Fraser v HM Advocate [2011] UKSC 24

The disappearance of Arlene Phillips from her home town of Elgin in 1998 has become one of Scotland’s most notorious cases and today the man convicted of her murder, Nat Fraser, has had his appeal to the Supreme Court allowed on Human Rights Grounds.  The UK Supreme Court has remitted the decision to the High Court for consideration as to whether to authorise a fresh appeal, as this decision is always taken by the High Court of Justiciary prior to quashing a conviction.  Technically the UK Supreme Court has authority under rule 29(1) of the Supreme Court Rules 2009 to grant authority to the Crown to mount a fresh prosecution, but it seems keen to infringe upon the workings of the High Court of Justiciary in its appellate function as the court of last resort in criminal matters in Scotland as little as possible and decided that the High Court was the best place for the question as to whether authority for a fresh prosecution should be granted or not to be taken.

Lord Hope, in delivering the decision of the UK Supreme Court said:

This matter is best dealt with by the High Court of Justiciary. So the case will be remitted to that court for this question to be dealt with, and it will be for that court to quash the conviction.

We wish to add two things. First, it will be appreciated that it is of the first importance that the media should refrain from any discussion of the detail or strength of the evidence against the appellant until the issue of whether there is to be a retrial has been resolved.  

The decision that we have taken in these proceedings, and the reasons for it, may be published. But those whose programmes and publications are available to the public in Scotland must not do or say anything that might prejudice the prospects of a retrial, if that is what the High Court of Justiciary decides to authorise.

There is no denying that withholding evidence by the Crown which weakened what they saw as the cornerstone to their case renders a trial unfair.  The Crown evidence was unable to be tested properly as a result of that and this puts the defence on the back foot.  Exactly what the outcome of the trial would have been had the evidence of PC Lynch and WPC Clark been heard is something one can only speculate on, and something which one must not do while the possibility of further criminal proceedings exists, certainly not in any public forum that may prejudice any future criminal proceedings that may be taken by the Crown.

Authority from the UK Supreme Court is clear that the refusal to hear a devolution minute by the Court of Appeal is a determination of that issue and providing that refusal is made by two or more judges of the Court of Appeal can be appealed to the UK Supreme Court under Schedule 6 of the Scotland Act 1998.

Unlike in Cadder v HMA, the UK Supreme Court has made a determination that leaves the High Court of Justiciary no other option than to quash the conviction of Nat Fraser.  By deciding that the original trial was unfair it results in a Miscarriage of Justice.  The decision of Cadder still required the High Court of Justiciary to look again at the safety of the conviction in light of discounting evidence obtained under police interrogation (a matter that can only be examined under section 106 of the Criminal Procedure (Scotland) Act 1995 and one over which the Supreme Court clearly has no jurisdiction).

This will, once again, no doubt raise the questions that surfaced after the decision in Cadder over the exact role that the UK Supreme Court has in the Scottish Legal System.  The High Court of Justiciary has always been the final court of appeal in Scottish Criminal matters, and that position is what the Scotland Act 1998 intended on keeping (having expressed nowhere explicitly a right to have appeals under s.106 of the 1995 Act examined by the UK Supreme Court).  However, the UK Supreme Court operates a constitutional function which means that matters that arise relating to the UK’s Constitution can be appealed to that Court.

Is the ability of the UK Supreme Court to determine devolution minutes in relation to Scottish criminal cases infringing more and more upon the position of the High Court of Justiciary as the Court of last resort in Scottish Criminal Law?  Some would argue yes, but it is hard to see how the position could be any different with Scotland remaining part of the United Kingdom.  Devolution minutes are difficult as while they relate only to EC Law or to the Human Rights as granted by the European Convention and enacted by the Human Rights Act 1998 their applicability is to all areas of Scottish Criminal Law and that means appeals to the Supreme Court by the “backdoor” are possible in any case where Article 6 may have been infringed.

It really is a difficult point indeed.

The full judgment of the UK Supreme Court in the case of Fraser v HM Advocate can be found here.

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NOTE:  As there may be fresh criminal proceedings in this case please do not post any comments on this blog that could interfere with those proceedings.  That includes, but is not limited to, any proclamations of Nat Fraser’s guilt or innocence and the strength or weakness of the Crown case.  It is important in the interests of justice that due process is allowed to take place.

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