Privy Council to hear murder conviction appeal over lack of disclosure on witness statements

The Privy Council, the UK's highest appeal court is to hear a bid to overturn a murder conviction, where crucial witness statements were apparently not disclosed to the defence at the time of trial.

The Sunday Herald reports :

Attempt to overturn murder conviction as legal team casts doubt on evidence

Rare legal move as UK’s highest appeal court prepares to hear case

By John Bynorth, Home Affairs Editor

A MAN will take his bid to overturn his murder conviction to the UK's highest appeal court after the High Court blocked his appeal bid.

Brendan Dixon's legal team has argued that crucial witness statements, which they claim could have cleared him, were not disclosed to the defence at his trial.

Now Dixon has been granted leave to appeal directly to the judicial committee of the Privy Council after statements were uncovered which his legal team suggests cast serious doubts about whether his conviction for the murder of Margaret Irvine, 91, in 2003, is safe.

It is a rare legal move, with only a handful of cases every year winning an appeal directly to the council's judicial committee which sits as the final court of appeal on devolved issues.

If Dixon, 38, is successful, legal experts believe it could spark a number of similar appeals to the council on the controversial issue of non-disclosure of evidence.

One legal source told the Sunday Herald: "If the decision of the appeal court is overturned, and quite comprehensively, the Lord Advocate will presumably have to re-investigate a large number of cases where there has been non-disclosure.

"It's difficult to overstate how important this case is in trying to get at the issue of historical non-disclosure of evidence. It has been a shameful stain on the justice system. It's pretty obvious that full disclosure has not taken place with Dixon."

Dixon, 38, and his co-accused Patrick Docherty, 42, were found guilty at the High Court in Kilmarnock in May 2005 of Irvine's murder in Galston, Ayrshire, despite no forensic evidence linking them to the crime.

Their trial ended shortly before the practice of disclosure was tightened following the Privy Council's decision to quash the convictions of James Holland, who was convicted of assault and robbery, and Alvin Sinclair. In the case, the Crown's refusal to disclose documents at their trial was found to have breached their right to a fair trial under the European Convention on Human Rights.

Docherty's appeal team has uncovered evidence which it claims was not presented to the defence, including a restaurant worker who wasn't called to give evidence, and non-disclosure is one of the grounds for his appeal. The witness also provided precognition testimony that she had seen two men outside the dead woman's house on the day her body was found. One of the men, who was picked out from a photo identification, gave evidence for the prosecution.

Dixon and Docherty's is one of a number of cases before the appeal courts which preceded the Holland and Sinclair case. Any decision in a Scottish case by the Privy Council's judicial committee, which sits in a courtroom in Downing Street, is binding on Scottish courts.

The development came after Lord Coulsfield, in a report commissioned by the previous administration, last year called on the government to introduce legislation to ensure that prosecutors are legally bound to hand over full information to defence lawyers before a trial. The government is consulting on the practice, which is already in force in England and Wales.

The legal source added: "It's a high risk strategy to go to the Privy Council as if it says no to the appeal on the grounds of disclosure that's it. It's ironic that given the nature of the legislation a court sitting outside Scotland has jurisdiction in criminal matters north of the border."

Dixon's lawyer Graham Cunningham said: "Had this evidence been available there might have been a different verdict and this decision is a big step forward. This information is beneficial to my client's appeal. The best scenario is the Privy Council saying this evidence was so vital there was a miscarriage of justice."

Dixon's brother-in-law Kevin Donald, 36, who has led a three-year campaign to clear the father-of-two, said: "Brendan is buoyed by this news. There were no DNA or fingerprints linking Brendan to Margaret Irvine's murder - and no sightings of him. If we get the documents, it will help prove his innocence and show that a murderer is still walking around. This is the furthest we have ever got with this case and raises wider issues about how the Crown held back documents which could have cleared people."

Lord Advocate Elish Angiolini, or the Solicitor General Frank Mulholland, is expected to argue on behalf of the Crown at the two-day hearing, which is set down for next month, that Dixon's defence did have access to the documents and could, therefore, have used it as part of his defence.

The Crown Office declined to comment on the case.