Undisclosed Police-Interview Evidence and Social-Work Retraction Entries as McInnes “Stage 2” Material; Retrial Authority Granted Despite Crown Fault
Case: Appeal against Conviction by YZ against His Majesty's Advocate (High Court of Justiciary)
Citation: [2026] HCJAC 12
Court: Appeal Court, High Court of Justiciary (Scotland)
Date: 5 February 2026
Judges: Lord Justice Clerk (Beckett), Lord Matthews, Lord Armstrong
1) Introduction
This appeal arose from YZ’s convictions (High Court at Stirling, 9 November 2022) for serious sexual and violent offences against two complainers, sisters AA and BB. The convictions depended critically on the jury accepting the complainers as credible and reliable, with mutual corroboration providing the only route to proof on the sexual charges.
The appeal ultimately narrowed to a single question: applying the second stage of the test in McInnes v HM Advocate [2010] UKSC 7, 2010 SC (UKSC) 28, was there a real possibility that the jury would have reached different verdicts had the Crown complied with its disclosure obligations?
The background is unusual. The appellant’s earlier appeal focussed on the absence from the indictment of a third rape allegation concerning AA and the defence’s inability (as then understood) to lead certain evidence without a charge or a successful section 275 application. During Supreme Court proceedings, however, the Solicitor General disclosed that extensive material had not been revealed to the defence. The Supreme Court remitted the case to the High Court of Justiciary to determine whether there had been a miscarriage of justice.
Core issue: whether non-disclosure, assessed in the actual trial context, created a real possibility of different verdicts (McInnes stage 2).
2) Summary of the Judgment
The Appeal Court held that, although many disclosure failures existed, only two items met McInnes stage 2:
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The undisclosed police interview recording/transcript of the appellant (2 February 2021), which contained denials and significant emotional reactions, and which the court held was admissible as evidence of fact under
section 261ZA (contrary to how both parties argued the point).
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A social work record entry (26 February 2019) noting BB said she had lied in her JII of 9 January 2019 (about witnessing assaults on AA/EE) to help her sister.
These two failures, taken in the context of a trial where credibility and reliability were the battleground, meant the convictions could not stand. The court therefore set aside the convictions as a miscarriage of justice.
Despite the Crown advising it would not seek a new prosecution, the court granted authority for a new prosecution under sections 118 and 119 of the Criminal Procedure (Scotland) Act 1995, emphasising the public and complainers’ interests in crime being properly and fairly prosecuted.
3) Analysis
3.1 Precedents Cited
Disclosure fairness framework
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McInnes v HM Advocate [2010] UKSC 7, 2010 SC (UKSC) 28
The governing two-stage approach:
- Stage 1: should the material have been disclosed (might materially weaken the Crown or strengthen the defence)?
- Stage 2: in the actual trial context, is there a real possibility of a different verdict?
The appeal turned on stage 2. The court stressed it must examine evidence led, speeches, and directions before assessing the non-disclosure.
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Affleck v HM Advocate [2010] HCJAC 61, 2010 SCCR 782
Cited for the Article 6 “equality of arms” principle underpinning disclosure, and for the idea that where the defence already knew and used material there may be no inequality of arms. The court expressed “unease” where the appellant personally knew he had been interviewed, but ultimately held the recording/transcript still mattered because counsel lacked the ability to view and deploy it effectively.
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Yalçinkaya v Turkey (2024) 78 EHRR 30 and Rook v Germany (2020) 70 EHRR 25
Used to reinforce that failure to disclose material evidence can deprive the accused of facilities necessary to prepare the defence—anchoring Scottish disclosure duties in Convention jurisprudence.
Admissibility and hearsay: the court’s corrective point
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McCutcheon v HM Advocate 2002 SLT 27
Mentioned initially in relation to admissions/utterances. Crucially, the court explained that post-2018 interviews must be understood through section 261ZA, which alters the historic hearsay position associated with McCutcheon-era doctrine. The court held both parties failed to appreciate that statements in police questioning are not inadmissible as hearsay (for interviews after 25 January 2018).
Using prior statements and social-work material
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Coyle v HM Advocate 1994 JC 239 and Whorlton v HM Advocate [2020] HCJAC 36
Cited for how prior statements/“primary hearsay” can be used, warning that if the defence sought to use social-work entries for inconsistency, the Crown could counter with other entries demonstrating consistency or prior reports. This tempered the court’s willingness to treat broad social-work material as stage 2 significant—except for the discrete BB “I lied” entry.
Retrial authority and broader fairness balancing
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Fraser v HM Advocate [2011] UKSC 24, 2011 SC (UKSC) 113
The court relied on the post-Supreme Court outcome in Fraser: even after serious Crown disclosure failure, authority for a new prosecution was granted. This supported the proposition that Crown fault is not, in modern disclosure law, an automatic bar to re-prosecution.
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Wilson v HM Advocate [2021] HCJAC 12, 2021 SCCR 141
Quoted for the principle that trial fairness involves not only accused’s interests but also those of the public and alleged victim in proper and fair prosecution.
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Schatschaschwili v Germany (2016) 63 EHRR 14 and Gafgen v Germany (2011) 52 EHRR 1
Used (via Wilson) to support a holistic “overall fairness” assessment and recognition of victims/public interests when deciding procedural consequences (here, whether to authorise a retrial).
3.2 Legal Reasoning
(a) The McInnes stage 2 approach applied in a credibility-driven trial
The court treated the trial as one where the central issue was the complainers’ credibility and reliability. The judge’s directions emphasised that to convict the jury needed to accept the “substance” of complainers’ evidence and find corroboration—especially via mutual corroboration for sexual charges.
In such a case, non-disclosed material that could (i) meaningfully undermine complainer credibility, or (ii) supply the jury with credible reasons to doubt guilt, can more readily meet stage 2.
(b) The police interview: why it mattered, and why the court differed from the parties
The Crown conceded stage 2 significance for the 2 February 2021 interview. The court accepted the outcome but reached it by a more doctrinal route than either party advanced:
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The defence argued largely in “demeanour and emotional response” terms and suggested the denials might not be admissible unless the Crown led them (as part of a mixed statement).
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The court corrected that analysis: section 261ZA (inserted by the Criminal Justice (Scotland) Act 2016, effective 25 January 2018) means an accused’s police-questioning statements are not inadmissible as hearsay and can be evidence of fact. Thus, admissible denials and context could have been placed before the jury (subject to relevance and editing).
The court acknowledged complexities: some “no comment” passages, potentially ambiguous remarks about address 1, and alternative explanations for distress (fear of custody rather than innocence). It also noted the appellant and solicitor knew an interview had occurred, raising an “unease” point. Nonetheless, because the defence lacked the recording/transcript—and thus lacked the opportunity to make a considered forensic decision about deploying it—the court could not exclude a real possibility that seeing admissible denials and reactions might have left the jury in reasonable doubt on some or all charges.
(c) The social-work entry of BB admitting she lied: narrow but powerful
The court rejected the idea that the “bulk” of social-work records necessarily met stage 2. It reasoned:
- Many entries would have marginal effect or invite collateral disputes.
- If the defence used selective inconsistencies, the Crown could deploy other entries demonstrating consistent reporting or prior complaints (Coyle; Whorlton).
- Experienced defence counsel might have judged it too risky to open up broad social-work material that also contained inculpatory content.
However, the discrete record that on 26 February 2019 BB said she had lied in the 9 January 2019 JII to help AA was different: it directly attacked BB’s reliability on a core corroborative pillar—witnessing violence against AA. Given mutual corroboration dynamics and the centrality of BB’s credibility across the case, the court (with “some hesitation”) held this could have altered the jury’s assessment and therefore met stage 2.
(d) Matters the court rejected notwithstanding concessions
Two rejections are especially instructive for future disclosure appeals:
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EE’s police statement (26 June 2018): The court declined to find a real possibility of different verdicts. It treated “shock” and later help-seeking as weak in context, particularly given longstanding social work involvement and violence concerns dating to 2005.
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BB’s statement alleging she was raped (27 August 2020): The court doubted (i) it would have been forensically wise for the defence to deploy it, and (ii) it would satisfy the Supreme Court-style reasoning on avoiding collateral inquiries under
section 275. It viewed the allegation as distinct and more serious than the charged sexual conduct against BB and likely to distract the jury into determining guilt on an uncharged rape.
(e) Authority for a new prosecution: a public-interest balancing exercise
Having quashed convictions for unfairness caused by Crown non-disclosure, the court faced whether to grant retrial authority under sections 118 and 119. It held:
- Crown fault is not, in the modern disclosure regime, an automatic reason to refuse authority (with Fraser’s retrial as a key comparator).
- Fairness is not solely accused-centric; it must consider the interests of complainers and the public in proper prosecution (Wilson; Schatschaschwili; Gafgen).
- The unfairness arose from disclosure failure, not from any wrongdoing by complainers or the public—so refusing authority would not obviously serve the public interest.
The court therefore granted authority for a new prosecution, leaving it to the Crown whether to proceed, and noting the strict statutory time limit: if proceedings are not commenced within two months, the setting aside operates as an acquittal (section 119(9)).
3.3 Impact
(1) Practical significance for disclosure litigation
The decision illustrates that even amid extensive disclosure failure, appellate relief may hinge on a small number of items that truly shift the jury’s evaluative landscape. The court’s insistence on trial-context analysis (evidence/speeches/directions) reinforces the discipline of stage 2: not “could it have helped?” but “could it realistically have changed the verdict?”
(2) Doctrinal significance: section 261ZA must be front and centre
The judgment’s most concrete “precedent-setting” clarification is its emphasis that post-25 January 2018 police interviews fall under section 261ZA, meaning statements are not excluded as hearsay and can be evidentially deployed (subject to the ordinary rules of relevance, fairness, and editing). In practice, this affects:
- how defence teams evaluate the importance of undisclosed interview recordings;
- how trial courts should think about admissibility arguments that assume older hearsay constraints; and
- how appellate courts assess stage 2 significance where undisclosed interviews contain denials, explanations, or other factual assertions.
(3) Retrial authority after Crown disclosure failure
The court’s willingness to authorise retrial despite profound Crown failures (and even when the Crown indicated it would not seek authority) signals that the appellate court sees itself as guardian of a broader justice equilibrium—accused rights, but also public confidence and victims’ interests—rather than treating quashing as necessarily the end of proceedings.
(4) Systemic consequences
The court’s reproduction of the Solicitor General’s detailed account of systemic failures (police recording practices, informal email exchanges, missing schedules, failures to request visible material, handover gaps) is a judicial warning that disclosure breakdowns can unravel major prosecutions long after trial. It also provides a quasi-checklist for institutional reform and future forensic scrutiny.
4) Complex Concepts Simplified
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Disclosure: The Crown must give the defence information that could significantly help the defence or weaken the prosecution. In Scotland this is codified in
section 121 of the Criminal Justice and Licensing (Scotland) Act 2010.
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Article 6 “equality of arms”: A fair trial requires the defence not to be placed at a substantial disadvantage versus the prosecution (Affleck; Yalçinkaya; Rook).
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McInnes stage 1 vs stage 2:
- Stage 1 asks whether the Crown should have disclosed the material.
- Stage 2 asks whether, in the real trial that happened, the jury might realistically have convicted differently if the material had been disclosed.
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Mutual corroboration: In some sexual cases, one complainer’s evidence can corroborate another’s if there are sufficient similarities to show a systematic course of conduct. Here, that made BB’s credibility pivotal not only to her own allegations but also to corroborating AA’s.
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JII and evidence on commission: A Joint Investigative Interview is a video interview of a child witness by trained police/social work staff. Evidence on commission is pre-recorded testimony before a judge, used to reduce trauma and preserve evidence.
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Section 275: A statutory gatekeeping process controlling evidence about a complainer’s sexual history/character, aimed at avoiding unfair prejudice and collateral “mini-trials.”
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Section 261ZA: A rule (for modern interviews) making an accused’s police-questioning statements generally admissible as evidence of fact (not excluded as hearsay), changing how police interview material can be used at trial.
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Authority for a new prosecution (sections 118/119): After a conviction is quashed, the appeal court can permit the Crown to prosecute again. If the Crown does not start the new case within the statutory period, the quashing becomes final like an acquittal (
section 119(9)).
5) Conclusion
[2026] HCJAC 12 is a disclosure-miscarriage decision anchored in the McInnes framework but notable for two features.
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First, it identifies two specific kinds of undisclosed material capable of meeting McInnes stage 2 in credibility-centred, corroboration-dependent trials: (i) an accused’s police interview (with denials and demeanour), and (ii) a social-work record capturing a complainer’s admission that she lied in a key evidential interview.
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Second, it reaffirms that, even after profound Crown disclosure failure, the court may authorise a retrial, explicitly balancing accused rights with complainers’ and the public’s interest in crime being properly and fairly prosecuted.