Undisclosed Victim Statements: A Disclosure Breach Does Not Automatically Establish a Miscarriage of Justice

1. Introduction

This appeal concerned the consequences of the prosecution’s failure to disclose a victim statement before a trial for attempted murder. The statement described the complainer’s injuries as effectively self-inflicted, characterised the appellant as the victim, and asserted that no crime had been committed. The Crown accepted that the information should have been disclosed. The decisive question was whether its absence had made the trial unfair and caused a miscarriage of justice.

The court refused the appeal. It reaffirmed that an established disclosure breach does not automatically invalidate a conviction. The appellate court must consider all the circumstances of the trial and ask whether there is a real possibility that the jury would have reached a different verdict had the material been disclosed.

The judgment is principally an application and clarification of established authority, rather than the creation of a new disclosure test. Its particular significance lies in its treatment of an apparently exculpatory victim statement, the evidential steps necessary to place its contents before a jury, and the weakness of the proposed self-defence case when measured against the objective evidence.

2. Background and Issues

The conviction under appeal

The appellant was convicted of attempting to murder another prisoner at HMP Perth on 5 March 2023 by repeatedly striking him with a bladed article. He maintained that he had acted in self-defence. The jury’s verdict on that charge was non-unanimous.

He was also convicted, unanimously, of a separate prison assault and possession of a bladed article in prison, the latter contrary to section 49C(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995. Those convictions were not challenged in this appeal.

The evidence at trial

The Crown relied principally on CCTV footage, prison officers’ testimony and medical evidence. The recording showed the appellant approaching the complainer’s cell with one hand in his pocket, briefly entering, and emerging approximately three seconds later. The fight continued in a communal area, where the complainer was visibly bleeding. The initial events inside the cell were not recorded.

The footage also showed other prisoners apparently concealing a small object after the fight. The appeal court considered that the appellant’s movements and interactions with those prisoners supported an inference of a premeditated attack involving a weapon. No weapon was recovered.

The complainer suffered several cuts to his face, neck, chest and upper arm, with permanent scarring. Medical evidence established that the neck wounds came close to the carotid artery and jugular vein. A prison officer also testified that, when another officer remarked that the appellant had almost reached the complainer’s jugular, the appellant replied: That’s what I was going for.

The appellant’s account was that he had approached the complainer about persistent disturbances, that the complainer grabbed him while reaching for a razor, and that the complainer initially injured himself and dropped it. The appellant said that he picked up the razor and acted in self-defence. He denied making the remark about the jugular.

The withheld statement

The Crown received the victim statement on 27 May 2025, but disclosed it only after the appellant’s conviction and sentence on 20 February 2026. In addition to asserting effective self-infliction and denying that a crime had occurred, the statement contained dismissive responses to the form’s questions and an openly contemptuous response to its warning about providing false information.

The complainer had been listed as a witness, but neither party called him. The appellant argued that timely disclosure would have enabled the defence to make an informed decision about calling him and might have supplied independent support for self-defence.

The appeal therefore raised three connected questions:

1. What test governs the consequences of an admitted disclosure breach?
2. How could the statement’s contents have become evidence at trial?
3. Would the statement, or testimony prompted by it, have created a real possibility of a different verdict?

3. Summary of the Judgment

The court proceeded on the Crown’s concession that the statement was disclosable under section 121(3) of the Criminal Justice and Licensing (Scotland) Act 2010. It nevertheless held that no miscarriage of justice had occurred.

• The governing test was settled: considering all the circumstances, was there a real possibility that the jury would have arrived at a different verdict following disclosure?
• The statement was not automatically trial evidence: the complainer had not testified, adopted its contents or been questioned about them.
• Even favourable assumptions did not assist the appeal: the court considered both the possibility that the complainer would claim complete self-infliction and the possibility that he would support self-defence.
• The remaining evidence was compelling: the CCTV, injuries, apparent concealment of the blade and evidence of the appellant’s remarks substantially undermined either account.
• Self-defence faced an additional legal obstacle: reasonable escape and the grossly excessive use of a razor against an unarmed opponent excluded the defence on the circumstances considered.

The appeal against the attempted-murder conviction was accordingly refused.

4. Legal Reasoning

A. Disclosure and appellate relief are separate questions

Section 121(3) of the 2010 Act requires disclosure where information would materially weaken or undermine the prosecution evidence, materially strengthen the accused’s case, or is likely to form part of the prosecution evidence.

The Crown accepted that the victim statement met the disclosure requirements, notwithstanding doubts about its truth or meaning. The court expressly proceeded on that concession. Its decision should therefore not be read as holding that every victim statement must invariably be disclosed, regardless of content.

The important distinction is between information’s potential value before trial and its likely significance when reviewing the completed trial. Material may require disclosure because it could assist the defence, yet its omission may not ultimately create a real possibility of a different verdict.

The Crown attributed the failure to two internal clerical errors and reported measures intended to prevent repetition. Those administrative explanations did not remove the breach. Equally, the breach’s existence did not answer the separate question whether the conviction was unsafe on the applicable test.

B. “Would” and “might” did not establish competing tests

The appellant argued that the correct question was whether the jury might have reached a different verdict, rather than whether there was a real possibility that it would have done so. This argument relied on differences of expression in McInnes v HM Advocate.

The court rejected the suggested distinction. It found no material inconsistency in that decision and explained that later Supreme Court authorities had conclusively settled the formulation. The inquiry is whether, taking all the trial circumstances into account, there is a real possibility that the jury would have reached a different verdict.

This remains a real-possibility test, not a requirement to establish that an acquittal was inevitable. But it requires a grounded assessment of the withheld material’s potential effect, rather than speculation that any additional favourable information could conceivably have mattered.

C. Possession of a document is not the same as admissible evidence

The defence argued that disclosure would have enabled it to lodge the statement and call the complainer. The court emphasised that, in the trial as actually conducted, he had not testified. There was therefore no opportunity for him to adopt the statement or be questioned about it.

The court also referred to possible hearsay routes under section 259(2)(d) and (e) of the Criminal Procedure (Scotland) Act 1995. These address specified circumstances involving self-incrimination or refusal to take the oath, affirm or answer questions. The relevant circumstances had not arisen at trial.

The point was not that the statement could never have become evidence. Rather, its disclosure did not itself guarantee that its contents would be placed before the jury as evidence of their truth. That required an admissible evidential route.

The complainer had not cooperated with attempts to interview him for the appeal, so his likely testimony remained unknown. Nevertheless, the court did not stop at that uncertainty. It assumed that disclosure would have led the defence to call him and considered the favourable accounts suggested by both parties.

D. The statement had to be assessed against the whole evidential picture

The statement was ambiguous. The Crown understood it as suggesting that the complainer had inflicted all his injuries himself. The appellant understood it as acknowledging that the complainer’s own aggression had provoked lawful defensive action.

The first interpretation conflicted with the appellant’s own account insofar as he accepted inflicting injuries while claiming justification. The second did not expressly establish the factual requirements of self-defence: the statement did not clearly describe the complainer as the aggressor or explain why the appellant’s force was necessary and proportionate.

More importantly, either version would have been tested against:

• the appellant’s approach to the cell with his hand in his pocket;
• the court’s inference that he brought the weapon with him;
• the apparent coordinated concealment of the blade;
• the absence of visible injury to the appellant;
• the absence of recorded hand injuries of the kind potentially expected from his account of the complainer handling the razor;
• the medical evidence and extensive facial and neck injuries; and
• the officers’ evidence concerning responsibility and the remark about targeting the jugular.

The complainer’s earlier assertion to prison staff that nothing had happened, and the evidence that prisoners commonly deny incidents of violence, also affected the likely credibility of exculpatory testimony. His dismissive response to the warning about false information was a further credibility consideration, although it did not make the statement exempt from disclosure.

The court also noted the availability of the separate assault evidence for mutual corroboration. It acknowledged uncertainty about how that issue had been presented and the absence of specific jury directions on mutual corroboration. The decision should not be treated as a separate ruling validating those directions; the appeal concerned non-disclosure.

E. Self-defence was independently undermined

After rejecting the disclosure ground, the court added that self-defence could not succeed on the circumstances advanced at the appeal hearing. If the injuries were inflicted in the communal area, the appellant possessed the razor, the complainer was unarmed and the appellant could reasonably have escaped.

Repeated razor blows to the face and neck were, in the court’s assessment, a cruelly excessive retaliation. Even if escape had been impossible inside the cell, that excessive response would still have excluded self-defence.

This reinforces a central distinction: an assertion that the injured person started the confrontation does not, without more, establish lawful self-defence. The necessity and degree of the accused’s response remain decisive.

5. Precedents Cited and Their Influence

McInnes v HM Advocate [2010] UKSC 7, 2010 SC (UKSC) 28

This supplied the central framework for assessing non-disclosure appeals. The judgment distinguished the existence of disclosable information from the consequences of withholding it. Once a breach is established, the court must assess whether the trial nevertheless remained fair.

The appellant relied on variations in language at paragraphs 20, 24, 30 and 35 to argue for a less demanding formulation. The appeal court found no substantive conflict. Its final conclusion expressly applied the McInnes v HM Advocate test.

Fraser v HM Advocate [2011] UKSC 24, 2011 SC (UKSC) 113

This decision confirmed how the earlier test should be understood. At paragraph 14, Lord Hope explained that fairness required consideration of whether, in all the circumstances, there was a real possibility of a different verdict following disclosure. He reiterated and applied that formulation elsewhere in the judgment.

Lord Brown used the same formulation while referring to passages relied upon by the appellant. The appeal court treated this agreement as demonstrating that the earlier variations in wording did not establish competing standards.

Macklin v HM Advocate [2015] UKSC 77, 2016 SC (UKSC) 47

This was the decisive confirmation. Giving the judgment of a seven-judge Supreme Court, Lord Reed stated at paragraph 14 that the question is whether, taking all the circumstances into account, there is a real possibility that the jury would have arrived at a different verdict.

The appeal court regarded this authority as dispelling any remaining doubt about the governing test.

McPhelim v HM Advocate 1996 JC 203

This concerned the trial judge’s reporting responsibilities rather than the substantive disclosure test. The court cited Lord Justice Clerk Ross at page 205 when explaining that trial judges are expected to provide an opinion on the case generally and the appeal grounds, consistent with section 113(1) of the 1995 Act.

Razzaq v HM Advocate [2017] HCJAC 45, 2018 JC 21

Paragraph 53 supported the practical importance of the trial judge’s report in enabling the appeal court to determine an appeal appropriately. Here, the report supplied an assessment of the CCTV, the statement and the likely reception of any resulting testimony.

TH v HM Advocate [2025] HCJAC 46, 2026 JC 58

Paragraph 33 provided further support for the same reporting function. These procedural authorities explained why the trial judge properly expressed views on the statement’s significance; they did not determine whether the disclosure breach justified overturning the conviction.

6. Significance and Potential Impact

Victim statements require substantive disclosure assessment

A document intended to describe the impact of an offence may also contain information bearing on guilt, credibility or a defence. Its label does not remove the need to assess its contents under the statutory disclosure criteria. Nor does apparent unreliability necessarily make potentially exculpatory information non-disclosable.

Defence access to a witness does not answer the disclosure question

The Crown and trial judge observed that the defence could have interviewed or called the complainer. The appeal court nevertheless proceeded on the admitted disclosure breach. The judgment should not be understood as transferring the prosecution’s disclosure duty to the defence merely because a witness was identifiable and potentially accessible.

Appeals require an evidentially realistic account of the lost opportunity

Future appellants relying on withheld statements will need to explain how disclosure could have changed trial preparation, what admissible evidence might have resulted and why that evidence could realistically have affected the verdict. Here, even assumptions favourable to the defence could not overcome the remaining evidence.

The decision is fact-sensitive

The judgment does not establish that victim recantations or exculpatory statements are generally incapable of creating a miscarriage of justice. Its conclusion depended on this statement’s ambiguity, the credibility concerns and the strength of the contrary evidence. Different material in a less compelling prosecution case could produce a different result.

7. Complex Concepts Simplified

Complainer

The Scottish term for the person against whom the alleged offence was committed.

Exculpatory information

Information capable of supporting innocence, weakening the prosecution case or assisting a defence.

Disclosure breach

A failure by the prosecution to provide information that it was legally required to disclose. Establishing the breach does not automatically establish grounds for overturning a conviction.

Real possibility of a different verdict

A realistic, evidence-based possibility that timely disclosure would have changed the jury’s decision, assessed in the context of the whole trial.

Hearsay

An out-of-court statement relied on to prove what it asserts. A written statement does not automatically become admissible merely because the defence possesses it.

Precognition

A pre-trial interview used to discover what a potential witness may say.

Mutual corroboration

In appropriate circumstances, evidence relating to sufficiently connected offences may provide supporting proof across charges.

Self-defence

A justification for necessary and proportionate defensive force. Being attacked first does not authorise excessive retaliation, and a reasonable opportunity to escape may defeat the defence.

8. Conclusion

The judgment reaffirms the distinction between a failure to disclose potentially helpful information and a miscarriage of justice requiring a conviction to be overturned. The controlling question remains whether timely disclosure creates a real possibility that the jury would have reached a different verdict.

Here, the statement’s uncertain meaning, the obstacles to presenting it as evidence, the compelling contrary evidence and the deficiencies in self-defence meant that threshold was not met. The conviction therefore stood, notwithstanding the Crown’s admitted failure.