Summary of Opinion — Appellate Decision

Factual and Procedural Background

The Appellant was convicted at trial on 9 November 2022 of multiple sexual and violent offences involving two child complainers (hereafter "Complainant One" and "Complainant Two"). At an adjourned diet on 13 December 2022 an extended sentence was imposed (seven-year custodial term plus two-year extension). The indictment included charges arising at two residences identified in the trial record; these are referred to in this summary as "[Number] Main Street" for consistency with the original opinion.

The Appellant initially appealed on a different ground; leave to appeal to the UK Supreme Court was granted and, during that hearing, the Crown conceded failures of disclosure in respect of multiple documents and social-work records. The Supreme Court refused the substantive appeal but remitted to the Appeal Court to determine whether the non-disclosure occasioned a miscarriage of justice under the second stage of the test in McInnes v HM Advocate. This court admitted an amended ground of appeal relating to non-disclosure, heard argument in 2025 and was required to apply the McInnes two-stage approach to numerous previously undisclosed items.

Legal Issues Presented

1. Whether, applying the second-stage McInnes test ("taking all the circumstances of the trial into account, is there a real possibility the jury would have arrived at a different verdict?"), the Crown's failures of disclosure resulted in a miscarriage of justice.
2. Having found a miscarriage of justice, whether the convictions should be quashed and whether authority should be granted for a new prosecution under sections 118–119 of the Criminal Procedure (Scotland) Act 1995.

Arguments of the Parties

Appellant's Arguments

• The Crown failed to disclose numerous documents and social-work records that would have materially weakened the Crown case or strengthened the defence; this non-disclosure rendered the trial unfair and occasioned a miscarriage of justice under Article 6 and McInnes.
• Certain specific items (including a police interview recording/transcript and entries in social-work records) would have given rise to a real possibility of different verdicts; the Appellant relied on the items the Crown ultimately conceded met stage one or stage two.
• At trial the defence advanced that Complainant One was untruthful and Complainant Two was unreliable; the defence relied on witness evidence (including the Appellant's partner) to contest the complainers' accounts.

Respondent's (Crown) Arguments / Position

• The Crown acknowledged significant disclosure failures and conceded that, in respect of certain identified documents and social-work entries, stage one (and in part stage two) of McInnes was met; the Crown left assessment of effect to the court.
• The Crown accepted that disclosure failings rendered the trial unfair in principle and agreed the case should be remitted to determine whether there was a miscarriage of justice.
• Where items were disputed, the Crown submitted that many entries in the social-work records would have had at most marginal effect and that, had the defence sought to deploy them at trial, the Crown could have responded from the same records or by adducing witnesses.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McInnes v HM Advocate [2010] UKSC 7	The two-stage test for non-disclosure appeals: (1) whether withheld material ought to have been disclosed (might materially weaken Crown case or strengthen defence); (2) whether, taking trial circumstances into account, there is a real possibility the jury would have reached a different verdict.	Applied as the central analytic framework; the court focussed on the second-stage question in assessing each undisclosed item.
Affleck v HM Advocate [2010] HCJAC 61	Disclosure obligation and equality of arms underpinning fair trial requirements.	Referred to as authority for disclosure principles underpinning the court's approach to fairness and disclosure failures.
Yalçinkaya v Turkey (2024) 78 EHRR 30	Failure to disclose material evidence can amount to refusal of facilities necessary for defence preparation.	Used to support the proposition that non-disclosure undermines Article 6 rights and the prosecutorial duty to disclose.
Rook v Germany (2020) 70 EHRR 25	Principles on non-disclosure and fairness of proceedings (quoted in Yalçinkaya).	Adopted via Yalçinkaya to show failure to disclose can deny facilities needed for defence preparation.
McCutcheon v HM Advocate 2002 SLT 27	Prior law on admissibility/hearsay of accused's statements (para 16).	Referenced in relation to change in legal position by statute affecting admissibility of accused's interview statements for interviews after 25 January 2018.
Coyle v HM Advocate 1994 JC 239	Use of prior statements and primary hearsay in cross-examination and proof of prior reports.	Referenced when discussing how the Crown could have used social-work records to rebut defence reliance on entries.
Whorlton v HM Advocate [2020] HCJAC 36	Principles concerning hearsay and use of prior inconsistent statements.	Referenced alongside Coyle as part of the court's analysis of how social-work records might be used by Crown or defence.
Fraser v HM Advocate [2011] UKSC 24	Example where serious disclosure failure led to quashing of conviction and remittal for further determination.	Referred to in discussion of historical practice and consequences of serious disclosure failures.
Wilson v HM Advocate [2021] HCJAC 12	Trial judge's duties and balancing the rights of the accused with public and victim interests; relevance of hearsay directions.	Used to underline the court's view that fairness requires regard to public and victim interests as well as the accused's rights.
Schatschaschwili v Germany (2016) 63 EHRR 14	ECtHR guidance that overall fairness is assessed by looking at proceedings as a whole, balancing defence rights and public/victim interests.	Referred to in assessing public and victim interest considerations when deciding on retrial authority.
Gafgen v Germany (2011) 52 EHRR 1	Victims and public have an interest in prosecution and punishment of criminals.	Quoted as supporting the court's view to balance accused's rights with victims' and public interest in prosecution.

Court's Reasoning and Analysis

The court applied the McInnes second-stage test to each category of undisclosed material (58 items disclosed post-trial; Crown accepted stage one for 36 and conceded stage two for several items). The court examined the trial evidence, speeches and directions before assessing the undisclosed material.

Key points of analysis:

• EE's (the Appellant's partner) undischarged police statement (26 June 2018): The court found that while parts of that statement could have been used by the defence, social-work records already showed longstanding concerns and prior involvement; the court concluded there was no real possibility the statement would have led to different verdicts.
• Complainant Two's statement of 27 August 2020 alleging a rape when she was about five: The court considered admissibility issues (a section 275 application would have been required at trial) and concluded that, applying current law and considering collateral inquiry risks, there was no real possibility this disclosure would have led to different verdicts.
• Statements by maternal grandmother (FF) in 2008 and 2020: The court judged these entries would have had limited effect; although FF's later account (acknowledging knowledge of a belt incident) could slightly undermine some testimony, there was no real possibility the evidence would have changed the outcome.
• Police interview recording/transcript of the Appellant (2 February 2021): The court found this to be a significant item. Changes in the law (section 261ZA, effective 25 January 2018) altered admissibility: parts of the interview could be admissible as evidence of fact. The interview contained denials and marked emotional reactions. The court concluded that presentation of admissible parts of this interview to the jury could have created a real possibility of different verdicts on some or all charges.
• Extensive social-work records: The Crown had received voluminous records and failed to consider or disclose many entries. The court assessed many entries as marginal. However, it identified one particular entry (an entry that, some weeks after Complainant Two first reported wrongdoing by the Appellant against Complainant One, recorded that Complainant Two told a social-work assistant she had lied to help her sister) as plausibly capable of undermining mutual corroboration. The court held that this entry did meet McInnes stage two because it could have led the jury to discredit Complainant Two's corroborative evidence, thereby affecting all charges dependent on mutual corroboration.

On cumulative assessment, although the Crown conceded many disclosure failings, the court identified two specific items (the police interview material and the social-work entry recording that Complainant Two had said she lied to help her sister) as meeting the McInnes second-stage test. Because the defence were denied the opportunity to deploy these items at trial, the court concluded there had been an unfair trial and a miscarriage of justice.

Holding and Implications

HOLDING: The court found a miscarriage of justice arising from the Crown's disclosure failures and accordingly SET ASIDE the Appellant's convictions.

Implications and immediate effects:

• The convictions were quashed (verdicts set aside) on the ground that non-disclosure of specific items met the McInnes second-stage test.
• The court authorised the Crown under sections 118 and 119 of the 1995 Act to bring a new prosecution; the Crown indicated it would not seek authority but the court nevertheless granted it. If no proceedings are commenced within the statutory period prescribed by s 119, the order will operate as an acquittal for all purposes.
• The court recorded serious concern at the scale and systemic nature of the Crown's disclosure failures, reproduced the Solicitor General's apology and description of investigatory findings regarding police and Crown Office processes, and noted steps the Crown proposed to take to prevent recurrence.
• The Appellant's bail was continued on existing conditions pending any decision by the Crown whether to prosecute anew.