The appellant Nat Gordon Fraser went to trial in January 2003 at the High Court of Justiciary in Edinburgh charged with the murder of his wife Arlene Fraser, who disappeared from her home at 2 Smith Street, New Elgin on 28 April 1998. On 29 January 2003 he was found guilty of her murder and sentenced to life imprisonment, with a punishment part of 25 years. By a note of appeal which was lodged on 18 December 2003 he appealed against his conviction and sentence. He was granted leave to appeal.
The indictment on which the appellant went to trial included an allegation that, after the murder and with intent to defeat the ends of justice, he did “(iii) on 7 May 1998 at said 2 Smith Street, place a wedding ring, engagement ring and eternity ring belonging to said Arlene Fraser in said house.”
Although the Advocate Depute withdrew this charge at the end of the Crown case, he relied on the evidence that the rings had been discovered in the house on 7 May 1998 as a crucial part of the circumstantial evidence against the appellant that he had arranged for his wife to be killed. The trial judge directed the jury that, if they reached the view that they were not prepared to hold that it was the appellant who placed the rings in the bathroom on 7 May, it would not be open to them to convict the appellant.
The case was presented on the assumption, for which unchallenged evidence had been led, that the rings were not in the bathroom when Arlene Fraser disappeared. But it came to the notice of Crown Office after the appeal was lodged that, when he was precognosced by a Crown precognition officer on 3 July 2002, PC Neil Lynch had stated that he had visited the house on three occasions during the night of 28 and 29 April 1998 and that on the final visit he was accompanied by WPC Julie Clark. He said that on the night of 28 April and the morning of 29 April he had seen jewellery, including rings, in the house and that before the official search began he had thought he saw bracelets and rings in the bathroom which looked like a wedding ring, an engagement ring or an eternity ring. This information had not been recorded in PC Lynch’s notebook and it was not included in any statement provided by him prior to the trial. It was not provided
prior to or during the trial to the Advocate Depute, nor was it provided to the appellant’s representatives. PC Lynch and WPC Clark had not been precognosced by the defence in the course of their preparations for the trial.
The information which had been obtained on precognition from PC Lynch and WPC Clark was disclosed to the appellant on 8 March 2006. In the light of the information disclosed by the Crown the appellant lodged additional grounds of appeal in May 2006. These were followed by revised additional grounds in February 2007, in which it was submitted that there had been a miscarriage of justice because the evidence of PC Lynch and WPC Clark was not heard at the trial and because the Crown had failed to disclose the information that PC Lynch had provided when he was precognosced on 3 July 2002. The appeal was set down for hearing by the Appeal Court (the Lord Justice Clerk (Lord Gill), Lord Osborne and Lord Johnston) in November 2007.
On the first day of the appeal hearing, the appellant moved the Appeal Court to allow an additional ground of appeal and a devolution minute, which was in similar terms, to be received. In the devolution minute it was stated that the appellant intended to raise a devolution issue on the following grounds:
“i. That the Crown was in possession of information from Police Constable Neil Lynch, regarding the presence of Arlene Fraser’s rings in the bathroom at the locus at the time of her disappearance, prior to and at the time of the trial of the minuter.
- That said information was material evidence, which in the context of the trial, tended to undermine the Crown case and would have been of material assistance to the proper preparation or presentation of the minuter’s defence.
iii. That the Crown was under a duty to disclose to the defence any information which undermined its case.
- That, in breach of its duty, the Crown failed to disclose said information to the defence, thereby infringing the minuter’s rights under article 6(1) of the Convention.
- That, irrespective of its duty to disclose said information, the Crown was under a duty to present the case against the minuter on an accurate premise, and in a manner which was consistent with the minuter’s right to a fair trial. In making the cornerstone of its case
the reappearance of Arlene Fraser’s rings on 7 May 1998 and incriminatory inferences to be drawn from that fact in circumstances where it knew or ought to have known of a body of evidence which would render the invitation to a jury to draw such inferences
inappropriate, the Crown infringed the minuter’s rights in terms of article 6(1) of the Convention.
- That accordingly the conviction should be quashed.”
The Appeal Court refused the motion for the additional ground of appeal and the devolution minute to be received. The reasons that it gave for this decision were that they came too late, that sufficient cause had not been shown and that the matters sought to be raised were adequately covered by the existing grounds of appeal. In the course of the hearing the appellant’s counsel restricted his argument to the question whether there had been a miscarriage of justice on the ground of fresh evidence within the meaning of
section 106 of the Criminal Procedure (Scotland) Act 1995, and on the ground of non-disclosure which he accepted was in effect a duplication of the first ground. The non-disclosure ground of appeal was therefore treated in the same way as the fresh evidence appeal. The Appeal Court refused the appeal against conviction.
The appellant then sought leave of the Appeal Court to appeal to the Judicial Committee of the Privy Council against the Appeal Court’s refusal to allow the devolution minute to be received. The Appeal Court (the Lord Justice Clerk, Lord Osborne and Lord Wheatley) refused the application for leave to appeal as incompetent.
The appellant then lodged a petition with the Judicial Committee of the Privy Council in which he sought special leave of the Judicial Committee under para 13 of Schedule 6 to the Scotland Act 1998 to appeal against the determination by the Appeal Court of the devolution issue which he had raised in the devolution minute. Consideration of his petition for special leave was deferred pending the determination by the Supreme Court (which by now had inherited the jurisdiction of the Judicial Committee in relation to devolution issues under section 40(4)(b) of and Schedule 9 to the Constitutional Reform Act 2005) of the appeals in Allison v HM Advocate  UKSC 6 and McInnes v HM Advocate  UKSC 7. The appellant lodged a supplementary submission in support of his application for special leave to appeal. On 20 May 2010 the Court granted his application for special leave.
The devolution issue: The court reiterated that the High Court of Justiciary is the court of last resort in all criminal matters in Scotland:section 124(2) of the Criminal Procedure (Scotland) Act 1995; (McInnes v HM Advocate 2010 SLT 266). The Supreme Court’s appellate jurisdiction in relation to its decisions extended only to a consideration of a devolution issue which had been determined by two or more judges of that court. It did not go wider than that. If, therefore, the effect of the appellant’s application for special leave was that the Supreme Court being asked to review the determination under section 106 of the 1995 Act of his appeal by the Appeal Court, the Supreme Court would had been bound to refuse the application for special leave.
The appellant’s application for special leave was granted by the Supreme Court for two reasons. The first was that the decision by the Appeal Court to refuse to allow the devolution issue to be received amounted to a determination of that issue for the purposes of para 13 of Schedule 6 to the Scotland Act 1998. [ McDonald v HM Advocate  UKPC 46 Allison v HM Advocate  UKSC 6; Cadder v HM Advocate  UKSC 43]. The second was that it appeared to the court, applying the tests set out in McInnes v HM Advocate that it was seriously arguable that material had been withheld from the appellant which ought to have been disclosed to him and his advisers with the consequence the appellant did not receive a fair trial and that the unfairness had not been remedied by the approach taken by the Appeal Court.
The question in the appeal, therefore, was whether the way the Appeal Court dealt with the non-disclosure aspects of the appeal satisfied the requirements of these two tests.
The Supreme Court held that it was impossible to reconcile the approach which the Appeal Court took to the threshold question that section 106 raise with the test for cases of non-disclosure in McInnes. The Lord Justice Clerk’s acknowledgement that if the evidence of PC Lynch and WPC Clark had been led at the trial the advocate depute would not have committed himself to his theory, made the point. It was plain that this was information which might materially have weakened the Crown case as presented at the trial, or might materially have strengthened the case for the defence. That was why the Crown, very properly, felt that it ought to have disclosed this material. The Supreme Court held that the threshold test, as identified in McInnes, was met in the present case. The Court then considered the consequences.
Taking all the circumstances of the trial into account, and the extent to which the way the Crown chose to present the case would have been affected by the disclosure, the Supreme Court concluded that the consequences test as identified in McInnes had been satisfied.
The Supreme Court answered in negative the question whether the tests which the Appeal Court applied when it decided to dismiss the appeal as if it were a fresh evidence appeal were in essence the same as it would have had to have applied if it had entertained the argument that there had been a violation of the appellant’s article 6 Convention rights.
The present case had come as an appeal under paragraph 13 of Schedule 6 to the Scotland Act 1998. Rule 29(1) of the Supreme Court Rules 2009 (SI 2009/1603) provide that, in relation to an appeal, the Supreme Court had all the powers of the court below and that it may, among other things, affirm, set aside or vary any order of judgment made or given by that court. Section 118 of the Criminal Procedure (Scotland) Act 1995 provide, among other things, that the High Court of Justiciary may dispose of a conviction by setting aside the verdict of the trial court and quashing the conviction and granting authority to bring a new prosecution in accordance with section 119 of the Act:[ section 118(1)(c)]. The effect of rule 29(1) is that these powers are available to the Supreme court too if, having considered the devolution issue, it is satisfied that the answer to it must be that there was a miscarriage of justice in the proceedings in which the appellant was convicted.
Applying the McInnes test, the Supreme Court held that there was a miscarriage of justice at the appellant’s trial and that the appeal must be allowed. But it remitted the question whether authority should be granted to bring a new prosecution under section 119 of the Criminal Procedure (Scotland) Act 1995 for determination by the High Court of Justiciary. The Court remitted the case to a differently constituted appeal court to determine that question and, having done so, to quash the conviction.