Applicant: Considine, Solicitor Advocate; Fitzpatrick & Co, Glasgow

Respondent: Brown, QC; the Crown Agent

24 October 2013

[1] This is an application, which relates to a conviction dating back to September 2003, seeking leave to appeal to the United Kingdom Supreme Court. The court approaches the issue on the basis that, as a generality, leave to appeal to the United Kingdom Supreme Court should only be granted by this court if the applicant is able to identify a potential error of law by this court on a compatibility issue and the point is one of general public importance. It is not appropriate to grant leave in cases in which this court has correctly identified the relevant principles of Convention jurisprudence but may, on the particular facts, have erred in the application of these principles.

[2] In the appeal to this court, the contention was that the Lord Advocate had acted incompatibly with the applicant's rights under Article 6 of the Convention by failing to disclose material information regarding the identity of the gunman, who was the central character in the offence. It was alleged that, as a result of the failure to disclose certain material, the applicant did not receive a fair trial and that there was a real possibility that, if disclosure had been made, then a different verdict may have been reached by the jury. Criticism was also made of directions by the trial judge following upon the dock identification of the applicant by two police officers. The current application proceeds largely along the same lines, although it is also said that this court erred in taking into account material extraneous to the trial in determining whether a real possibility of a different verdict existed.

[3] The court, when deciding the appeal applied, first, the test for disclosure in McDonald v HM Advocate 2008 SCCR 954, which was a decision of the Privy Council, essentially following McLeod v HM Advocate 1998 JC 67. It determined that material likely to be of assistance to the proper preparation or presentation of an accused's defence ought to be disclosed. Applying this test, the court decided that some of the material complained of by the applicant ought to have been disclosed in advance of trial and other material need not have been disclosed. The court may or may not have erred in its determination on that matter, but it decided it on the particular facts of the case.

[4] In any event, the court went on to decide whether, applying the test in McInnes v HM Advocate 2010 SC (UKSC) 28 and Fraser v HM Advocate 2011 SC (UKSC) 113, if there had been disclosure, there was a real possibility that the jury would have reached a different verdict. The court decided that there was no such possibility, given the particular evidence in the case. Contrary to what is asserted in the application, the court was entitled to have regard to the content of the trial judge's report to the Parole Board, given that, because of the lateness of the appeal, the trial judge had died and thus no appeal report could be obtained. The court approached the evidence in the manner set out by Lord Hope in Fraser (supra at para 38) by looking at the way in which the case was actually presented by the Crown and deciding whether, if the undisclosed evidence had been available, it could have made a difference to the jury's verdict. The court may or may not have been correct in its assessment of the materiality of the potential evidence not disclosed but, once again, the decision which was taken was made on the particular facts of the case.

[5] In relation to the issue of dock identification, the court had regard to Holland v HM Advocate 2005 SC (PC) 3, which determined that dock identification evidence is not, of itself, inadmissible. In this case, of course, the jury was dealing with the evidence of police officers, one of whom seems to have remembered, or been reminded, of whom he had seen at the scene and the other had previously identified the applicant by the use of photographs. It was not a breach of Article 6 for the Crown to have proceeded in the manner which was adopted at the trial.

[6] This application does not then raise any matter of general public importance. In this connection, the court has issued an appropriate form (40.9) which applicants are required to complete when seeking leave to appeal to the United Kingdom Supreme Court. That form expressly requests that applicants state whether there is a point of general public importance to be advanced and, if so, what it is. It is not without significance that there is no reference to any such point in the form completed in this case.

[7] Leave to appeal is therefore refused.