My main argument was founded on the suspect dock identification process and on the Crown's failure to disclose the evidence of the white van. This is what the Commission had to say on the latter:

The Commission notes that the applicant is correct in his assertion that the statements of Crown witnesses were not made available to his solicitors prior to his trial. It has also taken into account the decisions of the Judicial Committee of the Privy Council in the cases of Holland v HMA 2005 SCCR 417 and Sinclair v HMA 2005 SCCR 446, in which it held that the Crown have a duty to disclose to the defence evidence in their possession which would tend to exculpate the accused, or would be likely to be of material assistance in the preparation or presentation of his defence, and that a failure to do so would be an infringement of an accused's right to a fair trial in terms of article 6(1) of the European Convention of Human Rights and could result in a conviction being overturned.

Nevertheless, the Commission notes that it has subsequently been established that not all failures to disclose relevant information will result in a miscarriage of justice. In the case of Kelly v HMA 2006 SCCR 9, the High Court held that, in determining whether such a failure was incompatible with an accused's right to a fair trial in terms of article 6(1), the critical issues included the materiality of the statement and the nature and extent of any prejudice suffered, the obligation being to disclose anything that would be likely to be of material assistance to the proper preparation or presentation of the accused's defence. In that case it was held that a failure to disclose previous statements of a witness did not violate the appellant's article 6 right to a fair trial, where the purported discrepancy identified in a statement was limited and would not have undermined the witness's credibility or reliability to any degree.

Late in the day, I sent the Commission the Police Incident Log that gave the location of the van that the witnesses had mentioned in their evidence. I submitted that since the van had been logged at a point 1½ kilometres from the alleged incident, the witnesses must have been lying. The Commission did not see it this way, however. Its report devotes a large number of words to this item of evidence, yet their reasons for rejecting it are still a bit of a mystery. I append the relevant section below:

12. The Commission has considered the submissions put forward by the applicant in relation to this matter. It has also taken into account the police incident log in which a report of a broken down van is made, which the applicant submitted with a letter dated 15 November 2006. In particular, it has taken into account the applicant's claims that the log describes the van being present around 40 minutes after the incident described by the Crown witnesses, and that the grid co-ordinates which it contains suggest that the van had broken down on the westbound carriageway of the carriageway around 1½ kilometres south-west of the eastbound carriageway spoken to by the witnesses for the Crown. The exact location of the van is not confirmed in the log, but the Commission has proceeded on the basis of the applicant's interpretation of the grid co-ordinates, in order to consider his submissions at their highest.

13. In assessing these submissions, the Commission has again considered the cases of Holland v HMA 2005 SCCR 417 and Sinclair v HMA 2005 SCCR 446, referred to in paragraph 19 of the interim statement of reasons, as well as the case of Kelly v HMA 2006 SCCR 9 referred to in paragraph 20 of the interim statement of reasons. It has reviewed its conclusions in relation to this matter in light of the additional information now put forward by the applicant. The applicant's submissions suggest that the Commission was wrong to conclude that, in terms of the test put forward in the case of Kelly, the information in the Crown witness statements would not have been of material assistance to the proper preparation or presentation of the his defence. He suggests that, had he known about the van, enquiries could have been carried out to obtain additional evidence in this regard. The report which he has submitted is cited as being such additional independent evidence which would have had a bearing on his case

14. In considering this aspect of the applicant's case, the Commission has found it helpful refer to the previous authorities of the High Court which discussed the test which should be employed in assessing additional evidence. In the case of Kidd v HMA 2000 SCCR 513 , the High Court referred to the previous cases of Church v HAM 1996 SCCR 29 and Cameron v HMA 1987 SCCR 608, and outlined the approach to be taken in any appeal based on fresh evidence. It held that the governing question in any such appeal is whether the fact that the evidence was not heard at the original trial represents a miscarriage of justice, and that it is not a question of whether the evidence is significant, but whether it is of such significance as to lead to the conclusion that a verdict returned in ignorance of it must be regarded as a miscarriage of justice. In doing so, it made clear that the significance of evidence includes considerations as to its relevance, materiality and importance, and its quality in point of credibility and reliability, the overall impression which is created being the important consideration. While it is sufficient that the evidence is capable of being regarded by a reasonable jury (or trial judge) as both credible and reliable, its cogency is of critical importance. In the case of Al Megrahi v HMA 2002 SCCR 509 the test was further outlined by the High Court, when it stated inter alia:

"(2) In an appeal based on the existence and significance of additional evidence not heard at the trial, the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound to acquit.
(3) Where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred.
(4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.
(5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial.
(6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial. "




15. Having regard to these decisions, and to the grounds on which the Commission may refer a case to the High Court in terms of section 194C of the 1995 Act, the Commission has considered whether the evidence which the applicant has now uncovered would have been likely to have had a material bearing on, or a material part to play in, the determination by the sheriff of a critical issue at the applicant's trial. It has come to the conclusion that it would not. The information provided by the applicant suggests that there was a van broken down 40 minutes after, and some distance from, the incident which was described by the witnesses for the Crown. It is not clear to the Commission why this would suggest that the witnesses were lying in describing the incident which they spoke to in evidence. The information does not clearly undermine the witnesses' reliability, as it does not provide proof that they lied about what they saw earlier in the day. Nor would it have been likely to have had a material bearing on their reliability, as it was not in dispute that the witnesses were travelling eastbound, and it is therefore unlikely that any suggestion that they may have made a mistake about what they saw on the basis of this report would have been successful. There is no way of confirming if the van referred to in the log was the same vehicle to which the witness's referred in their evidence. Moreover, the Commission does not consider that this information would have had a material bearing on the sheriff's consideration of the standard of the applicant's driving, as spoken to by the witnesses in their evidence.

So, after the failure of logic and common sense highlighted in the paragraph above, the Commission said it was "not minded" to refer the case to the High Court.

The European Court of Human Rights