnes test concluding at paragraph 29:

“What the McInnes test does is to provide, for the assessment of whether or not there was a fair trial for the purposes of Article 6, what was lacking in the Cameron test for appeals on ground of additional evidence: a definition of what the expression miscarriage of justice in section 106(3) of the 1995 means in this context by reading it in a way that is compatible with the Convention right”.

In assessing in terms of Article 6 whether Mr. Fraser had a fair trial or not the Supreme Court contrasted the McInnes test with what had occurred before the Appeal Court in Mr. Fraser’s case.

In refusing the appeal before Scotland’s Court of Criminal Appeal the Lord Justice Clerk, the second most senior judge in Scotland, held that the new evidence would have been unlikely to have been led by the defence at trial. He did not accept that a reasonable explanation for the absence of the evidence at trial had been put forward. He said that the defence had an opportunity to investigate the allegations by interviewing – as the Crown had – the police officers in question and thereby ascertaining the position in relation to the rings. He was of the view that the new evidence about the rings may have strengthened the Crown case.

This approach was rejected by Lord Hope. For his Lordship the bearing that this part of the evidence would have upon the whole case as presented at trial was obvious. It did not matter where the material was to be found. It ought to have been disclosed – a failure to do so was in breach of Article 6. The ‘threshold’ limb of the McInnes test had been met.

As for consequences, the Lord Justice Clerk held that the remaining evidence was sufficient to entitle the jury to convict; that the evidence about rings was not essential to bring a conviction home against Mr. Fraser and that the evidence was not of such profound significance as to entitle the Court to rule that its absence amounted to a miscarriage of justice. Lord Hope held that the Appeal Court had fallen into error in assessing the significance of the material in light of a trial that may have taken place. The real error for Lord Hope was that the Crown, in the appellate process, put forward a different case from that advanced at trial. It was successful in persuading the Appeal Court of the guilt of the appellant on that basis. Lord Hope was not for reaching such a conclusion on the basis that the Supreme Court was akin to a jury hearing the evidence for the first time.

In light of the direction given by the trial judge, that in order to convict the jury must be satisfied about the Crown’s contention regarding the rings, Lord Hope said that the conclusion that the jury may have returned a different verdict was inescapable: “there is a real possibility that this would have been sufficient to raise reasonable doubt about the Crown’s case that the appellant returned the rings to the bathroom on 7th May”.

On one view, there is nothing earth shattering in this analysis or outcome. The Supreme Court in London, or the Judicial Committee of the Privy Council before it, has been able to reach a different view from lower Courts, repeatedly saying that an Appeal Court should not try an appellant on a differently constructed basis but, rather, that this should be left to the jury in a fresh trial. In the last criminal appeal from New Zealand, having analysed new evidence – undisclosed and fresh – the Judicial Committee of the Privy Council reached a different view from the New Zealand Court of Appeal: Bain v. The Queen (New Zealand) [2007] UKPC 33 (10 May 2007). Recently the Court of Appeal in England affirmed this view. In Dizaei v R. [2011] EWCA Crim 1174 (16 May 2011) it said that:

“This court does not re-try the defendant and cannot do so, because it does not hear the whole case. Ordinarily it hears no evidence at all, and when it does, as here, it is limited to fresh material. This court is not, therefore, in a position to substitute itself for the jury.”

In Scotland however, this now notorious case has raised considerable hackles about a London based Court interfering with the distinct identity of Scots criminal law. This feeds into a debate sparked during the passage of the Scotland Bill through the UK Parliament in the wake of another unanimous overruling of a decision of the Scottish Appeal Court (Cadder v HM Advocate). In proposed new amendments to the Scotland Act a tinkering with present arrangements for the inclusion of the Lord Advocate within the scope of section 57(2) and the retention of the right of appeal unfettered to the Supreme Court in exercise of its devolution jurisdiction is presently under consideration. True it is, in light of Cadder Scots criminal procedure has had to be altered but that is only to bring it into line with European norms. The Convention compatibility of fresh evidence or non-disclosure appeals with Article 6 is a matter that, if the Supreme Court does not rule upon, the European Court of Human Rights undoubtedly will. As the Expert Group, set up by the Advocate General for Scotland to look in to such matters pointed out, the internationalisation of Scots law is inevitable:

“Today, the laws of the European Convention and the EU treaties are neither English nor Japanese, not yet are they Scottish but we are never less bound to obey them”

The Supreme Court is able to operate with the benefit of former senior members of the Scottish Judiciary. That ought to be seen as a positive rather than a limiting and restrictive factor. Not so in Scotland. The former Lord Advocate in evidence before the Scotland Bill Committee of the Scottish Parliament talked of the ever-increasing numbers of appeals to the Supreme Court leading to the loss of identity of Scots law.(8th February 2011, Col 480). Her view was echoed in the reported comments of the First Minister in the wake of the Supreme Court’s decision in this case. [See The Herald, 26th May 2011 & The Scotsman 29th May 2011]. Instead of founding upon the recent work in this very area – by the Advocate General’s Expert Group and Scottish Government’s own research by Professor Neil Walker: “A review looking at the potential impact of the UK Supreme Court on the Scottish legal system” – the First Minster has defined the debate in narrow, party political and nationalist terms. The most recent development was the announcement of yet another Group to look in to this matter – see BBC 31st May 2011