Scots cases test UK court

Published on Sunday 6 December 2009 19:30

THE proposal to run a minibus down to the UK Supreme Court in London this week did not get much support. It would be too much like the Tartan Army arriving at some soccer outpost, and besides, the personnel involved in this journey have hopes of actually winning.

Two months into the labours of the UK Supreme Court, the first four Scottish cases will be heard in London this week.

Time will tell whether they become a footnote in the legal textbooks or milestones in the standing of Scots law.

The cases are grouped in pairs and address two distinct issues. First up on Tuesday are the cases of Allison v HMA and McInnes v HMA arising from defence challenges over non-disclosure of relevant evidence by the Crown.

Stephen Allison was convicted on four charges under the Misuse of Drugs Act 1971 at High Court in Glasgow in 2004. His appeal against conviction was refused in November 2008. One of the grounds of appeal was that previous convictions and outstanding charges against a prosecution witnesses who had died before the trial could take place had not been disclosed to the defence. The Crown accepted the information should have been disclosed but the Appeal Court decided the omission did not constitute a miscarriage of justice.

The defence sought leave to take the case to the Judicial Committee of the Privy Council, which was, at the time, the line of appeal beyond the Appeal Court in Edinburgh on "devolution issues". The UK Supreme Court took over that status in October.

The majority of devolution issues in the last decade have concerned the application of the European Convention of Human Rights. Despite the conventional view for nearly three centuries that Scotland retains the last word in criminal cases, that supremacy was fundamentally altered by the arrival of the ECHR.

What marks out this case is the Court of Appeal heard the application last February and refused permission to go to the Supreme Court on the basis that the defence had never specified the failure to disclose evidence as a devolution issue in the appeal. It was too late. Allison's legal team, led by Gordon Jackson QC, applied to the Supreme Court anyway and cited a little remarked case, McDonald v HMA, from November 2008, in which a bench of the then Judicial Committee of the Privy Council including Lord Hope of Craighead and Lord Rodger of Earlsferry ruled it was for them, not for the lower court, to decide whether special leave to appeal should be given.

It will not be easy for the Senators of the Court of Justice to stomach the status of "lower court". The Allison application was accepted and will run in tandem with McInnes v HMA, which also concerns matters arising from a failure to disclose evidence to the defence. In the McInnes case, information only came to light during the course of preparing an appeal against conviction for attempted murder about the uncertainty of witnesses when they were asked to look at an identity selection of photographs. The appeal court found it could not be concluded that the failure to disclose had affected the outcome.

The McInnes defence team is led by solicitor advocate, John Carroll, who says the issue to be addressed by the Supreme Court is the test that must be applied when judges are considering an appeal that a miscarriage of justice may have occurred.

"We had a relatively low test set out by Lord Clyde in 1959 which seemed to serve well until replaced by a more robust test in a case called Kelly v HMA in 2005," he explains. "Lord Clyde took the view it was sufficient to entertain an appeal if there was a 'possible' risk of a miscarriage of justice whereas the Kelly judgment raised the threshold with the court looking for a 'real' risk of a miscarriage of justice.

"Bear in mind that in an appeal the onus of proof is on the person who has been convicted – in the original trial the onus of proof is on the prosecution – and that's a high threshold to clear."

The second pair of cases are likely to be equally significant in drawing a line between the will of the legislators on the Scottish Parliament and the intention of those in Westminster.

When the drafters of the Scotland Act drew up the line of appeal to the Judicial Committee of the Privy Council it was expected they might have to adjudicate fairly regularly in matters where Holyrood and Westminster were in conflict about their respective powers. It has taken ten years for the first such argument to arise.

Both Martin v HMA and Miller v HMA arose following the decision of the Scottish Parliament in the Criminal Proceedings etc (Reform) (Scotland) Act 2007 to increase the sentencing power of sheriffs in summary cases from a maximum of six months imprisonment to 12 months. This was part of the summary justice reforms that attempted to clear the logjam of "less serious" cases from the High Court and sheriffs sitting with a jury.

Ross Miller was convicted of various driving offences in 2008 and was given eight months imprisonment by a sheriff sitting alone making use of the new sentencing powers. However, all Road Traffic Act offences are reserved areas of legislation for Westminster. The maximum specified period of imprisonment for Miller's offences in terms of the Road Traffic Offenders Act 1988 is six months. Miller's legal team will be led by Chris Shead QC. "This is the first case in the decade since the Scottish Parliament was set up that actually deals with a question about where the powers of the Scottish Parliament may be in conflict with those Westminster on a reserved issue," he says. "On the one hand the courts and the way they conduct themselves and most criminal law is devolved.

"On the other, there is a body of UK criminal law including misuse of drugs, firearms control and in this case road traffic offences that were reserved to Westminster."

It's a narrow but important point. Although the list of reserved areas of criminal law is short, they probably make up most sheriff court business.

A decision against Miller and Martin will create turmoil at a time when the clamour is for sentences of less than six months to be abandoned.

So, do the band of brothers in law, Messrs Jackson, Carroll, Shead and Brown feel the hand of history on them?

Jackson says: "In some respects it will be easier to present the case there because the Supreme Court's procedural requirements for all documents to be lodged electronically mean everything is printed and prepared before we get there."