McInnes v Her Majesty's Advocate (Scotland), United Kingdom Supreme Court, Judgment, Law, casemine.com

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Attorney(S)

Appellant John Carroll Moira MacKenzie (Instructed by McClure Collins Solicitors)
Respondent Paul McBride QC Gordon Balfour (Instructed by Crown Office and Procurator Fiscal Service)
2nd Respondent & Intervener The Baron Davidson of Glen Clova QC Mark Lindsay (Instructed by Office of the Solicitor to the Advocate General for Scotland)

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McInnes v. Her Majesty's Advocate (Rev 1) (Scotland)

Smart Summary

Factual and Procedural Background

The Appellant was tried in December 2001 for an assault and attempted murder that occurred outside a hotel in The City. The prosecution’s case depended principally on two security stewards, Witness P and Witness M. Before it became standard practice for the prosecution (“the Crown”) to disclose police statements, several statements made by Witness P—including those given after two identification parades—were not disclosed to the defence.

Relying on subsequent authority that imposed wider disclosure duties, the Scottish Criminal Cases Review Commission referred the conviction to the High Court of Justiciary (“the appeal court”) under statutory procedure. The Appellant argued that the nondisclosure constituted a miscarriage of justice and, by minute, contended that the matter was a “devolution issue.” The appeal court rejected the appeal, holding that the nondisclosure did not create a real risk of prejudice. Leave was granted to bring the devolution issue before the Supreme Court, which is the forum of the present opinion.

Legal Issues Presented

What is the correct legal test, in Scots criminal law, for determining whether undisclosed material has rendered a trial unfair and thereby caused a miscarriage of justice under Article 6(1) of the European Convention on Human Rights?
Did the appeal court apply that test, or did it adopt an erroneously low threshold based on whether undisclosed material might have affected the verdict?

Arguments of the Parties

Appellant's Arguments

The proper question is whether disclosure could have made a difference to the outcome, not whether it would have done so.
If defence counsel had possessed the police statements, inconsistencies could have been used to undermine Witness P’s identification, thereby weakening the Crown’s case on the crucial issue of identity.
The appeal court’s requirement of a “real risk of prejudice” set the bar too high and conflicted with previous dicta suggesting that any material that might not possibly have affected the verdict suffices to quash a conviction.

Crown's Arguments

The Crown conceded that its duty of disclosure had been breached but maintained that the correct appellate test is whether nondisclosure created a real risk of prejudice.
The appeal court had undertaken the requisite assessment and concluded that the undisclosed statements would not realistically have altered the jury’s verdict; therefore the trial remained fair.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McLeod v HM Advocate (No. 2) 1998 JC 67	Article 6 requires disclosure of material that materially weakens the Crown case or strengthens the defence.	Forms part of the settled disclosure duty underlying the case.
Holland v HM Advocate [2005] UKPC D1	Disclosure obligations and discussion of potential prejudice.	Appellant relied on dicta suggesting a lower threshold; Court distinguished context.
Sinclair v HM Advocate [2005] UKPC D2	Scope of disclosure obligations.	Quoted to trace evolution of Crown practice.
McDonald v HM Advocate [2008] UKPC 46	All police statements must be disclosed.	Supported finding that nondisclosure occurred.
Allison v HM Advocate [2010] UKSC 6	Reaffirmation of disclosure standards.	Cited in support of materiality assessment.
HM Advocate v Murtagh [2009] UKPC 36	Materiality test for disclosure; police statements as a class.	Provided primary analytical framework.
Robertson v Higson [2006] UKPC D2	Scope of devolution appeals and Supreme Court jurisdiction.	Justified the Court’s competence to identify the test.
Mills v HM Advocate [2002] UKPC D2	Preliminary and consequential questions within a devolution issue.	Explained breadth of issues Supreme Court may address.
Montgomery v HM Advocate [2000] UKPC D2	Finality of Scottish criminal convictions.	Reinforced respect for High Court’s fact-finding role.
Spiers v Ruddy [2007] UKPC D2	Assessment of remedy after Convention violation.	Used to show that non-disclosure does not automatically render a trial unfair.
Hogg v Clark 1959 JC 7	Earlier formulation of “might have affected” test.	Appellant relied upon; Court held it too low a threshold.
Kelly v HM Advocate [2005] HCJAC 126	Adoption of “real risk of prejudice” test.	Court followed and approved this approach.
Maan v HM Advocate 2001 SLT 408	Disclosure necessary for preparation and presentation of defence.	Cited to illustrate breadth of disclosure duty.
Stirland v DPP [1944] AC 315	Test for quashing convictions where evidence was withheld.	Paralleled “real possibility” test adopted.
Bain v The Queen [2007] UKPC 33	Effect of fresh evidence on verdict safety.	Analogous reasoning applied to nondisclosure.
Dial and Dottin v The State [2005] UKPC 4	Appellate role in evaluating fresh evidence.	Supported principle that court, not jury, decides safety of verdict.
R v Pendleton [2002] 1 WLR 72	Guidance on appellate consideration of new evidence.	Referenced in discussion of English approach for comparison.
Stafford v DPP [1974] AC 878	Ultimate responsibility of appellate court to decide if verdict unsafe.	Cited in comparative discussion by the Court.

Court's Reasoning and Analysis

The Court first distinguished two distinct assessments:

Materiality for Disclosure: Whether withheld evidence might have materially weakened the Crown or strengthened the defence. Police statements automatically satisfy this test, so nondisclosure was conceded.
Consequences of Violation: Whether, in light of nondisclosure and the trial as a whole, there exists a real possibility that the jury would have reached a different verdict.

Rejecting the Appellant’s reliance on language suggesting a mere “possibility” threshold, the Court endorsed the appeal court’s requirement of a “real risk of prejudice.” It explained that:

The accused suffers a miscarriage of justice only if the nondisclosure deprived the defence of a realistic possibility of acquittal.
This standard aligns with long-standing authority (e.g., Stirland v DPP) and with English decisions on analogous issues.
The appeal court had conducted a thorough review of the trial record, including inconsistencies in Witness P’s statements, and reasonably concluded that cross-examination on the undisclosed statements would not likely have altered the jury’s decision.

The Supreme Court held that the appeal court’s articulation—“a real risk of prejudice to the defence”—properly encapsulates the requisite test and that its reasoning demonstrated correct application of that test.

Holding and Implications

APPEAL DISMISSED.

The Supreme Court affirmed that a conviction will be quashed for nondisclosure only where the withheld material creates a real possibility of a different outcome. The decision clarifies that the “real risk of prejudice” test, not a lower “might possibly” standard, governs Scottish appeals alleging Article 6 disclosure violations. The ruling maintains the finality of jury verdicts unless nondisclosure demonstrably undermines their safety and sets no new precedent beyond reinforcing existing jurisprudence.