Supreme Court refuses disclosure challenge to firearms convictions
A man convicted of firearms offences in 2003 has failed in a final appeal to the UK Supreme Court over a failure by the Crown to disclose material statements given to the police by witnesses.
Seven judges, led by the President Lord Neuberger and Deputy President Lady Hale, with Lords Sumption, Reed, Hughes, Toulson and Gill, upheld the refusal by the High Court of Justiciary of the appeal by Paul Macklin against his conviction for possession of a handgun and assaulting two police officers by repeatedly pointing the gun at them.
Identification was in issue at his trial. One officer had recognised him at the time, and the other had identified him from a selection of photographs shortly afterwards. Their evidence was challenged. The judge warned the jury about the risk that visual identification evidence might be unreliable, but gave no specific directions in relation to identification of an accused person in court.
Some years later the Crown disclosed witness statements which had not been disclosed at the trial. One gave a description inconsistent with Mr Macklin’s appearance; two witnesses failed to identify the appellant when shown his photograph. It was also disclosed that the police had found fingerprints belonging to someone else in the car in which the gunman escaped; that person had a criminal record. In 2012 Mr Maclikn was given leave to bring the appeal, which was based on (1) the Crown’s failure to disclose material evidence; (2) the Crown’s leading and relying on dock identifications by the police officers, without having disclosed material evidence and without the officers having participated in an identification parade; and (3) misdirection of the jury. The High Court refused the appeal but the appellant obtained permission to appeal to the Supreme Court.
Giving the leading judgment, Lord Reed said the third issue did not raise a human rights compatibility point and could not be considered by the court.
On the first issue, the question whether a failure of disclosure had resulted in a breach of article 6(1) of the European Convention on Human Rights had to be considered in the light of the proceedings a whole, including appellate decisions. This involves consideration, first, of whether the prosecution failed to disclose all material evidence, in circumstances in which such a failure would result in a violation of article 6(1), and secondly whether the defect in the trial procedures was remedied by the procedure before the appellate court. McInnes v HM Advocate (2010) held that if the material might have materially weakened the Crown’s case or materially strengthened the defence’s case, the court had to consider whether, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict.
It did not follow, as argued for the appellant, that if the material would have been disclosed by the Crown now, it should have been disclosed before the trial. The High Court had applied the first test in McInnes in considering which of the withheld evidence should have been disclosed, and explained its reasons. In relation to the material which should have been disclosed, it then applied the second test in McInnes and explained its reasons for concluding that there was no real possibility that the jury would have arrived at a different verdict. The court also considered whether the Crown’s leading of the identification evidence from the police officers had resulted in the Lord Advocate’s acting incompatibly with article 6(1) and concluded that it had not.
In determining a compatibility issue, as stated in McInnes, the Supreme Court could decide whether the High Court had adopted – and applied – the correct test, but not whether it then applied that test correctly to the facts. This principle gave effect to the finality accorded to the High Court’s decisions. In the present case it was clear from the reasoning of the High Court that it identified the correct test and also applied it to the circumstances of the case.
Lord Gill gave a concurring judgment, with which the other five judges agreed.