Macklin v Her Majesty’s Advocate (Scotland) [2015] UKSC 77

Macklin was convicted of firearms offences based largely on police dock identifications. Years later, undisclosed witness statements and fingerprint evidence emerged. The Supreme Court dismissed his appeal, confirming the High Court had correctly applied the McInnes disclosure test and that the Supreme Court's jurisdiction was limited.

Facts

The appellant, Paul Macklin, was convicted on 26 September 2003 at Aberdeen High Court of possession of a handgun contrary to section 17 of the Firearms Act 1968 and of assaulting two police officers, Sergeant Ferguson and Constable Reid, by repeatedly pointing the handgun at them during a daylight pursuit in Aberdeen. The sole issue at trial was the identification of the gunman, who had escaped in a black Ford Sierra subsequently abandoned nearby.

At trial, both officers identified the appellant in the dock. Sergeant Ferguson stated he had “No doubt whatsoever” about his identification, and Constable Reid, who had earlier identified the appellant from photographs at police headquarters, confirmed there was no possibility he had identified the wrong person. Two defence witnesses said the man in the dock was not the gunman, and an alibi witness gave evidence, although his credibility was undermined. No identification parade had been held.

Following developments in disclosure practice prompted by Holland v HM Advocate and Sinclair v HM Advocate (2005), the Crown later disclosed additional material: a fingerprint belonging to Thomas Pirie (a person with a criminal record) found on the abandoned car’s rear-view mirror, and statements from six witnesses including one giving a description inconsistent with the appellant’s appearance and two who had failed to identify the appellant from photographs.

Issues

The compatibility issue before the Supreme Court was whether the Lord Advocate had acted incompatibly with the appellant’s Convention rights under article 6(1) ECHR by: (a) failing to disclose material evidence to the defence; and (b) leading and relying on dock identifications by the police officers without prior identification parades and without the undisclosed material being available. Counsel for the appellant emphasised these were not two separate complaints but a cumulative challenge to the fairness of the proceedings.

A further jurisdictional issue arose concerning the scope of the Supreme Court’s power under section 288AA of the Criminal Procedure (Scotland) Act 1995, particularly whether it could review the High Court’s application (as opposed to identification) of the correct legal test.

Arguments

Appellant

Counsel argued that, since current Crown practice would have led to disclosure of all the relevant material, its non-disclosure at the time constituted a breach of article 6(1). On the consequences of non-disclosure, it was submitted that, although the High Court had framed its analysis in terms of the second limb of the McInnes test, its conclusions were so manifestly wrong that the test could not in reality have been applied. Counsel relied on a passage from Lord Hope’s judgment in McInnes to argue that the Supreme Court could examine how the High Court applied the test. Comparison was made with Holland v HM Advocate, where a breach of article 6 had been found on arguably weaker facts.

Crown

The Crown conceded that three of the undisclosed statements ought to have been disclosed, but maintained that disclosure would not have given rise to a real possibility of a different verdict. The Crown conceded that the Supreme Court might have jurisdiction if the High Court had merely purported to apply the McInnes test without doing so, but maintained this did not permit challenges to the correctness of its application.

Judgment

Jurisdiction

Lord Reed explained that the Supreme Court does not sit as a general criminal appeal court. By virtue of section 124(2) of the 1995 Act, decisions of the High Court of Justiciary are final and conclusive save for limited exceptions, including appeals under section 288AA on compatibility issues. The compatibility issue concept, introduced by the Scotland Act 2012, replaced certain devolution issues; the questions raised here were convertible devolution issues that became compatibility issues on 22 April 2013.

The applicable test

The court reaffirmed the two-stage test in McInnes v HM Advocate [2010] UKSC 7: first, whether the undisclosed material might have materially weakened the Crown case or materially strengthened the defence case; second, 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. This reflects the approach of the Strasbourg court in Edwards v United Kingdom (1992) 15 EHRR 417 and Mansell v United Kingdom (2003) 36 EHRR CD 221.

Application by the High Court

The High Court had concluded that the fingerprint evidence and three of the statements did not require disclosure under the first limb. As to the three statements that ought to have been disclosed, the High Court found no real possibility that the jury would have returned a different verdict. The Supreme Court held that the High Court had clearly identified and applied the correct test.

Scope of review

Lord Reed reaffirmed that, per McInnes, the Supreme Court can decide whether the High Court adopted the correct legal test but not whether that test was correctly applied to the facts. He addressed the appellant’s reliance on a passage at paragraph 25 of Lord Hope’s opinion in McInnes:

As I have already observed, it is not for this court to say whether the test was applied correctly. But it is open to it to examine the reasons given by the appeal court for concluding that there had not been a miscarriage of justice to see whether they show that it applied the correct test.

Lord Reed held that this passage did not qualify the earlier statement at paragraph 18 that application of the test lies exclusively within the High Court’s jurisdiction. The passage merely addressed whether the test described had been the correct one. The Supreme Court emphasised that the finality of the High Court’s decisions must not be undermined by challenges to the application of the test “dressed up” as arguments about identification of the test.

Rejection of submissions

The argument based on current Crown practice was rejected as a non sequitur; the practice of the Crown is not the measure of article 6(1) requirements. The comparison with Holland was rejected because that case preceded McInnes, was decided on different procedural circumstances (separate hearings on disclosure and dock identification by differently constituted courts), and comparing outcomes across different facts says nothing about the correctness of either decision.

Lord Gill’s concurring judgment

Lord Gill, with whom the other Justices agreed, reached the same conclusions, emphasising that counsel had “wrested” Lord Hope’s words from context. He noted that dock identification was conceded not to be per se incompatible with article 6, and the cumulative submission based on Holland was misconceived given that the “real possibility” test established in McInnes is now settled.

Implications

The decision confirms important boundaries on the Supreme Court’s jurisdiction in Scottish criminal appeals under section 288AA of the 1995 Act. The court may determine whether the High Court of Justiciary has identified the correct legal test for a compatibility issue, but cannot review whether that test was correctly applied to the facts. That allocation of functions preserves the statutory finality of High Court decisions under section 124(2).

The judgment reinforces the two-stage McInnes test as the settled domestic framework for assessing alleged breaches of article 6(1) arising from non-disclosure, replacing earlier formulations such as that used in Holland. Practitioners should note that current Crown disclosure practice, which may be more generous than the constitutional minimum, does not define the threshold for article 6(1) compliance: the question remains whether undisclosed material might have materially weakened the Crown case or strengthened the defence.

The decision also signals that attempts to recast disagreements with the High Court’s application of the test as challenges to whether the test was applied at all will be treated with scepticism. Save in genuinely exceptional cases, such arguments will not succeed in opening the door to Supreme Court review.

The case matters principally to Scottish criminal practitioners and to those advising on appeals raising compatibility issues. It clarifies the procedural architecture introduced by the Scotland Act 2012, including the operation of convertible devolution issues under the 2013 transitional Order. The judgment leaves untouched the substantive jurisprudence on dock identification, which was not advanced as a free-standing compatibility issue.

Verdict: Appeal dismissed. The Supreme Court held that the High Court of Justiciary had identified and applied the correct test from McInnes v HM Advocate, and that it had no jurisdiction to review the High Court’s application of that test to the facts. The proceedings were remitted to the High Court.

Source: Macklin v Her Majesty's Advocate (Scotland) [2015] UKSC 77