JSC v. Her Majesty’s Advocate [2022] HCJAC 11

Application for permission to appeal to the Supreme Court of the United Kingdom:- The applicant appealed against his conviction in relation to charge 1, a charge of lewd and libidinous practices and behaviour against complainer, H and charge 3, a charge of lewd and libidinous practices and behaviour towards and sodomy of complainer, L. In relation to charge 2, the applicant was found ‘not proven’. The appeal against conviction was presented on multiple grounds including an alleged failure by the Crown to disclose certain material information which was the only ground the appellant then sought permission to appeal to the Supreme Court of the United Kingdom. The applicant contended that the high court erred in not finding that the Crown’s failure to disclose certain information breached the applicant’s rights under Articles 6(1), 6(3)(b) and 6(3)(d) of the European Convention on Human Rights. There were three pieces of information which the applicant alleged had not been disclosed:- (1) an oral account by C that she had never been abused by the applicant despite the complainer H saying in her police statement that C was present when the abuse, which was the subject of charge 2, took place and the defence had been told C had “nothing to report”; (2) an oral account given to the police by MC that she had never been abused by the applicant despite the complainer H testifying that the applicant had abused MC and CC, and the defence had been told MC had “nothing to report”; and (3) a police statement obtained from D, the applicant’s uncle, in which he said that H’s mother had a history of accusing people of sexually abusing her in the hope of obtaining compensation and had “coerced” other women into saying that they had been sexually abused for financial gain and complainer H had falsely accused him of abusing her in the past. Here the court refused the application. The court considered that none of the information which was the subject of this appeal was relevant, with the exception of C’s denial that she witnessed the applicant raping H. The court noted that the fact C did not support H was put to H in cross examination, and the applicant was acquitted of charge 2. The court stated that it could not be said that the information about C’s denial differed in any material respect from what was disclosed and might have materially weakened the Crown case or materially strengthened the defence case in relation to the charges on which he was convicted. Further, the court considered that there was no material failure of disclosure in relation to D who was not on the list of witnesses and his statement did not fall within the ambit of the rule in McDonald v HMA 2010 SC (PC) 1. The court reiterated that a trial does not become unfair simply on account of an instance of non-disclosure, it is necessary to assess the significance and consequences of the non-disclosure. The applicable test is the one enunciated in McInnes v HMA 2010 SC (UKSC) 28, namely, whether, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict. Given the court found that there was no material difference between what the defence were told and what they allege they should have been told, the McInnes test was not met.