Criminal Appeals

Fraser v Her Majesty's Advocate (Scotland) [2011] UKSC 24 (25/05/2011)

Fri, 27 May 2011 00:59:48 GMT

The immediate issue in this case is whether the trial at which the Appellant was convicted of murder was fair. The point of law of broader significance is whether it is compatible with Article 6 of the European Convention on Human Rights for an appeal against a criminal conviction on the ground of the Crown’s non-disclosure of evidence to the defence to be determined by applying the test laid down by the High Court of Justiciary in Cameron v HMA 1991 JC 252 for “fresh evidence” appeals.

Arlene Fraser disappeared from her home in New Elgin on 28 April 1998. Her body has never been found. The Appellant stood trial for her murder in January 2003. He was convicted and sentenced to life imprisonment. The Crown’s case was that the Appellant had arranged for his wife to be killed. Part of the evidence against him was that his wife’s rings had been discovered in the bathroom of her house on 7 May 1998 after he had visited the house. There was unchallenged evidence that they had not been in the bathroom when the deceased had disappeared. At the trial, the Crown placed considerable emphasis on the return of the rings. In his speech to the jury, the prosecutor (the Advocate Depute) described the return of the rings as the cornerstone of the case against the Appellant. He suggested to the jury that the Appellant had removed the rings from the dead body and placed them in the bathroom to make it look as though his wife had decided to walk away from her life. The trial judge directed the jury that, if they were not prepared to hold that it was the Appellant who placed the rings in the bathroom on 7 May, it was not open to them to convict him.

After conviction, it came to light that the Crown had had evidence before the trial suggesting that the rings were in the house on the night of 28/29 April after all. In preparing for the trial, a statement had been taken from PC Lynch on 3 July 2002 in which he had said that he had visited the house that night, before the official police search, and had seen rings in the bathroom. He said that he had been accompanied by WPC Clark. After this information came to light, the Crown carried out further inquiries. Statements were taken in 2006 from PC Lynch and WPC Clark. Both said that they had seen jewellery (including rings) in the bathroom on the night of Arlene Fraser’s disappearance. The rings were not visible in a video which had been taken during the official search, but subsequent analysis of that video could not rule out the possibility that rings had been present.

The Appellant relied upon this information in his appeal against conviction. He argued that it was new evidence which showed that his conviction was a miscarriage of justice. He also sought to raise a “devolution issue”, arguing that the Crown’s failure to disclosure the information obtained from PC Lynch on 3 July 2002 had infringed his right to a fair trial under Article 6 ECHR. The Appeal Court refused to allow him to advance the “devolution issue”: among other reasons, it held that the points were already covered by the “fresh evidence” grounds of appeal.

The Appeal Court refused the Appellant’s appeal. It treated the grounds of appeal relating to the Crown’s non-disclosure in the same way as those relating to new evidence and held that the new evidence was not such as to make the conviction a miscarriage of justice. The Supreme Court granted the Appellant leave to appeal to the Supreme Court.

The Supreme Court unanimously allows the appeal. It remits the case to a differently constituted Appeal Court to consider whether to grant authority for a new prosecution and then, having considered that point, to quash the conviction. Lord Hope gives the main judgment, with which Lords Rodger, Kerr and Dyson agree. Lord Brown gives a separate judgment indicating his reservations about allowing the appeal, but does not dissent.

Adams, R (on the application of) v Secretary of State for Justice [2011] UKSC 18 11/05/2011

Fri, 13 May 2011 09:45:23 GMT

Miscarriage of justice - In the Matter of an Application by Eamonn MacDermott for Judicial Review (Northern Ireland); In the Matter of an Application by Raymond Pius McCartney for Judicial Review (Northern Ireland)

R (on the application of Noone) (FC) (Appellant) v The Governor of HMP Drake Hall and another (Respondents), [2010] UKSC 30

Thu, 08 Jul 2010 19:08:37 GMT

This appeal concerns the inter-relationship between the sentencing provisions of the Criminal Justice Act 1991 (‘the 1991 Act’) and the Criminal Justice Act 2003 (‘the 2003 Act’).

The Supreme Court unanimously allowed the appeal. Lord Judge deplored the fact that ‘so much intellectual effort, as well as public time and resources, have had to be expended in order to discover a route through the legislative morass to what should be, both for the prisoner herself, and for those responsible for her custody, the prison authorities, the simplest and most certain of questions – the prisoner’s release date’ [para 87].

R (on the application of A) (Appellant) v B (Respondent) [2009] UKSC 12

Tue, 02 Feb 2010 23:09:56 GMT

Supreme Court - Press Summary

BACKGROUND TO THE APPEAL
A is a former member of the Security Service, B its Director of Establishments. A wants to publish a book about his work in the Security Service. A duty of confidentiality binds A and he cannot publish material relating to the Security Service without B’s consent. B refused A’s application for consent to publish. As a result, A began proceedings in the High Court to challenge B’s decision. He claimed, amongst other things, that his right to freedom of expression under article 10 of the European Convention on Human Rights had been breached. B argued that section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) provided that the Investigatory Powers Tribunal (“the IPT”)
was “the only appropriate tribunal” in relation to proceedings under section 7(1)(a) of the Human Rights Act 1998 brought against the intelligence services, such that the High Court did not have jurisdiction to entertain A’s article 10 claim.

The High Court held that it had jurisdiction to hear A’s challenge. The Court of Appeal, by a majority, reversed the High Court’s decision, holding that exclusive jurisdiction did lie with the IPT. A appealed to the Supreme Court. Justice (an all-party law reform and human rights organisation) intervened in the appeal in support of A’s submissions.

JUDGMENT
The Supreme Court unanimously dismissed A’s appeal. Lord Brown, with whom all the members of the Court agreed, gave the leading judgment. Lord Hope gave a concurring opinion.

REASONS FOR THE JUDGMENT
Two alternative arguments were advanced by A:
 Section 65(2)(a) excludes the section 7(1)(a) jurisdiction of any other tribunal but not that of the courts.
 Even if section 65(2)(a) is to be construed as conferring exclusive section 7(1)(a) jurisdiction on the IPT, it does so only in respect of proceedings against the intelligence services arising out of the exercise of one of the investigatory powers regulated by RIPA.

As to the first argument, Lord Brown noted that the language of section 7(2) of the 1998 Act and the use of the word “only” before “appropriate tribunal” in section 65(2)(a) indicated that it was unlikely that Parliament was intending to leave it to a complainant to choose for himself whether to bring proceedings in court or before the IPT (Para 13). Whilst the IPT rules made under RIPA were restrictive (e.g. in relation to the limited disclosure of information to a complainant), there were various provisions in RIPA and the IPT rules which were designed to ensure that, even in the most sensitive cases, disputes could be properly determined. None of these provisions would be available in the courts (Para 14). A further telling consideration against A’s construction was that there were in fact no other tribunals with section 7(1)(a) jurisdiction over the categories of claim listed in section 65(3) of RIPA (Para 15).

As to the second argument, Lord Brown considered that A’s submission would involve reading into section 65(3)(a) (which contains the phrase “proceedings against any of the intelligence services”) words which were simply not there. There were, in addition, other provisions in RIPA which were more obviously directed to complaints of abuse of the intelligence services’ regulatory power which made it impossible to adopt A’s construction (Para 18). It also did not seem right to regard proceedings of the kind intended here as immune from the same requirement for non-disclosure of information as other proceedings against the intelligence services (Para 19).

Lord Brown then went on to consider whether there were sufficiently strong arguments available to A which would require the Court to construe section 65 in a way which was contrary to Lord Brown’s initial conclusions as to its construction. For the reasons set out below, Lord Brown concluded that there were no such arguments available to A.

Lord Brown rejected A’s argument to the effect that to construe section 65 as conferring exclusive jurisdiction on the IPT would constitute an ouster of the jurisdiction of the courts that would be constitutionally objectionable (Para 21). RIPA, the 1998 Act and the Civil Procedure Rules all came into force at the same time as part of a single legislative scheme and it could not be said that section 65(2)(a) was ousting some pre-existing right (Paras 21-22). Parliament had not ousted judicial scrutiny of the acts of the intelligence services, but had simply allocated that scrutiny (as to section 7(1)(a) proceedings) to the IPT (Para 23-24).

Lord Brown also rejected the argument that forcing A’s article 10 challenge into the IPT would result in breaches of article 6 of the Convention. Claims against intelligence services inevitably raise special problems that cannot be dealt with in the same way as other claims and this was recognised both domestically and by the European Court of Human Rights (Para 26). The Court would be going further than the Strasbourg jurisprudence if it were to hold that the IPT procedures are necessarily incompatible with article 6(1) and it would decline to do so here (Para 30). Even if the IPT’s rules are in any way incompatible with article 6, the remedy would be to modify them, instead of adopting some artificially limited construction of the IPT’s jurisdiction (Para 31).

The anomalies which A alleged would arise if the Court of Appeal’s construction were to be adopted also did not cast doubt on the correctness of the Court of Appeal’s decision (Paras 32-37).