Fraser v HM Advocate
Encyclopedia
Fraser v Her Majesty's Advocate [2011] UKSC 24 is a controversial decision of the Supreme Court of the United Kingdom
relating to the effect of non-disclosure of evidence to the defence at trial and the role of the Supreme Court of the United Kingdom in Scots criminal law
.
at Edinburgh
, before Lord Mackay of Drumadoon and a jury, of the murder of his wife Arlene
. He was duly sentenced to life imprisonment
with a punishment part of 25 years. His wife had disappeared in 1998 and he insisted that he was innocent of any involvement in her disappearance and presumed death. The cornerstone of the Crown
's case against Fraser was that on 7 May he had returned certain rings from the dead body of his wife, 9 days after she vanished, in order to foster the appearance that she had decided to leave of her own volition. The trial judge directed the jury that they were obliged to acquit Fraser if they were unsure that he had returned the rings to the house.
, Lord Gill, Lord Osborne and Lord Johnston
. It emerged that two police constables had given witness statements to the Crown before the trial to the effect that they had seen jewellery, including the rings, in the Fraser's house on the 28th and 29th April. Fraser's two grounds of appeal were that the new evidence had a vital bearing on the jury's verdict, and that its non-disclosure to the defence had cause a miscarriage of justice
. However, the court unanimously refused Fraser's appeal on the grounds, that notwithstanding the fresh evidence and the non-disclosure, the strength of the circumstantial evidence against Fraser was so strong that no miscarriage of justice had occurred.
on the grounds that his case involved a devolution issue, namely that his prosecution and conviction had infringed his rights under Article 6 of the European Convention on Human Rights. His application was refused as incompetent by the Appeal Court on 24 March 2009, on the grounds that the issues had already been determined in the earlier appeal proceedings and that Parliament had not intended, in the Scotland Act 1998
, to allow the Privy Council to review the merits of decisions of the Appeal Court.
Fraser then applied for special leave to appeal to the Privy Council directly. However, the determination of his application was delayed pending the resolution of two other Scottish cases, by which point the jurisdiction of the Privy Council to determine devolution issues under the Scotland Act 1998 had been transferred to the Supreme Court. On 20 May 2011, the Supreme Court granted his application for special leave to appeal.
Lord Hope of Craighead delivered the majority judgment. Reaffirming that the High Court remained the final court of appeal in criminal matters in Scotland and that the Supreme Court had no jurisdiction to review the merits of its decisions made in exercise of that function, he ruled that the Appeal Court had applied the wrong test in law in relation to article 6(1), namely, whether they believed that there had been a miscarriage of justice rather than whether there was 'a real possibility that the jury at this trial would have arrived at a different verdict' which created a miscarriage of justice, based on the precedent of McInnes v Her Majesty's Advocate. He concluded that a real possibility existed, and accordingly allowed the appeal, and remitted the matter to the Appeal Court with a direction to quash Fraser's conviction, once it had decided whether he should be re-tried, in exercise of the court's powers under paragraph 13 of Schedule 6 to the Scotland Act 1998.
Lord Brown of Eaton-under-Heywood agreed that the Appeal Court had applied the wrong test in law and would have allowed the appeal but was inclined to have remitted the whole case to the Appeal Court, absent a direction to quash. He did not, however, carry this view to dissent.
On 17 June 2011, in accordance with the order of the Supreme Court, the Appeal Court quashed Fraser's conviction and granted authority to bring a new prosecution. The Supreme Court ruling was controversially attacked by Scottish Justice Secretary Kenny McAskill MSP
who threatened to withhold funding for court on the grounds that it was undermining Scottish judicial independence. In addition, Scottish First Minister
Alex Salmond
MSP convened an expert group to limit the referral of Scottish cases to the court on human rights grounds.
Both men were accused of "unbelievable ignorance" by former Principal Advocate Depute at the Crown Office, Brian McConnachie and for "interfering in the independence of the judiciary and for making "highly personal" attacks on senior legal figures" by Richard Keen, dean of the Faculty of Advocates, and Cameron Ritchie, president of the Law Society of Scotland. Legal commentator Joshua Rozenberg
claimed that Salmond had made an "extraordinary personal attack" against Deputy President Lord Hope of Craighead, as part of a Scottish nationalist
agenda.
The Scotland Bill 2011
was amended, partially as a result of the decision in Fraser, to insert new section 98A into the Scotland Act 1998 which would create a statutory right of appeal to the Supreme Court from the Appeal Court in the case of an issue of compatibility with the Convention only.
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
relating to the effect of non-disclosure of evidence to the defence at trial and the role of the Supreme Court of the United Kingdom in Scots criminal law
Scots criminal law
Scots Criminal Law governs the rules of criminal law in Scotland. Scottish criminal law relies far more heavily on common law than in England and Wales...
.
Background and trial
On 29 January 2003, Nat Fraser was convicted by a majority verdict at the High CourtHigh Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
at Edinburgh
Edinburgh
Edinburgh is the capital city of Scotland, the second largest city in Scotland, and the eighth most populous in the United Kingdom. The City of Edinburgh Council governs one of Scotland's 32 local government council areas. The council area includes urban Edinburgh and a rural area...
, before Lord Mackay of Drumadoon and a jury, of the murder of his wife Arlene
Murder of Arlene Fraser
Arlene Fraser was a 33-year-old woman from Elgin in Moray, Scotland, who disappeared on 28 April 1998 after her two children went off to school. Although her body was never found, the case has been treated as a murder and is currently unsolved. Her husband Nat Fraser was suspected of killing her...
. He was duly sentenced to life imprisonment
Life imprisonment
Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life...
with a punishment part of 25 years. His wife had disappeared in 1998 and he insisted that he was innocent of any involvement in her disappearance and presumed death. The cornerstone of the Crown
Crown Office and Procurator Fiscal Service
The Crown Office and Procurator Fiscal Service provides the independent public prosecution service for Scotland, and is a Ministerial Department of the Scottish Government. The department is headed by Her Majesty's Lord Advocate, who under the Scottish legal system is responsible for prosecution,...
's case against Fraser was that on 7 May he had returned certain rings from the dead body of his wife, 9 days after she vanished, in order to foster the appearance that she had decided to leave of her own volition. The trial judge directed the jury that they were obliged to acquit Fraser if they were unsure that he had returned the rings to the house.
Initial appellate proceedings
Fraser lodged a note of appeal against conviction and sentence to the Court of Criminal Appeal. The appeal was heard by the Lord Justice ClerkLord Justice Clerk
The Lord Justice Clerk is the second most senior judge in Scotland, after the Lord President of the Court of Session.The holder has the title in both the Court of Session and the High Court of Justiciary and is in charge of the Second Division of Judges in the Court of Session...
, Lord Gill, Lord Osborne and Lord Johnston
Alan Johnston, Lord Johnston
Alan Charles Macpherson Johnston was a Senator of the College of Justice until his death in 2008 at the age of 66. He was appointed in 1994. He served as Chairman of the Scottish Division of the Employment Appeal Tribunal from 1996 to 2005. He graduated from Jesus College, Cambridge with a BA...
. It emerged that two police constables had given witness statements to the Crown before the trial to the effect that they had seen jewellery, including the rings, in the Fraser's house on the 28th and 29th April. Fraser's two grounds of appeal were that the new evidence had a vital bearing on the jury's verdict, and that its non-disclosure to the defence had cause a miscarriage of justice
Miscarriage of justice
A miscarriage of justice primarily is the conviction and punishment of a person for a crime they did not commit. The term can also apply to errors in the other direction—"errors of impunity", and to civil cases. Most criminal justice systems have some means to overturn, or "quash", a wrongful...
. However, the court unanimously refused Fraser's appeal on the grounds, that notwithstanding the fresh evidence and the non-disclosure, the strength of the circumstantial evidence against Fraser was so strong that no miscarriage of justice had occurred.
Appeal to the Supreme Court
Fraser applied to the High Court for leave to appeal to the Judicial Committee of the Privy CouncilJudicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
on the grounds that his case involved a devolution issue, namely that his prosecution and conviction had infringed his rights under Article 6 of the European Convention on Human Rights. His application was refused as incompetent by the Appeal Court on 24 March 2009, on the grounds that the issues had already been determined in the earlier appeal proceedings and that Parliament had not intended, in the Scotland Act 1998
Scotland Act 1998
The Scotland Act 1998 is an Act of the Parliament of the United Kingdom. It is the Act which established the devolved Scottish Parliament.The Act will be amended by the Scotland Bill 2011, if and when it receives royal assent.-History:...
, to allow the Privy Council to review the merits of decisions of the Appeal Court.
Fraser then applied for special leave to appeal to the Privy Council directly. However, the determination of his application was delayed pending the resolution of two other Scottish cases, by which point the jurisdiction of the Privy Council to determine devolution issues under the Scotland Act 1998 had been transferred to the Supreme Court. On 20 May 2011, the Supreme Court granted his application for special leave to appeal.
Lord Hope of Craighead delivered the majority judgment. Reaffirming that the High Court remained the final court of appeal in criminal matters in Scotland and that the Supreme Court had no jurisdiction to review the merits of its decisions made in exercise of that function, he ruled that the Appeal Court had applied the wrong test in law in relation to article 6(1), namely, whether they believed that there had been a miscarriage of justice rather than whether there was 'a real possibility that the jury at this trial would have arrived at a different verdict' which created a miscarriage of justice, based on the precedent of McInnes v Her Majesty's Advocate. He concluded that a real possibility existed, and accordingly allowed the appeal, and remitted the matter to the Appeal Court with a direction to quash Fraser's conviction, once it had decided whether he should be re-tried, in exercise of the court's powers under paragraph 13 of Schedule 6 to the Scotland Act 1998.
Lord Brown of Eaton-under-Heywood agreed that the Appeal Court had applied the wrong test in law and would have allowed the appeal but was inclined to have remitted the whole case to the Appeal Court, absent a direction to quash. He did not, however, carry this view to dissent.
Aftermath
Member of the Scottish Parliament
Member of the Scottish Parliament is the title given to any one of the 129 individuals elected to serve in the Scottish Parliament.-Methods of Election:MSPs are elected in one of two ways:...
who threatened to withhold funding for court on the grounds that it was undermining Scottish judicial independence. In addition, Scottish First Minister
First Minister of Scotland
The First Minister of Scotland is the political leader of Scotland and head of the Scottish Government. The First Minister chairs the Scottish Cabinet and is primarily responsible for the formulation, development and presentation of Scottish Government policy...
Alex Salmond
Alex Salmond
Alexander Elliot Anderson "Alex" Salmond MSP is a Scottish politician and current First Minister of Scotland. He became Scotland's fourth First Minister in May 2007. He is the Leader of the Scottish National Party , having served as Member of the Scottish Parliament for Gordon...
MSP convened an expert group to limit the referral of Scottish cases to the court on human rights grounds.
Both men were accused of "unbelievable ignorance" by former Principal Advocate Depute at the Crown Office, Brian McConnachie and for "interfering in the independence of the judiciary and for making "highly personal" attacks on senior legal figures" by Richard Keen, dean of the Faculty of Advocates, and Cameron Ritchie, president of the Law Society of Scotland. Legal commentator Joshua Rozenberg
Joshua Rozenberg
Joshua Rozenberg is a British legal commentator and journalist.After taking a law degree at Wadham College, University of Oxford, he qualified as a solicitor in 1976, at Dixon Ward solicitors in Richmond, Surrey....
claimed that Salmond had made an "extraordinary personal attack" against Deputy President Lord Hope of Craighead, as part of a Scottish nationalist
Scottish independence
Scottish independence is a political ambition of political parties, advocacy groups and individuals for Scotland to secede from the United Kingdom and become an independent sovereign state, separate from England, Wales and Northern Ireland....
agenda.
The Scotland Bill 2011
Scotland Bill 2011
The Scotland Bill is a bill proposed by the Conservative-Liberal Democrat coalition UK Government, with broad support from the opposition Labour Party, setting out amendments to the Scotland Act 1998, with the aim of devolving further powers to Scotland....
was amended, partially as a result of the decision in Fraser, to insert new section 98A into the Scotland Act 1998 which would create a statutory right of appeal to the Supreme Court from the Appeal Court in the case of an issue of compatibility with the Convention only.
Further reading
- Fraser v Her Majesty's Advocate
[2011 UKSC 24] (25 May 2011)