CR1-09-12-10-Session 1_IMX30_1.mxf

Session: am
Session date: 2009 Dec 10

CASE ID: UKSC 2009/0129
Case name: Allison (Appellant) v Her Majesty's Advocate (Respondent) (Scotland)
Case summary:
Judgment: The Supreme Court unanimously dismisses the appeal, with Lord Rodger delivering the leading judgment of the Court.
Reasons for the judgment: The Court disagrees with the appeal court’s view in relation to outstanding charges. It is, of course, trite that an individual charged with crime is presumed to be innocent until proven guilty. But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge has been brought (para 9). The Privy Council’s decision in Holland v HM Advocate 2005 1 SC (PC) 3, that the Crown should disclose outstanding charges of Crown witnesses of which they are aware, simply reflects the common sense position that – just as in everyday life – judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others. This approach merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years (para 10). In the present case, the Crown does not deny that the outstanding charges against Mr Stronach might have weakened the Crown case by casting doubt on his character or credibility. Indeed the Crown accepts that, in accordance with Holland and HM Advocate v Murtagh 2009 SLT 1060, the failure to disclose the outstanding charges to the defence was incompatible with the appellant’s article 6(1) rights (para 14). The only live issue in the appeal, therefore, is the actual significance, in the whole circumstances of the case, of the Crown’s failure to disclose the outstanding charges. Having considered the circumstances of the case against the appellant, the Court is not persuaded that, if defence counsel had been able to deploy Mr Stronach’s outstanding charges as well as his previous convictions, this would have made any material difference (para 22). The Court is satisfied that there is no real possibility that the jury would have come to a different verdict on the charges against the appellant if they had been made aware, not only of Mr Stonach’s previous convictions, but of the outstanding charges against him as well. There has therefore been no miscarriage of justice (para 23).
Hearing start date: 2009 Dec 08
Hearing end date: 2009 Dec 10

CASE ID: UKSC 2009/0128
Case name: McInnes (Appellant) v Her Majesty's Advocate (Respondent) (Scotland)
Case summary:
Judgment: The Supreme Court unanimously dismisses the appeal, with Lord Hope delivering the leading judgment of the Court.
Reasons for the judgment: The law on disclosure is reasonably well settled. The prosecution must disclose any material which might materially weaken its case or strengthen the defence. Accordingly, all police statements as a class must be disclosed [para [1] per Lord Hope]. The Court’s jurisdiction in this case was confined to analysing whether the High Court of Justiciary had applied the correct legal test. The application of the test to the facts of the case was exclusively within the jurisdiction of the High Court of Justiciary [para [18] per Lord Hope]. Two questions arise for determination in this type of case. Firstly, whether the information is of a type that must be disclosed. In respect of police statements the answer to this question is clearly affirmative [para [19] per Lord Hope]. Secondly, 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 if the relevant information had been disclosed [para [20] per Lord Hope]. The question which the appeal court must ask itself is whether after taking account of all the circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. The question will be answered in the negative if there was a real possibility at a different outcome – if the jury might reasonably have come to a different view on the issue to which it is directed its verdict if the withheld material had been disclosed to the defence [para [24] per Lord Hope; see also paras [30]-[31] per Lord Rodger and paras [35] and [38] per Lord Brown]. The test to determine whether there has been a fair trial in terms of Article 6 is the same that is to be applied to determine whether there has been a miscarriage of justice [para [23] per Lord Hope]. It is clear from the judgment of the High Court of Justiciary that it applied the correct legal test [para [25] per Lord Hope].
Hearing start date: 2009 Dec 08
Hearing end date: 2009 Dec 10

CASE ID: UKSC 2009/0125
Case name: Miller (Appellant) v Her Majesty's Advocate (Respondent) (Scotland)
Case summary:
Judgment: The Supreme Court, by a majority of three to two (Lord Rodger and Lord Kerr dissenting), dismisses the appeals. The Court holds that the provision in question was within the Scottish Parliament’s legislative competence. Lord Hope delivered the leading judgment on behalf of the majority.
Reasons for the judgment: Majority Judgments The answer to the question raised by this case is to be found by applying the rules laid down in s 29 and Part 1 of Schedule 4 the Scotland Act 1998 which determine whether a provision of an Act is outside the Scottish Parliament’s legislative competence. Three questions arise in this case: (1) whether the purpose of s.45 was to modify Scots criminal law as defined in s.126(5) of the Scotland Act; (2) if so, whether its purpose was to make the law apply consistently to reserved matters and otherwise; and (3) if (1) and (2) are answered in the affirmative, whether the rule that s.45 modified was special to a reserved matter within the meaning of para 2(3) of Schedule 4 [para [22]]. The purpose of s.45 of the Criminal Proceedings etc (Reform)(Scotland) 2007 Act The available material conclusively demonstrates that the purpose of s.45 was to contribute to the reform of summary justice by reducing pressure on the higher courts. The jurisdiction of a Sheriff is defined by the penalties which he can impose and his powers in this respect are quintessentially matter of Scots criminal law. S.45 was directed to a rule of Scots criminal law, so it does not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998 [para [31]]. Was s.46 concerned to ensure that law applied consistently between reserved and non-reserved matters S.45 is one of a group of related provisions contained in the 2007 Act increasing the summary sentencing powers of Sheriffs in respect of a number of common law and statutory offences. If the 2007 Act had increased the sentencing power in respect of common law but not statutory offences the reform would have been incomplete and confusing. This problem would have been exacerbated if the reform had attempted to distinguish between statutory offences related to reserved matters and those which did not. The purpose of s.45 was to ensure that the law relating to the sentencing powers of Sheriffs was consistent as between offences concerning reserved matters and otherwise. Consequently, s.45 is not related to a reserved matter for the purpose of s.29(4) of the Scotland Act 1998 [paras [32]-[33]]. Is the sentencing jurisdiction of a Sheriff in relation to road traffic offences ‘special’ to the Road Traffic Offenders Act 1988 and the Road Traffic Act 1988 In identifying the rule of law that is being modified for the purpose of the test established by para 2(3) of Schedule 4, regard may be had to the purpose of the legislative provision effecting the modification [para [34]]. The key to the decision in this case lies in identifying the rule that is being modified. This is achieved by examining the purpose of the legislative provision which is under scrutiny [para [38] and [39]]. S.33 and Part 1 of Schedule 2 to the RTOA and s.103(1)(b) of the RTA contain, in effect, two rules of Scots criminal law. Firstly, that the overall maximum sentence in respect of driving while disqualified is 12 months. Secondly, the route by which the maximum sentence can be imposed. The former provision is plainly a rule that is special to the RTOA and RTA and is a reserved matter that the Scottish Parliament has no power to modify. However, the latter is a rule concerning Scots criminal jurisdiction and procedure which is not reserved. The change in the law effected by s.45 does not alter the maximum period of imprisonment for the offence of driving while disqualified. It relates to the procedure which determines whether the sheriff has power to impose that sentence. The rule of Scots law being modified is the rule of Scots criminal procedure. This rule of procedure is not special to the RTOA or RTA [para [37]]. Had it been necessary to address the point, para 3 of Schedule 4 (which provides that legislation having incidental or minor effects upon reserved matters shall be within competence) could not, contrary to the conclusion reached by the HCJ, render s.45 within the Scottish Parliament’s legislative competence. s.45 constituted an important modification to a rule of Scots criminal procedure that could not be regarded as incidental or consequential [para [40]]. Accordingly the court holds that s.45 is within the legislative competence of the Scottish Parliament. The appeals are dismissed and remitted to the HCJ for any further orders that may be required [para [43]]. Dissenting JudgmentsLord Rodger agreed that s.45 did not relate to a reserved matter [para [119]]. But he would have held that the provision of the RTOA prescribing the maximum term of imprisonment for a summary conviction for driving while disqualified is “special” to a reserved matter, in the sense that the United Kingdom Parliament has chosen it specifically for that offence. Lord Rodger did not agree that the purpose of the modifying provision can be a relevant consideration in identifying the rule of Scots law that is being modified for the purpose of para 2(3) of Schedule 4 [para [143]]. He also did not agree that the purpose of a provision which purports to modify a rule of Scots law can be used to determine whether that rule is “special to a reserved matter” [para [145]]. Lord Kerr agreed with Lord Rodger.
Hearing start date: 2009 Dec 08
Hearing end date: 2009 Dec 10

CASE ID: UKSC 2009/0127
Case name: Martin (Appellant) v Her Majesty's Advocate (Respondent) (Scotland)
Case summary:
Judgment: The Supreme Court, by a majority of three to two (Lord Rodger and Lord Kerr dissenting), dismisses the appeals. The Court holds that the provision in question was within the Scottish Parliament’s legislative competence. Lord Hope delivered the leading judgment on behalf of the majority.
Reasons for the judgment: Majority Judgments The answer to the question raised by this case is to be found by applying the rules laid down in s 29 and Part 1 of Schedule 4 the Scotland Act 1998 which determine whether a provision of an Act is outside the Scottish Parliament’s legislative competence. Three questions arise in this case: (1) whether the purpose of s.45 was to modify Scots criminal law as defined in s.126(5) of the Scotland Act; (2) if so, whether its purpose was to make the law apply consistently to reserved matters and otherwise; and (3) if (1) and (2) are answered in the affirmative, whether the rule that s.45 modified was special to a reserved matter within the meaning of para 2(3) of Schedule 4 [para [22]]. The purpose of s.45 of the Criminal Proceedings etc (Reform)(Scotland) 2007 Act The available material conclusively demonstrates that the purpose of s.45 was to contribute to the reform of summary justice by reducing pressure on the higher courts. The jurisdiction of a Sheriff is defined by the penalties which he can impose and his powers in this respect are quintessentially matter of Scots criminal law. S.45 was directed to a rule of Scots criminal law, so it does not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998 [para [31]]. Was s.46 concerned to ensure that law applied consistently between reserved and non-reserved matters S.45 is one of a group of related provisions contained in the 2007 Act increasing the summary sentencing powers of Sheriffs in respect of a number of common law and statutory offences. If the 2007 Act had increased the sentencing power in respect of common law but not statutory offences the reform would have been incomplete and confusing. This problem would have been exacerbated if the reform had attempted to distinguish between statutory offences related to reserved matters and those which did not. The purpose of s.45 was to ensure that the law relating to the sentencing powers of Sheriffs was consistent as between offences concerning reserved matters and otherwise. Consequently, s.45 is not related to a reserved matter for the purpose of s.29(4) of the Scotland Act 1998 [paras [32]-[33]]. Is the sentencing jurisdiction of a Sheriff in relation to road traffic offences ‘special’ to the Road Traffic Offenders Act 1988 and the Road Traffic Act 1988 In identifying the rule of law that is being modified for the purpose of the test established by para 2(3) of Schedule 4, regard may be had to the purpose of the legislative provision effecting the modification [para [34]]. The key to the decision in this case lies in identifying the rule that is being modified. This is achieved by examining the purpose of the legislative provision which is under scrutiny [para [38] and [39]]. S.33 and Part 1 of Schedule 2 to the RTOA and s.103(1)(b) of the RTA contain, in effect, two rules of Scots criminal law. Firstly, that the overall maximum sentence in respect of driving while disqualified is 12 months. Secondly, the route by which the maximum sentence can be imposed. The former provision is plainly a rule that is special to the RTOA and RTA and is a reserved matter that the Scottish Parliament has no power to modify. However, the latter is a rule concerning Scots criminal jurisdiction and procedure which is not reserved. The change in the law effected by s.45 does not alter the maximum period of imprisonment for the offence of driving while disqualified. It relates to the procedure which determines whether the sheriff has power to impose that sentence. The rule of Scots law being modified is the rule of Scots criminal procedure. This rule of procedure is not special to the RTOA or RTA [para [37]]. Had it been necessary to address the point, para 3 of Schedule 4 (which provides that legislation having incidental or minor effects upon reserved matters shall be within competence) could not, contrary to the conclusion reached by the HCJ, render s.45 within the Scottish Parliament’s legislative competence. s.45 constituted an important modification to a rule of Scots criminal procedure that could not be regarded as incidental or consequential [para [40]]. Accordingly the court holds that s.45 is within the legislative competence of the Scottish Parliament. The appeals are dismissed and remitted to the HCJ for any further orders that may be required [para [43]].
Hearing start date: 2009 Dec 08
Hearing end date: 2009 Dec 10