Adams v HMA: The “Materiality Threshold” for Late Disclosure & Desertion in Scottish Criminal Trials

Introduction

The Scottish High Court of Justiciary in Adams v HMA ([2025] HCJAC 30) has delivered an important judgment clarifying when a breach of the Crown’s disclosure obligations will (and will not) justify (a) desertion of a trial and/or (b) the quashing of a conviction on appeal. The decision is especially significant because late disclosure occurred during the accused’s cross-examination, the very scenario most likely to generate claims of prejudice. Yet the Court refused the appeal, articulating a refined “materiality threshold”. Only if the undisclosed material creates a real possibility that the jury would have reached a different verdict, or if any resulting unfairness is irreparable, will a conviction be unsafe or a trial require desertion.

Summary of the Judgment

The appellant, Shamshad Adams, was convicted of fraudulently securing sole ownership of a Florida property.
Two appeal grounds were advanced: (1) Crown’s failure to disclose a “warranty deed” before cross-examination, and (2) misdirection by omission concerning a suggested third-party involvement.
The Court (Lord Doherty and Lord Clark) held:
- Late disclosure was a breach, but not of such materiality as to render the trial unfair or require desertion.
- The sheriff’s refusal to desert was within the discretion outlined in HM Advocate v RV (2017 SCCR 7); the prejudice was curable by adjournment and re-examination.
- Any omission in jury directions about a possible third-party actor did not amount to a material misdirection; the standard fraud directions sufficed.
Accordingly, the appeal was refused and the conviction stands.

Detailed Analysis

1. Precedents Cited & Their Influence

McInnes v HM Advocate 2010 SC (UKSC) 28 – Provided the central test: whether, taking all the circumstances into account, there is a real possibility the jury would have returned a different verdict absent the non-disclosure. The Court applied this test verbatim at para [29]–[32].
Fraser v HM Advocate [2011] UKSC 24 – Re-affirmed compatibility of disclosure duties with Article 6 ECHR. Cited by the appellant but distinguished; the Court held the breach here lacked the requisite materiality.
HM Advocate v RV 2017 SCCR 7 – Defines desertion as “an act of last resort” only where unfairness is irreparable and cannot be remedied by adjournment or directions. The sheriff’s refusal to desert mirrored RV’s guidance, and the Court endorsed that approach (paras [27]–[33]).
Clarkson v HM Advocate [2024] HCJAC 13 – Reinforced that not every mid-trial disclosure failure necessitates desertion; relied on by the Crown.
EM v HM Advocate [2024] HCJAC 9 – Summing-up must be read in context of the evidence and speeches. Applied to reject the misdirection ground (paras [35]–[37]).
Older authorities (Stuurman, Potts, Fisher) were referenced for oppression principles, confirming that only oppressive continuation of proceedings triggers desertion.

2. The Court’s Legal Reasoning

The Court’s reasoning flowed through two inter-locking inquiries:

Materiality of Non-Disclosure
• The “warranty deed” was undoubtedly disclosable.
• However, its content (sale price & date) did not strike at the essence of the fraud charge: whether the appellant forged/stamped the Quit-Claim Deed months earlier.
• The jury already had other credibility-challenging evidence (communications between solicitors, forensic handwriting, suspicious court stamp). With these “many other convincing strands”, the Court was “unsurprised” by a unanimous verdict.
• Hence, no “real possibility” of a different verdict (the McInnes test) –> No miscarriage of justice.
Appropriateness of Desertion
• Applying HM Advocate v RV, desertion is warranted only when unfairness is “irreparable”.
• The sheriff provided an immediate adjournment, allowed privileged consultation, and permitted re-examination. These measures were deemed sufficient cures.
• The defence could have sought a longer adjournment but did not; that omission undercut the oppression argument.
• Therefore, a “drastic” desertion order was unnecessary.
Misdirection Allegation
• The Court reiterated that a jury charge is assessed holistically.
• Although the sheriff did not single out the third-party email point, he correctly directed the jury that the Crown had to prove the appellant made the false pretence.
• Any minor lack of clarity was non-material; again, no miscarriage.

3. The Decision in Context – Emerging “Materiality Threshold”

While none of the doctrinal building blocks are entirely new, the judgment combines them into a clear, structured test. Going forward:

Late Disclosure + Refusal to Desert ⇒ Conviction stands unless the appellant shows:
(1) the undisclosed material was material (capable of creating a real possibility of different verdict);
and
(2) any prejudice was irreparable, i.e., not remediable by adjournment, re-examination or directions.

This two-limb formulation is what practitioners are already familiar with, but Adams articulates it in highly fact-specific terms, emphasising how to operationalise the limbs. The Court firmly disapproved of reflex desertion motions based purely on the moment of disclosure.

4. Potential Impact

Trial Strategy: Defence counsel must now be prepared to articulate concrete prejudice and explain why an adjournment is inadequate; mere timing arguments will rarely suffice.
Crown Practice: Fiscal deputes are reminded that inadvertent breaches will be scrutinised, but—where quickly remedied and immaterial—are unlikely to collapse a trial. Procedural prudence remains essential; the Court criticised the overall four-year delay.
Appellate Landscape: Expect more “materiality”-centred appeals. Adams provides a template that appellate courts can apply to sift meritorious from speculative non-disclosure appeals.
Article 6 ECHR Jurisprudence: The decision signals that Scotland’s domestic framework, when properly applied, meets Strasbourg’s fairness standards even where mid-trial disclosure lapses occur.

Complex Concepts Simplified

Disclosure Duty: The obligation on the prosecution to provide the defence with any material information that could undermine the Crown case or assist the accused.
Desertion: The abandonment of a prosecution (akin to dismissal). It can be “simpliciter” (permanent) or “pro loco et tempore” (temporary with right to re-raise).
Oppression: Proceedings are “oppressive” if continuing them would violate fundamental fairness (e.g., excessive delay, deliberate prosecutorial misconduct).
Materiality: A datum is “material” if its absence creates a real possibility the verdict would differ. The term imports both relevance and potential decisiveness.
Misdirection by Omission: Failure of the trial judge to instruct the jury on a necessary point of law. It is fatal only if the omission could have influenced the verdict.
Quit-Claim Deed: A US instrument transferring property without warranty; distinct from a sale deed. Its forgery underpinned the fraud charge.

Conclusion

The High Court’s refusal of Shamshad Adams’ appeal consolidates the Scottish approach to late disclosure and desertion. The judgment’s key contribution lies in sharpening the materiality threshold: only demonstrably significant non-disclosure that produces or risks irreparable unfairness will justify desertion or overturn a verdict. Minor or curable lapses—however regrettable—do not. Practitioners must therefore focus less on the simple fact of late disclosure and more on its probative and strategic weight. By anchoring its analysis in precedent yet applying it with pragmatic nuance, the Court reinforces both the integrity and efficiency of criminal procedure in Scotland.