Allison v Her Majesty’s Advocate (Scotland)
The appellant was convicted of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971. In effect, he was found guilty of being concerned in the supplying of cocaine and three other controlled drugs at his home in Cumbernauld, at an address in Falkirk and elsewhere in the United Kingdom, between 12 November and 3 December 2003. The trial judge sentenced him to 8 years imprisonment. The appeal court refused his appeal against conviction, leaving his appeal against sentence to be heard on a date to be fixed.
Among his grounds of appeal against conviction was one which was first advanced in an additional Note of Appeal. It related to the record of a police interview of a John Stronach. Mr Stronach had died before the trial and the Crown introduced the interview into evidence in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995.
Neither before nor during the trial did the Crown disclose to the defence that Mr Stronach had a number of previous convictions and outstanding charges. In particular, he had convictions for reset, theft by opening lockfast places, assault and robbery and assault and breach of the peace. He also had a number of outstanding charges, including two alleged contraventions of the Misuse of Drugs Act 1971, an alleged theft by housebreaking and several alleged contraventions of the Road Traffic Act 1988. The Crown disclosed the previous convictions and the other outstanding charges only while the appellant’s appeal was pending before the appeal court. This prompted the appellant to lodge his additional ground of appeal: The failure on the part of the Crown to disclose to the defence the existence of all the previous convictions and outstanding charges resulted in the defence being unable to prepare and properly conduct their defence and the result was that the appellant did not receive a fair trial, as guaranteed by article 6(1) of the European Convention on Human Rights.
The Supreme Court held that the late Mr Stronach’s name was never included in the list of Crown witnesses appended to the indictment for the appellant’s trial – which may help to explain why the need to disclose his criminal antecedents was overlooked. But, when dismissing the appellant’s appeal, the appeal court rightly accepted, under reference to Holland v HM Advocate 2005 1 SC (PC) 3, 24, para 72, that the failure by the Crown to disclose Mr Stronach’s previous convictions had been incompatible with the appellant’s article 6(1) Convention rights. It is trite law that an individual charged with crime is presumed to be innocent until proved guilty. But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge had been brought.
The Privy Council’s decision in Holland, that the Crown should disclose outstanding charges of Crown witnesses of which they were aware, simply reflected the common sense position that – just as in everyday life – judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others. It further held that the failure of the Crown to disclose the outstanding charges to the defence was indeed incompatible with the appellant’s article 6(1) Convention rights.
The issue to be decided was as to the actual significance, in the whole circumstances of the case, of the Crown’s failure to disclose the charges. The appeal court did not consider that matter. After considering the circumstances, the appeal court was not persuaded that the failure of the Crown to disclose the previous convictions of Stronach to the appellant’s advisers resulted in an unfair trial and hence a miscarriage of justice. It accordingly rejected the appellant’s appeal, so far as based on the Crown’s failure to disclose Mr Stronach’s previous convictions.
The police interviewed Mr Stronach on tape in the early hours of 25 November. This was the interview which was the subject of the additional ground of appeal. The tape recording of the entire interview was played to the jury during the evidence of DC McFadden. In the course of the interview Mr Stronach said that he had been sent by a man called “Stevie” from Abronhill to sell the car. The appellant’s first name was Steven and his home was in the Abronhill district of Cumbernauld. The description of “Stevie” given by Mr Stronach fitted the appellant. On 27 November the appellant left his home and drove to the house of Mr Stronach’s girlfriend in Denny. He then took Mr Stronach’s passport to Airdrie Sheriff Court where it was used in connexion with his application for bail. A receipt for the passport from the court dated 27 November was recovered from the appellant’s home. Defence counsel also took DC McFadden through the transcript of the interview in detail and was able to show that Mr Stronach had told many lies.
The Supreme Court finally held that even if defence counsel had been able to deploy Mr Stronach’s outstanding charges as well as his previous convictions, this would have made any material difference. Also it would not have affected the fact that the jury, who must have been well aware of the defects in Mr Stronach’s statements, could still, with equal plausibility, have accepted those elements, and only those elements, in Mr Stronach’s account which were corroborated by other acceptable evidence. Thus the Supreme Court held that there was no real possibility that the jury would have come to a differrent verdict on the four charges against the appellant if they had been made aware, not only of Mr Stronach’s previous convictions, but of the outstanding charges against him as well. As there had been no miscarriage of justice it accordingly dismissed appellant’s appeal.