Reference from Scottish Criminal Cases Review Commission:- On 13 November 2003 at the High Court at Kilmarnock the appellant was convicted by a majority verdict of murdering three people and attempting to murder three more by wilfully setting fire to a house at 17 Sanderson Avenue, Irvine. On 4 December 2003 the appellant was sentenced to life imprisonment with a punishment part of 27 years imprisonment. The appellant appealed against conviction and sentence and on 19 May 2005 the Court refused the appellant's appeal against conviction. On 30 August 2006 the Court upheld the appeal against sentence substituting a period of 23 years. On 7 August 2008 the Scottish Criminal Cases Review referred the case in terms of Section 194B of the Criminal Procedure (Scotland) Act 1995. On 5 December 2008 the appellant lodged a note of appeal against conviction following on the Commission's referral two grounds of appeal were argued. The first of these related to the Crown failing to disclose the outstanding drugs charges of the essential Crown witness Devine which resulted in the defence being unable to properly prepare and present the case for the appellant, and thus breached the appellant's Article 6 rights and deprived him of a fair trial. The second ground related to a contention that that the jury returned a verdict which no reasonable jury, properly directed, could have returned in terms of Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. Here the court considered firstly whether the Crown should have disclosed the relevant material. The court then went on to consider:- "had the outstanding charges in relation to Devine been disclosed and taking all the circumstances of the trial into account, is there is a real possibility that the jury would have arrived at a different verdict?" The issue for the court turned on the issue of whether the non-disclosure gave rise to a real risk of prejudice to the defence.
Court: Court Of Session (Appeal Court) (Scotland)

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