Factual and Procedural Background
The Appellant appealed against a conviction for attempted murder arising from an assault on another prisoner in custody. The Appellant relied at trial on self-defence. The jury convicted him on three charges, but this appeal concerned only the attempted-murder charge. [1][2][3][4]
The Crown case relied principally on CCTV, prison-officer evidence, agreed facts and medical evidence concerning serious bladed-weapon injuries. The injured prisoner did not give evidence. [5][6][7]
After conviction and sentence, the Crown disclosed a victim statement received before trial but not disclosed until afterwards. The Crown accepted that it should have been disclosed earlier and that it was potentially capable of weakening the prosecution case or strengthening the defence. [8][9]
Legal Issues Presented
- Whether the Crown’s failure to disclose the victim statement breached its disclosure obligations. [10][11][12]
- Whether, considering all the circumstances of the trial, there was a real possibility that disclosure would have led the jury to reach a different verdict, thereby causing a miscarriage of justice. [13][14][15][16]
Arguments of the Parties
Appellant’s Arguments
- The victim statement was materially exculpatory and could have supported the Appellant’s self-defence account. [17][18]
- Disclosure would have enabled the defence to make an informed decision about calling the injured prisoner as a witness and would have provided an independent source of evidence supporting the defence. [17]
- The proper test was whether there was a real possibility that the jury might have reached a different verdict, rather than whether it would have done so. [19][20]
Respondent’s Arguments
- The Crown accepted that the statement was potentially exculpatory and should have been disclosed, but submitted that no miscarriage of justice had occurred. [10]
- The defence could have interviewed and called the injured prisoner, and it was uncertain whether the statement genuinely supported self-defence. [21]
- The Crown case was strong, particularly because of the CCTV, the Appellant’s statements, the nature of the injuries and the evidence concerning concealment of the weapon. [22][23]
- The credibility of any exculpatory evidence from the injured prisoner would have been undermined by his statement that nothing had happened and by his dismissive response to the warning about false information. [22][24]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| McPhelim v HM Advocate 1996 JC 203 |
A trial judge must provide an opinion on the case and grounds of appeal. |
The court referred to this principle in assessing the trial judge’s report. [25] |
| Razzaq v HM Advocate [2017] HCJAC 45, 2018 JC 21 |
A trial judge’s opinion assists the appeal court in determining the appeal. |
The court cited it in explaining the importance of the trial judge’s response. [25] |
| TH v HM Advocate [2025] HCJAC 46, 2026 JC 58 |
The expectation that trial judges address the case and appeal grounds. |
The court relied on it alongside the other authorities concerning trial-judge reports. [25] |
| McInnes v HM Advocate [2010] UKSC 7, 2010 SC (UKSC) 28 |
The disclosure test is whether, taking all circumstances of the trial into account, there was a real possibility that the jury would have reached a different verdict if the material had been disclosed. |
The court rejected the Appellant’s suggested distinction and applied this test. [19][26][13] |
| Fraser v HM Advocate [2011] UKSC 24, 2011 SC (UKSC) 113 |
Confirmed and applied the McInnes test for the effect of non-disclosure on trial fairness. |
The court used it to confirm the governing approach. [27][28] |
| Macklin v HM Advocate [2015] UKSC 77, 2016 SC (UKSC) 47 |
Reaffirmed that the relevant question is whether there was a real possibility of a different verdict. |
The court treated this authority as dispelling any remaining doubt about the applicable test. [29][15] |
Court’s Reasoning and Analysis
The court proceeded on the Crown’s concession that the statement was disclosable under the statutory disclosure provisions because it could materially weaken the prosecution evidence or materially strengthen the defence. [11][12]
The court held that the applicable consequence-of-non-disclosure test was the established McInnes test: whether, considering all circumstances of the trial, there was a real possibility that the jury would have reached a different verdict if disclosure had occurred. [13][15]
The statement could not itself have been used at the trial as conducted because the injured prisoner gave no evidence. The court therefore considered the hypothetical consequences if disclosure had prompted the defence to call him. His likely evidence was unknown, as he had not cooperated with attempts to interview him for the appeal. [30][31]
Any exculpatory evidence would have had to be assessed against the CCTV and other evidence. The footage indicated that the Appellant took the weapon into the cell, that other prisoners concealed it afterwards, and that the injured prisoner was bleeding while the Appellant showed no apparent injury. [32]
The court also considered the Appellant’s acceptance of responsibility, his statement that he had been going for the injured prisoner’s jugular, and the injured prisoner’s initial denial that anything had happened. These matters, together with the wording of the victim statement itself, would have substantially undermined the credibility and impact of any exculpatory account. [33][34]
Applying the governing test, the court concluded that advance possession of the statement would not have created a real possibility of a different verdict. [16]
The court additionally observed that, on the Appellant’s own account of the incident, self-defence could not succeed if the injuries were inflicted in the communal area while the Appellant possessed the razor and the injured prisoner was unarmed. Escape was reasonably available, and repeated razor blows to the face and neck would have been excessively retaliatory. [16]
Holding and Implications
APPEAL REFUSED. Although the Crown had failed to disclose material that ought to have been disclosed, the court found no miscarriage of justice because there was no real possibility that timely disclosure would have produced a different verdict. [10][16]
The conviction therefore remained undisturbed. The decision applied established disclosure principles and did not set out a new precedent. [13][15][16]