Input:
If a criminal who previously had leave to remain in this country is liable to deportation because of his offences, but cannot actually be deported because to remove him would infringe his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, with the result that the deportation order is revoked, what is the status of his previous leave to remain? It is common ground that the making of a deportation order renders his leave to remain invalid.
The question in this appeal is whether, if the deportation order is revoked, his leave revives or whether the Secretary of State is at that stage free to consider afresh what leave to grant to him.
Mr George was born in Grenada in 1984 and came to this country when 11 in 1995.
As at March 2000 he had been granted indefinite leave to remain here.
Since then, however, he has been convicted on seven different occasions of offences, some relatively minor but some not.
The convictions include five counts of supplying cocaine in January 2002, for which he was sentenced to three years detention in a Young Offenders Institution, driving whilst disqualified and without insurance in December 2003, which resulted in a sentence of eight weeks detention, and, on 7 April 2005, two counts of possession of, respectively, heroin and cocaine, with intent to supply, occasioning four years imprisonment.
On the basis of these convictions, the Secretary of State judged that his deportation would be conducive to the public good.
In January 2007 notice was duly served on him that a deportation order was to be made.
There ensued a series of unsuccessful attempts to challenge that decision, in the Asylum and Immigration Tribunal and the High Court, which lasted until April 2008.
When those rights of appeal were exhausted, the Secretary of State was able actually to make the deportation order of which advance notice had been given, and that order was made on 24 April 2008.
Mr George, however, made further application to the Secretary of State contending that to deport him would infringe his article 8 rights to respect for his private and family life.
He has a partner whom he has known since he was at school, and although they do not and have not lived together, they have a daughter born in 2005 who sees her father reasonably often and stays with him on occasion.
The Secretary of State took the view that, balancing this level of family life against Mr Georges convictions, his deportation would not amount to a breach of article 8, and she refused to revoke the deportation order.
However, after a number of intermediate stages of legal process, Mr Georges immigration appeal against that last decision was allowed by the immigration judge in a ruling promulgated on 31 March 2009.
She held that, although the case was a borderline one, the balance between the conviction history and the family life had been struck wrongly by the Secretary of State.
It is common ground that the effect of this decision was to revoke the deportation order on the grounds that to implement it would infringe Mr Georges article 8 rights to family life.
Subsequently, Mr Georges solicitors called on the Secretary of State to confirm that he had indefinite leave to remain, but she refused to do so.
Instead she granted him six months discretionary leave on 2 August 2013.
This court was told that since that expired it has been replaced with a grant of three years discretionary leave.
It appears that the Secretary of State is treating him as she treats a number of other immigrants, and is implementing what may turn out to be a pattern of successive grants of discretionary leave to remain and which may result, if all goes well, in that leave becoming indefinite, but not until something of the order of 10 years have passed.
His case, however, is that his original indefinite leave to remain has revived when the deportation order was revoked.
He advanced this case by way of application for judicial review of the Secretary of States decision not to reinstate indefinite leave to remain but instead to make grants of time limited leave.
He failed before the judge but before the Court of Appeal succeeded by a majority.
This is the appeal of the Secretary of State from the latter decision: [2013] 1 WLR 1319.
The statutory provisions for deportation
The statutory trail begins with the Immigration Act 1971 (the 1971 Act).
Although it has been amended subsequently, the relevant provisions date from its enactment and have stood (save for immaterial adjustments) for 40 years.
By section 3 it requires that those with no specific right of entry to the United Kingdom need leave to enter, which leave may be indefinite or time limited and may be subject to conditions.
Section 3(5) and (6), together with section 5, contain the provisions for deportation.
First, subsections 3(5) and (6) deal with when a person is liable to deportation.
They say: (5) A person who is not a British citizen is liable to deportation from the United Kingdom if (a) the Secretary of State deems his deportation to be conducive to the public good; or (b) another person to whose family he belongs is or has been ordered to be deported. (6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
Once a person is liable to deportation under these rules, one turns to section 5, which provides for the actual making of a deportation order: 5(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force. (2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.
The final stage is provided for by section 5(5) and Schedule 3, which permits the Secretary of State to give directions for removal of those against whom a deportation order is in force, which directions may stipulate such matters as the manner of removal and form of travel.
These deportation provisions remain in force and are the ones which applied to Mr George.
It should, however, be noted that since the passing of the UK Borders Act 2007 (the 2007 Act), the commonest source of a decision to deport a convicted person lies in the provisions of section 32 of that Act, styled automatic deportation.
The effect of this section is that (i) a non British citizen who (inter alia) is sentenced to a term of 12 months imprisonment or more is termed a foreign criminal, (ii) as such his deportation is deemed to be conducive to the public good for the purposes of section 3(5)(a) of the 1971 Act so that he is liable to deportation, and (iii) the making of a deportation order is mandatory rather than discretionary, and irrevocable, unless specific exceptions apply, of which one is that removal would entail infringement of Convention rights.
It follows that in Mr Georges case: i) once the Secretary of State had decided under section 3(5)(a) of the 1971 Act that his deportation would be conducive to the public good, he became liable to deportation; the notice served on him in January 2007 warned him of an impending deportation order in consequence; (ii) at that stage his indefinite leave to remain continued extant but precarious, as it did throughout the 18 months or so following, during which unsuccessful attempts were made to challenge the decision that he was liable to deportation; this is consistent with the general scheme of the immigration appeals system, under which whilst appeals are pending suitable (if varying) provision is made to preserve the position in the interim; (iii) when in April 2008 the deportation order was made under section 5(1) of the 1971 Act the consequence was that his indefinite leave to remain was invalidated under the closing words of that subsection; (iv) the immigration judges ruling in March 2009 that his article 8 rights would be infringed by deportation was made on his appeal against the refusal by the Secretary of State to revoke the deportation order; the consequence is agreed to be that the deportation order was thereby revoked; (v) he remains liable to be deported, but an order for his deportation cannot be made in his present circumstances because it would entail an infringement of his Convention rights.
The case for revival of indefinite leave to remain
For Mr George, the carefully crafted submissions of Mr Knafler QC that his indefinite leave to remain revived when the deportation order was revoked can conveniently be considered under 2 headings: (a) it is said that as a matter of construction, section 5(1) and (2) of the 1971 Act mean that upon revocation the position reverts to the status quo ante, viz the indefinite leave revives; it is said that the position is made clear by considering other statutes (b) in pari materia, in particular section 76 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), section 10 of the Immigration and Asylum Act 1999 (the 1999 Act), and the automatic deportation provisions of the 2007 Act (paragraph 7 above).
Section 5(1) & (2) of the 1971 Act
Mr Knaflers submission is that section 5(1) prescribes three consequences of a deportation order a direction to leave, a prohibition on return and the invalidation of any existing leave to remain.
Accordingly, he says, revocation under section 5(2) reverses all three consequences.
This, however, does little more than assume what it seeks to prove.
His three consequences of a deportation order are in any event of differing character; the first two require obedience by action or omission on the part of the individual, whereas the third is a statement of a legal effect.
The wording of these two sections does not by itself provide a conclusive answer to the question of whether revocation of a deportation order operates to revive leave to remain which the making of the order invalidated.
If anything, the wording tends to suggest that revocation operates as from the moment it occurs, that is to say is prospective rather than retrospective.
It is from that moment onwards that the individual is no longer under an obligation to leave, and is free to return.
Consistently with that, one might expect that the invalidation of leave which has occurred through the making of the deportation order is not undone.
Mr Knaflers associated submission is that the words shall cease to have effect in section 5(2) govern both revocation and the different trigger of the individual becoming a British citizen.
Even if they did, that does not help answer the question what is meant by cease to have effect, which could bear either a prospective or retrospective meaning, albeit it more strongly suggests the former.
But in any event, it is quite clear that these words are associated only with the citizenship trigger and not with revocation.
It makes perfectly good sense for the subsection to distinguish between them since the first depends on the act of the Secretary of State (or the Immigration Judge on appeal) whereas the latter is independent of any act of hers.
The wording of section 5(2) may by itself be capable of bearing the meaning that revocation reverses the legal effect of the deportation order and thus revives leave to remain, but if that had been the intent, one might have anticipated the statute saying so.
What is, however, completely clear is that it has been treated from the outset by relevant persons operating or commenting upon the Act as meaning that revocation did not undo the invalidation of leave to remain which had been achieved by section 5(1).
The body of evidence of this is considerable.
It includes the following. (i) Draft Immigration Rules were prepared contemporaneously with the passage through Parliament of the 1971 Act (Immigration Rules: Control after Entry (Cmnd 4610) as amended by Cmnd 4792); these were considered by both Houses prior to the completion of the Acts legislative progress; the draft rules included paragraph 58 which stated in terms: Revocation of the deportation order does not entitle the person concerned to re enter the United Kingdom; it renders him eligible to qualify for admission under the immigration rules. (ii) That provision was then repeated at paragraph 66 of the substantive Statement of Immigration Rules for Control after Entry (HC 510), which was laid before Parliament on 23 October 1972. (iii) Every subsequent Statement of Changes in Immigration Rules has contained the same proposition in identical terms, including the current one (1994) (HC 395) at paragraph 392; all have been laid before Parliament pursuant to section 3(2) of the 1971 Act, under the negative resolution procedure. (iv) Successive editions of Macdonalds Immigration Law and Practice in the United Kingdom from the first (1983) until the current 8th (2010) record this same proposition without question.
If the wording were incapable of contrary reading, an error in its interpretation in the Rules, however long perpetuated, would not reverse its correct construction.
But this wording is not clear.
Moreover, the successive assumptions in the Rules about its meaning are very relevant when one comes to consider Mr Knaflers second submission, and in particular the terms of section 76 of the 2002 Act, which is the section which persuaded the majority of the Court of Appeal that he was right.
Section 76 of the 2002 Act
Prior to this provision indefinite leave to remain could not be removed except by a deportation order and the operation of section 5(1) of the 1971 Act.
Section 76 gave the Secretary of State a new power to revoke a persons indefinite leave to remain, in three defined situations: (1) where a person is liable to deportation but cannot be deported for legal reasons, (2) where leave was obtained by deception such as would make the person liable to removal, but he cannot be removed for legal or practical reasons and (3) where he had, in specified circumstances, ceased to be the refugee which he previously had been.
Section 76(1) deals with the first situation: The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person (a) is liable to deportation, but (b) cannot be deported for legal reasons.
The argument which was accepted by the majority of the Court of Appeal was that this enactment, which is part of the same statutory body of immigration law as the 1971 Act, must have been passed on the assumption that it contained the only power by which such a persons leave to remain could be removed.
Mr George and others like him are people who are liable to deportation but cannot be deported for legal reasons.
That in turn meant, it was held, that the revocation of a deportation order in the case of such a person must have had the effect of reviving any leave to remain which he had.
Otherwise, so the argument ran, there would be no need for section 76(1).
It is certainly true that the two statutes are part of the same body of immigration law and should be construed consistently with one another so far as possible, although the speed and intensity of legislative change in this field undoubtedly leaves open the real possibility that not every provision is consistent with every other.
It is also clear, and conceded by the Secretary of State, that section 76(1) would apply to Mr George.
It does not, however, follow that there was no point in enacting section 76(1) unless revocation of a deportation order revived leave to remain.
In the case of Mr George the legal bar to his deportation was only upheld after the deportation order had been made.
But there will be many others who cannot be deported for similar legal reasons but in whose case this is apparent from the moment when they became liable to deportation.
There may be many convicted persons who would be deported but for obvious Convention rights bars, perhaps because the conditions in the home country would infringe article 3, or because the convict has very long standing and strong article 8 rights.
The legal bar to deportation may be recognised without dispute by the Secretary of State.
In such a case, section 76(1) adds the power, which otherwise did not exist, to revoke indefinite leave to remain.
The case for the existence of such a power is clear.
A human rights claim may well prevent actual deportation, but the individual concerned is, by definition, a person whose presence is no longer conducive to the public good.
If a deportation order cannot be made, it may make good sense to alter his status from indefinite leave to remain to limited or, more likely, conditional leave, which may give scope for control of his activities in the public interest.
Although the 2007 Act was not in existence when section 76 was enacted, its scheme for automatic deportation provides another example of a case when section 76 would be available without there being any deportation order to be revoked.
If the Secretary of State determines that section 32(5) of the 2007 Act applies to render an individual liable to deportation, it is not the making of a deportation order but the antecedent decision that the provisions of the Act apply which is appealable: see section 82(3A) of the 2002 Act, inserted by section 35(3) of the 2007 Act.
So, if challenge were made to that decision, and were upheld on human rights grounds, there would be no deportation order to be revoked, but the individuals indefinite leave to remain could be removed and replaced with a different kind of leave by acting under section 76.
A second powerful reason for rejecting the argument based upon section 76, perhaps not fully ventilated before the Court of Appeal, lies in the history set out at paragraph 12 above.
The whole basis of the decision of the Court of Appeal was that section 76 demonstrates that Parliament assumed that the effect of section 5 of the 1971 Act was to revive leave to remain if a deportation order was revoked.
But the history demonstrates that Parliament cannot have done so; on the contrary, the assumption at the time was the opposite.
A third reason was identified by Stanley Burnton LJ, dissenting in the Court of Appeal.
Quite apart from the case of the individual who remains in the United Kingdom and cannot be deported for legal reasons, he considered that there may be other situations in which revocation of a deportation order is appropriate.
One suggested case is where a person has been successfully deported and applies subsequently for limited leave to make a brief visit, perhaps to relatives, and perhaps in circumstances where it is appropriate to grant the application on compassionate grounds.
Such a person could not simply return, because the deportation order under which he was removed would prevent it.
The Secretary of State would need to revoke the deportation order and make a fresh grant of limited or conditional leave.
She could not use section 76 to do this, because such a person would not be someone who could not be deported for legal reasons.
Stanley Burnton LJ reasoned that Parliament could not have intended that in such a situation the revocation of the deportation order would have the effect of reviving an indefinite leave to remain.
This scenario gave rise to a complex debate as to whether there exist other powers by which the Secretary of State might achieve the same end, in particular by invoking article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) (the 2000 Order).
This Order first preserved leave which would otherwise have been treated under section 3(4) of the 1971 Act as lapsed by reason of travel outside the common travel area, and then created by article 13(7) a discretionary power to cancel it when it was only in force because thus preserved.
It is possible that this power might now be used in the scenario contemplated by Stanley Burnton LJ, although only if paragraph 321A of the Immigration Rules were first amended, for that rule presently restricts the use of article 13(7) to specific situations which do not include this scenario.
But what matters is what section 5(2) of the 1971 Act meant when it was enacted.
At that time the 2000 Order had not seen the light of day and there could be no question of applying article 13(7).
The law was, under section 3(4) of the same 1971 Act, that: A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply.
This provision cannot be read, in the context of the 1971 Act where it appears, as applying to a person deported under section 5.
If it did, there would be no need for section 5(1) to make any provision at all for the deportation order to invalidate the leave to remain.
Nor, even if the effect of section 5(2) is to revive a former leave to remain if a deportation order is revoked, could this section bite at removal under the order since the formerly existing leave would at that stage be invalidated by section 5(1) and there would be nothing to lapse.
It may be uncertain how much Stanley Burnton LJs scenario was in anyones mind at the time of the passing of the 1971 Act, so its impact on the construction question which arises in this case is perhaps limited.
But the possibility that the Secretary of State might wish to revoke a deportation order of someone, either present in the United Kingdom or not, and to replace it with limited or conditional leave, must have existed then as well as now, irrespective of any question of Convention rights obstructing removal.
This part of the reasoning of Stanley Burnton LJ therefore does provide some limited additional support for the argument that section 5(2) should not be read as meaning that on revocation of a deportation order any formerly held leave to remain revives.
In the Court of Appeal, Sir Stephen Sedley observed at para 32 that if section 76 was the only route available to the Secretary of State to remove leave to remain in the circumstances of a case such as the present, that would mean that the individual would have a right of appeal (under section 82 of the 2002 Act).
Whilst that is correct, it cannot assist on the meaning of section 5(2) as at 1971 since section 76 did not then exist.
Nor does the prospect of such a right of appeal fortify the case for such as Mr George.
Anyone faced with a deportation order already has ample right of appeal and against an order which will invalidate his leave to remain as the history of this case illustrates.
There is no occasion for a legitimate claim to a further appeal.
Sir Stephen also observed at para 32 that if the Secretary of State was right, a person such as Mr George would be left in limbo, being irremovable yet having no leave to remain.
That also does not assist.
The Secretary of State accepts that some leave must be granted if removal is impossible, and has in fact made such grants to Mr George.
In any event, there would equally be a limbo if the powers under section 76 were exercised.
For these reasons, the argument from section 76 does not avail Mr George.
Section 10 of the 1999 Act
Section 10 gives the Secretary of State power to direct summary removal of specific categories of people where, essentially, their leave to remain is seriously flawed.
The two principal categories are those who have failed to observe a condition of their leave (who accordingly are outside the leave granted) and those who obtained it by deception.
The other two categories are those whose position is as a dependent family member of someone being removed under this same section and those who have ceased to be refugees within the meaning of section 76(3) of the 2002 Act (supra at paragraph 13).
The effect of removal directions is, by section 10(8) (as substituted by section 48 of the Immigration, Asylum and Nationality Act 2006), to invalidate the leave to remain.
Thus the language employed mirrors that of section 5(1) of the 1971 Act.
Mr Knafler contends that in this section a withdrawal or revocation of the removal directions would clearly revive the leave to remain and that accordingly the same must apply to revocation of a deportation order under section 5 of the 1971 Act.
The precise meaning of section 10(8) is not before this court and it would be wrong to attempt to decide it in the absence of facts raising the issue.
Much might depend on the circumstances of any withdrawal and what if any alternative step the Secretary of State attempted or purported to take.
But it should not be assumed either that the effect of the section is that withdrawal of the removal directions would reinstate the leave to remain, unaltered, or that, if it would, the same was the rule created 28 years earlier by section 5 of the 1971 Act for the different situation of a deportation order made because the presence of the individual is not conducive to the public good.
The appeal rights of those affected by section 10 summary removal directions and those facing deportation are quite different.
In any event, it is unsafe to reason from a different regime enacted 28 years afterwards to the meaning of the 1971 Act.
Automatic deportation under the 2007 Act
Mr Knafler suggests that unless section 5(2) of the 1971 Act involves revival if the deportation order is revoked, a person who successfully appeals automatic deportation will still have his leave to remain invalidated; hence, he submits, section 5(2) must involve revival.
The argument runs as follows. (A) In a non automatic case an appeal against a decision (under section 3(5) of the 1971 Act) that a persons deportation is conducive to the public good, and thus that a deportation order will follow, is appealable under section 82(2)(j) of the 2002 Act and whilst the appeal is pending no deportation order can be made: see section 79(1) of that Act; (B) when the 2007 Act scheme was introduced the decision which was made appealable is not the making of the deportation order but the antecedent decision that the individual is caught by the automatic deportation rules: section 82(3A) of the 2002 Act, as introduced by section 35 of the 2007 Act; (C) at the same time section 79 of the 2002 Act was modified by the introduction of subsections (3) and (4) which provide that the usual prohibition on making a deportation order whilst an appeal is pending does not apply but that during that time there is an exception to the rule under section 5(1) of the 1971 Act that it invalidates the leave to remain; (D) therefore it is possible that the individual could succeed in his appeal, establish that he is not caught by the automatic deportation rules, but yet there may be a deportation order which will have the effect, once the appeal is over and no longer pending, of invalidating his leave to remain.
This may or may not be a possible scenario.
The import of the 2007 Act needs to be resolved on facts arising from it and not hypothetically on a case to which it has no application.
That the legislation is not as a whole entirely cohesive is demonstrated by the fact that in a non automatic case, the appeal may be against either the decision to make a deportation order or against a refusal to revoke the order itself if matters have advanced that far; the appealable decisions are described in section 82(2)(j) and (k).
If the postulated automatic deportation case is a possible scenario, it would not of course apply except where (a) a deportation order was made, as it need not be, and (b) the effect of a successful appeal is to induce its revocation.
There are, in any event, very limited grounds on which an appeal against automatic deportation of a foreign criminal can be mounted.
The principal ones in practice may well be that Convention rights prevent deportation (exception 1 pursuant to section 33(2) of the 2007 Act).
It is not necessarily anomalous or wrong that a foreign criminal who would be deported but for a Convention bar should have his indefinite leave to remain invalidated and that the Secretary of State should be able to regulate his status in this country by means of limited or conditional leave (see below).
It is not possible to reason from a single suggested scenario under an Act of 2007 to the true meaning of a statute passed 36 years earlier.
Conclusion
The terms of section 5 of the 1971 Act are, as words, capable either of importing revival of leave or of not doing so.
Revival is not their natural meaning, because the natural meaning is that revocation takes effect when it happens and does not undo events occurring during the lifetime of the deportation order.
Revival is a significant and far reaching legal concept, and it is much more likely that it would have been specifically provided for if it had been intended.
The reasoning of the Court of Appeal, from section 76 of the 2002 Act, cannot be supported.
Whilst statutes in pari materia should be construed consistently if possible, a later statute is not a reliable guide to the meaning of an earlier one, especially in a field such as immigration where social and political pressures have led to fast moving changes in the legislation.
In particular, the history of the treatment of section 5(2) of the 1971 Act in successive rules laid before Parliament both before and ever since the 1971 Act was passed shows very plainly that there cannot have been a legislative assumption that revival was its effect.
The contrary construction, involving no question of revival, is entirely consistent with the scheme of the 1971 Act (and indeed subsequent statutes) on the topic of deportation.
The position of Mr George is not analogous to someone with a pending appeal.
His status as a person liable to deportation has long since been established; his appeal challenging it failed long ago.
Persons are liable to be deported, under any of the procedures which may apply, because their presence in the United Kingdom is judged not to be conducive to the public good.
That is true of Mr George.
If it turns out that there is a legal obstacle to actual removal, for example because of Convention rights which cannot be infringed, that does not alter the fact he is a person whose presence is not conducive to the public good.
There is no legal symmetry in indefinite leave to remain co existing with the status of someone whose presence is not conducive to the public good.
It makes perfectly good sense, whilst the legal obstacle remains, for the Secretary of State to be in a position to re visit the terms of leave to enter.
Moreover, the legal obstacle is not necessarily, or even usually, permanent.
If it arises from conditions in the individuals home country, those conditions may change or he may come into favour with the authorities when previously he was not.
If it arises from his family connections in the United Kingdom, those may easily change.
If someone in his position cannot at present be deported because to do so would infringe his article 8 rights, and if indefinite leave to remain were thereupon to revive, he would remain irremovable if he turned his back on his family, or they on him, as may not infrequently occur.
Whilst there may be different routes by which the Secretary of State could now achieve a similar result, for example via section 76 of the 2002 Act, it is clear that this was also the coherent result of the 1971 Act, from the time that it was enacted.
On its correct construction, section 5(2) of the 1971 Act does not mean that if the deportation order is revoked, the invalidation by section 5(1) of leave to remain is retrospectively undone and the previous leave to remain does not revive.
Mr George remains liable to deportation, even though it cannot at present be carried out.
His position in the United Kingdom must be regularised, but that does not entail a recognition of indefinite leave to remain.
The Secretary of States grant to him of successive limited leaves is perfectly proper.
Whether or not it may become appropriate after the passage of time to re grant indefinite leave is a matter for her.
For those reasons, the appeal of the Secretary of State should be allowed and the order of the judge dismissing the claim for judicial review should be reinstated.

Output:
Mr George was born in Grenada in 1984 and came to the UK in 1995 at the age of 11.
In March 2000 he was granted indefinite leave to remain (ILR) in the UK.
He has a partner whom he has known since school, with whom he has a daughter born in 2005.
He and his partner do not live together: his daughter however sees him reasonably often and sometimes stays with him.
Since 2000, Mr George has been convicted of seven different offences, including supply of cocaine and possession with intent to supply heroin and cocaine.
The Secretary of State decided that Mr Georges deportation would be conducive to the public good.
From that point he was, by section 3(5) Immigration Act 1971 (the 1971 Act), liable to deportation.
Notice was served upon him, in January 2007, that a deportation order was to be made against him.
He unsuccessfully challenged that decision and, on 24 April 2008, a deportation order was made in respect of him.
The effect of that deportation order, by section 5(1) of the 1971 Act, was to invalidate his ILR.
Mr George made a further application to the Secretary of State arguing that his deportation to Grenada would be unlawful under section 6 Human Rights Act 1998 as it would breach his right to private and family life under Article 8 ECHR.
The Secretary of State rejected that application, but an immigration judge allowed his appeal on 31 March 2009.
The effect of that judgment was to revoke his deportation order.
The question in this case is Mr Georges immigration status following the making and revocation of the deportation order.
Did Mr Georges ILR, invalidated by the deportation order, revive when the deportation order was itself revoked? Mr Georges solicitors considered that it did, and called on the Secretary of State to confirm this.
The Secretary of State however considered that it did not, and instead granted six months discretionary leave to remain (DLR) on 2 August 2013.
On the expiry of that leave the Secretary of State granted a further three years DLR.
Mr George judicially reviewed the decision not to reinstate ILR.
He argued that on the true interpretation of section 5(1) (2) Immigration Act 1971, his ILR was reinstated by the revocation of the deportation order.
Subsection (1) provides that a deportation order shall invalidate any leave to remain given [to a person] before the order is made or while it is in force.
Subsection (2) provides that a deportation order may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.
He further argued that an interpretation of section 5 by which his ILR was revived was supported by the fact that other immigration statutes, particularly section 76 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), required that reading of the 1971 Act.
Mr Georges claim was dismissed in the High Court, but his appeal to the Court of Appeal was allowed.
The Secretary of State appealed to the Supreme Court.
The Supreme Court unanimously allows the appeal.
Lord Hughes gives the only reasoned judgment, with which the other members of the court agree.
The better reading of section 5 of the 1971 Act is that it does
not revive prior leave on a deportation orders revocation.
The other statutory provisions relied upon by Mr George do not support his case.
Mr Georges first argument is that on its natural meaning, (i) revocation of a deportation order under section 5(2) of the 1971 Act must reverse all the consequences of the order listed in section 5(1), including therefore the invalidation of the leave to remain, and (ii) that the words shall cease to have effect in section 5(2) govern both the citizenship and revocation possibilities in that subsection.
However, neither point is compelling.
The wording of the subsections does not provide a conclusive answer to the question in the appeal [10 11].
Importantly, the 1971 Act has consistently been treated as meaning that revocation does not revive prior leave to remain.
Draft Immigration Rules which made this clear were prepared (and considered by Parliament) alongside the 1971 Act, and every subsequent version of the Immigration Rules has contained the same statement.
Each version has been laid before Parliament.
Likewise, successive editions of practitioner textbooks have taken the same position [12].
Revival of prior leave to remain is not the natural meaning of section 5 of the 1971 Act.
It is a significant and far reaching legal concept, and it is likely that if intended, it would have been explicitly provided [29].
The treatment of section 5(2) of the 1971 Act in successive Rules laid before Parliament clearly demonstrates that there was no legislative assumption that the effect of revocation of a deportation order was revival of prior leave to remain [30].
Mr Georges second argument was that other immigration statutes, particularly section 76 of the 2002 Act, indicate that the proper interpretation of the 1971 Act is that revocation of a deportation order revives leave to remain. section 76 provides a power for the Secretary of State to revoke ILR if a person is liable to deportation but cannot be deported for legal reasons.
Mr George argued that this power would be superfluous if the making of a deportation order irrevocably cancelled ILR [13 14].
However, this is incorrect.
While the legal impediment to Mr Georges deportation arose only after his deportation order was made, in other cases the legal impediment would be apparent prior to this point, and so the order would never be made. section 76 provides a power for the Secretary of State to revoke ILR and instead provide for limited or conditional leave.
In any event the only import of this argument goes to Parliaments intention when it passed the 1971 Act: the legislative history set out at [12] demonstrates that Parliament intended a deportation order irrevocably to extinguish prior leave to remain [16 18].
A number of arguments based on other statutes and situations were raised.
Where an individual previously possessing ILR had been deported, that individual might need to return to the UK for a brief period.
The Secretary of State would need to revoke the deportation order and make a fresh grant of conditional leave.
It could not be right that in such a situation the previous ILR would revive, and this provided some limited support for the Secretary of States position.
The Immigration (Leave to Enter and Remain) Order 2000 did not alter this conclusion, since the issue is the construction of the 1971 Act, and the problem existed prior to 2000 [19 21].
Mr George had based an argument on an analogy with section 10 of the Immigration and Asylum Act 1999.
However, that issue was not squarely before the court, and it would be wrong to determine its interpretation in the abstract [25 26].
The same was true of the UK Borders Act 2007 [27 28].
More fundamentally, it is wrong to reason from suggested scenarios under later Acts to the meaning of an earlier Act.
Later statutes are not reliable guides to the meaning of earlier ones, particular in areas where there have been fast moving changes to the legislation [30].


Input:
On 9 September 2004 the appellant, Steven Allison, was convicted after trial in the High Court at Glasgow of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971.
In effect, he was found guilty of being concerned in the supplying of cocaine and three other controlled drugs at his home in Cumbernauld, at an address in Falkirk and elsewhere in the United Kingdom, between 12 November and 3 December 2003.
The trial judge, Lord Bracadale, sentenced him to 8 years imprisonment.
The appellant appealed against both his conviction and sentence.
On 7 November 2008 the appeal court (Lord Osborne, Lady Paton and Lord Philip) refused his appeal against conviction, leaving his appeal against sentence to be heard on a date to be fixed.
Among his grounds of appeal against conviction was one which was first advanced in an additional Note of Appeal.
It relates to the record of a police interview of a John Stronach.
Mr Stronach had died before the trial and the Crown introduced the interview into evidence in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995.
Neither before nor during the trial did the Crown disclose to the defence that Mr Stronach had a number of previous convictions and outstanding charges.
In particular, he had convictions for reset, theft by opening lockfast places, assault and robbery and assault and breach of the peace.
He also had a number of outstanding charges, including two alleged contraventions of the Misuse of Drugs Act 1971, an alleged theft by housebreaking and several alleged contraventions of the Road Traffic Act 1988.
One of the outstanding cases under the Misuse of Drugs Act related to events covered by the trial and was known to the appellants legal advisers.
The Crown disclosed the previous convictions and the other outstanding charges only while the appellants appeal was pending before the appeal court.
This prompted the appellant to lodge his additional ground of appeal: The failure on the part of the Crown to disclose to the defence the existence of all the previous convictions and outstanding charges resulted in the defence being unable to prepare and properly conduct their defence and the result was that the appellant did not receive a fair trial, as guaranteed by article 6(1) of the European Convention on Human Rights.
Following the dismissal of his appeal by the appeal court, the appellant applied for leave to appeal to the Privy Council in relation to the additional ground of appeal.
On 6 March 2009 the appeal court (Lord Osborne, Lady Paton and Lord Mackay of Drumadoon) refused the application as incompetent, on the ground that no intimation of a devolution issue had been given to the Advocate General as required by para 5 of Schedule 6 to the Scotland Act 1998.
The court went on to indicate that, if it had been open to them to grant or refuse leave, they would not have granted leave.
The appellant subsequently applied to the Privy Council for special leave to appeal.
The Board granted special leave.
Although the statement of facts and issues included an issue relating to the competency of the appeal courts decision to refuse leave, neither the advocate depute nor the Advocate General advanced any argument on the point at the hearing of the appeal.
Undoubtedly, when the appeal court determined that the Lord Advocate was not under an obligation by virtue of article 6(1) of the European Convention to disclose the outstanding charges against Mr Stronach, they were in substance determining a devolution issue in terms of para 1(d) or (e) of Part I of Schedule 6 to the Scotland Act 1998 irrespective of whether all the relevant procedural steps had been followed.
It follows, as was held in McDonald v HM Advocate 2008 SLT 993, 1002, paras 48 and 49, that an appeal on that point lies to this Court under para 13(a) of Part II of that Schedule.
Of course, the late Mr Stronachs name was never included in the list of Crown witnesses appended to the indictment for the appellants trial which may help to explain why the need to disclose his criminal antecedents was overlooked.
But, when dismissing the appellants appeal, the appeal court rightly accepted, under reference to Holland v HM Advocate 2005 1 SC (PC) 3, 24, para 72, that the failure by the Crown to disclose Mr Stronachs previous convictions had been incompatible with the appellants article 6(1) Convention rights.
Despite the further conclusion of the Privy Council in Holland, at pp 24 25, paras 73 74, that the Crown were also under an obligation to disclose material outstanding charges of which they were aware, the appeal court in the present case drew a distinction between Mr Stronachs previous convictions and his outstanding cases at the time of the trial by which the court obviously meant the charges against him which had been outstanding at the time of his death.
The court continued: We consider that, in this context, a distinction has to be made between previous convictions and outstanding cases.
While, in appropriate circumstances, the existence of previous convictions may be of importance in connection with the preparation of a defence and to the challenge that may be mounted to the credibility of a witness, we do not consider that the same may be said of outstanding cases.
Where an individual is charged with crime, he or she is presumed to be innocent until proved guilty.
If a case is outstanding, necessarily no verdict has been reached in it.
In these circumstances we have insuperable difficulty in understanding how information relating to those matters could be properly deployed in the conduct of a defence.
Previous generations of Scots lawyers and judges do not appear to have
experienced the same insuperable difficulty as the appeal court.
It is, of course, trite that an individual charged with crime is presumed to be innocent until proved guilty.
But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge had been brought.
Most obviously, in an appropriate case, he can be remanded in custody pending trial or granted bail subject to appropriate conditions.
Similarly, depending on the offence and the terms of his contract of employment, he may be suspended from his employment.
More generally, if you know that someone has been charged with, say, fraud, you will be less inclined to enter into a commercial transaction with him; if you know that someone has been charged with sexual abuse, you will think twice before entrusting your children to her care; if you know that someone has been charged with theft, you will be less inclined to trust anything which he tells you, unless it can be confirmed from other sources.
The Privy Councils decision in Holland, that the Crown should disclose outstanding charges of Crown witnesses of which they were aware, simply reflected the common sense position that just as in everyday life judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others.
To judge from the passage quoted in para 7 above, the appeal court seem to have thought that this was an unprincipled and incoherent innovation.
It is noteworthy that they did not refer to any authority.
In reality, the approach of the Privy Council, in so far as it proceeds on the basis that outstanding charges may have a bearing on a witnesss credibility, merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years.
At one time, in Scots law anyone convicted of serious crimes became technically infamous (infamis) and was thereafter unable to give evidence at any trial.
By the early nineteenth century this rule was proving self defeating for the authorities: all too often it was a gift to the defence since it prevented the only material witnesses to crimes from giving evidence.
So the rule was first relaxed and then eventually abolished.
The only explicit authority relating to a witness with outstanding charges comes from that era.
At a High Court trial at Dumfries, when leading a Crown witness, William Higgins, the advocate depute began by establishing that he was due to be tried at the same circuit on a charge of theft by housebreaking, aggravated by his having been previously convicted of theft and being a thief by habit and repute.
See John Hannah and Hugh Higgins, 17 September 1836, Bells Notes, p 256, in the Supplement to Humes Commentaries on the Law of Scotland respecting Crimes (1844 edition), vol 2.
Since the court ruled on the admissibility of the advocate deputes line of questioning, the defence must have objected that the Crown were, in effect, leading a witness who, if convicted of the crime in question at his trial later in the sitting, would then be unable to testify.
The court rejected the argument and allowed the question.
As the author of the Notes, Sheriff Bell, comments, The court, however, in allowing the question, must have thought it relevant to affect the credit of the witness.
The potential relevance of outstanding charges to the credibility of a witness appears to have been settled in the nineteenth century.
See, for instance, Dicksons Treatise on the Law of Evidence in Scotland (revised edition, 1887) vol 2, para 1619.
Most significantly, Macdonalds Criminal Law of Scotland (3rd edition, 1894), p 462, says: Nor may [a witness] refuse to say whether he has been convicted of or stands indicted for a crime.
This passage appears in virtually the same words in the fifth and final edition (1948), pp 297 298.
The passage could never have stood unchallenged in successive editions of the traditional vademecum of Scottish criminal practitioners and judges if it had not reflected practice in the courts.
Not surprisingly, therefore, neither the advocate depute nor the Advocate General supported the approach of the appeal court in the present case.
In Holland v HM Advocate 2005 1 SC (PC) 3 the appellant was convicted of a charge of assault and robbery at a house in Rutherglen.
The Crown failed to disclose that there were outstanding charges against the complainers, relating to drug dealing at the house in question.
The Privy Council held, at p 25, para 75, that information about these charges would have helped to complete the picture both of the complainers and of their milieu.
In other words, it would have had the potential to weaken the Crown case and so it should have been disclosed.
In his written submissions in the present appeal, the advocate depute gave examples of other situations where an outstanding charge against a Crown witness might materially weaken the Crown case or strengthen the defence case: if the witness denied he had ever been in trouble with the police, an outstanding charge could legitimately be put to him; similarly an outstanding charge might provide a potential motive for the witness giving untrue information in an attempt to curry favour with the authorities.
It is unnecessary to prolong the discussion since the Crown did not deny that the outstanding charges against Mr Stronach might have weakened the Crown case by casting doubt on his character or credibility.
It follows that, in accordance with Holland v HM Advocate 2005 1 SC (PC) 3 and HM Advocate v Murtagh 2009 SLT 1060, the failure of the Crown to disclose the outstanding charges to the defence was indeed incompatible with the appellants article 6(1) Convention rights.
At the hearing of the appeal, all this really went without saying and the only live issue was the actual significance, in the whole circumstances of the case, of the Crowns failure to disclose the charges.
The appeal court did not consider that matter, but they did, of course, consider the effect of the Crowns failure to disclose his previous convictions.
Having considered the circumstances, the appeal court were not persuaded that the failure of the Crown to disclose the previous convictions of Stronach to the appellants advisers resulted in an unfair trial and hence a miscarriage of justice.
They accordingly rejected the appellants appeal, so far as based on the Crowns failure to disclose Mr Stronachs previous convictions.
Standing that decision, at the hearing before this Court, Mr Jackson QC, who appeared for the appellant, had to argue that the failure to disclose Mr Stronachs outstanding charges made a significant difference.
In other words, the Court should conclude that there would have been a real possibility of a different outcome if the jury had been made aware, not only of Mr Stronachs previous convictions, but of the outstanding charges against him: in that event, the jury might reasonably have come to a different view as to whether the appellant was concerned in the supplying of the various drugs during the relevant period.
The case against the appellant was circumstantial.
It comprised, for the most part, evidence of observations by police officers who had conducted a surveillance operation over several weeks.
The evidence relating to Mr Stronachs statement concerned events of 24 November 2003.
DS Duncan Smith was not otherwise involved in the relevant events.
He gave evidence that, at about 12.45 pm on 24 November, when checking an address, he saw a blue Peugeot, registration number M810 UEW, parked at the appellants home at 58 Whitelees Road, Cumbernauld.
At 9.32 pm Mr Stronach was seen driving the Peugeot to a service station at Kilmarnock where he met up with a Ford Orion.
The two cars drove in convoy to Logan, near Cumnock.
There, in the car park of the Logangate Arms, the driver of the Orion spoke to Mr Stronach who did not leave his car.
Mr Stronach then drove up to Glasgow and on to the M8 where he was stopped by two police officers.
A Farm Foods bag, found in the glove compartment of the Peugeot, contained cocaine worth at least 30,000.
The police interviewed Mr Stronach on tape in the early hours of 25 November.
This is the interview which is the subject of the additional ground of appeal.
The tape recording of the entire interview was played to the jury during the evidence of DC McFadden.
In the course of the interview Mr Stronach said that he had been sent by a man called Stevie from Abronhill to sell the car.
The appellants first name is Steven and his home was in the Abronhill district of Cumbernauld.
The description of Stevie given by Mr Stronach fitted the appellant.
On 27 November the appellant left his home and drove to the house of Mr Stronachs girlfriend in Denny.
He then took Mr Stronachs passport to Airdrie Sheriff Court where it was used in connexion with his application for bail.
A receipt for the passport from the court dated 27 November was recovered from the appellants home.
Defence counsel took DC McFadden through the transcript of the interview in detail and was able to show that Mr Stronach had told many lies.
When he came to address the jury, the advocate depute accepted that he had clearly lied about his movements and about his involvement in drugs.
But the advocate depute suggested to the jury that it would be easier to accept those parts of the interview which were supported by other acceptable evidence.
In particular, he pointed to the evidence of DS Smith, who was not otherwise involved in the investigation, that the Peugeot which Mr Stronach was driving when stopped by the police had been parked outside the appellants house earlier the same day.
The advocate depute also referred to the evidence about the appellant collecting Mr Stronachs passport from his girlfriends house and taking it to Airdrie Sheriff Court in connexion with his application for bail on the drugs charges arising out of the recovery of the cocaine from the Peugeot.
The advocate depute argued that it would be a spectacular coincidence if this did not indicate that the appellant knew of Mr Stronachs involvement with drugs.
summarised the position in this way: In his supplementary report to the appeal court, Lord Bracadale, Taking into account the analysis of the interview of Mr Stronach carried out by [defence counsel] and the concessions made as to his credibility by the advocate depute, the jury would have been most likely to conclude that Mr Stronach did indeed tell many lies in the course of the interview.
They would, however, have been entitled to be selective in their view of the evidence of Mr Stronach.
Lord Bracadale then referred to Mr Stronachs previous convictions and added: In the circumstances outlined above it is difficult to see how the canvassing of the previous convictions of Mr Stronach before the jury would have bolstered the already largely successful attack on his credibility.
It is also difficult to see why knowledge of the previous convictions would have discouraged the jury from being selective in the approach to the contents of the interview of Mr Stronach.
Against that background, the appeal court were not persuaded that the failure of the Crown to disclose Mr Stronachs previous convictions resulted in an unfair trial and hence a miscarriage of justice.
For exactly the same reasons, I am not persuaded that, if defence counsel had been able to deploy Mr Stronachs outstanding charges as well as his previous convictions, this would have made any material difference.
More especially, it would not have affected the fact that the jury, who must have been well aware of the defects in Mr Stronachs statements, could still, with equal plausibility, have accepted those elements, and only those elements, in Mr Stronachs account which were corroborated by other acceptable evidence.
I am accordingly satisfied that there is no real possibility that the jury would have come to a different verdict on the four charges against the appellant if they had been made aware, not only of Mr Stronachs previous convictions, but of the outstanding charges against him as well.
There has therefore been no miscarriage of justice.
I would accordingly dismiss Mr Allisons appeal and remit the case to the appeal court to proceed as accords.
LORD HOPE
make the same order as he proposes.
The point of principle which this case raises is whether a failure to disclose outstanding charges against a Crown witness is incompatible with the accuseds article 6(1) Convention rights.
Had it not been for the passage in the opinion of the appeal court which Lord Rodger has quoted in para 7 of his judgment, I would not have thought that there was now any room for dispute on the point.
In McDonald v HM Advocate [2008] UKPC 46. 2008 SLT 993, para 51 Lord Rodger said that the decisions of the Board in Holland v HM Advocate [2005] UKPC D 1, 2005 SC (PC) 3 and Sinclair v HM Advocate [2005] UKPC D 2, 2005 SC (PC) 28 had answered this question.
Included within the general description of disclosable material are two classes of material, namely police statements of any witnesses on the Crown list and the previous convictions and outstanding charges relating to those witnesses.
I agree with Lord Rodger that the appeal must be dismissed, and I would
The rule of law on which that classification is based is that of fairness.
In McLeod v HM Advocate (No 2) 1998 JC 67, Lord Justice General Rodger said that our system of criminal procedure proceeds on the basis that the Crown have a duty at any time to disclose to the defence information which would tend to exculpate the accused.
In Sinclair v HM Advocate, para 33 I said that the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused, and that for this purpose any evidence which would tend to undermine the prosecution case or to assist the case for the defence is to be taken as material.
Sometimes the proposition is worded differently.
In HM Advocate v McDonald [2008] UKPC 46, 2008 SLT 993, para 50 Lord Rodger said: Put shortly, the Crown must disclose any statement of other material of which it is aware and which either materially weakens the Crown case or materially strengthens the defence case (disclosable material) Lord Bingham of Cornhill used the same formula when describing the golden rule in R v H and others [2004] UKHL 3, [2004] 2 AC 134, para 14 when he said: Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.
In HM Advocate v Murtagh [2009] UKPC 36, 2009 SLT 1060, para 11, I said, under reference to McLeod, Holland, Sinclair and McDonald, that it was well settled that the Crown must disclose any statements or other material of which it is aware which either materially weakens the Crown case or materially strengthens the case for the defence: see also Lord Rodger, para 48.
These formulations should however be regarded as expressing what has been described as the golden rule in shorthand.
After all, they are describing a decision about disclosure which must normally be taken before the trial.
It is a decision which will be based on an assumption as to what may happen in the future.
So the question the Crown must ask itself is what the possible effect would be likely to be if the material were to be disclosed.
As I said in R v Brown (Winston) [1998] AC 367, 374, it would be contrary to the principle of fairness for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence.
Lord Collins, referring to what I said in that case, also used the word might" in Murtagh, para 75.
That is the way Lord Rodger has expressed the position that the Crown has adopted in this case in para 14, above, and I respectfully agree with it.
As for the point that troubled the appeal court, it is true that a distinction can be drawn between previous convictions and outstanding charges.
But that does not mean that it can be assumed that information about outstanding charges of Crown witnesses can never affect their credibility.
It is enough, for the disclosure rule to apply to them as a class, that they might do so.
Of course the person concerned is presumed to be innocent until proved guilty.
But if he is asked the question whether he has ever been in trouble with the police, he must answer it.
A false or evasive answer might well be thought by a jury to undermine his credibility.
Other circumstances may be envisaged where the fact that charges have been brought against the witness may have that effect.
The application of the rule to outstanding charges, as the Crown accepts, is really just based on common sense and every day experience.
No one should now be in any doubt that the disclosure rule applies to them, or as to the reasons why this is so.
LORD WALKER
that he gives I would dismiss this appeal.
I am in full agreement with the judgment of Lord Rodger.
For the reasons I agree with the judgment of Lord Rodger and, for the reasons that he gives, I agree with the judgment of Lord Rodger and, for the reasons that he gives,
LORD BROWN
I too would dismiss this appeal.
LORD KERR
I too would dismiss this appeal.

Output:
On 9 September 2004 the appellant, Steve Allison, was convicted after trial in the High Court at Glasgow of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971.
In effect, he was found guilty of being concerned in the supplying of cocaine and three other controlled drugs.
The trial judge sentenced him to 8 years imprisonment.
The appellant appealed against both his conviction and sentence.
On 7 November 2008 the appeal court (Lord Osborne, Lady Paton and Lord Philip) refused his appeal against conviction, leaving his appeal against sentence to be heard on a date to be fixed.
One of his grounds of appeal, which was first advanced in an additional Note of Appeal, related to the record of a police interview of a John Stronach.
Mr Stronach had died before the trial and the Crown introduced the interview into evidence in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995.
Neither before nor during the trial did the Crown disclose to the defence that Mr Stronach had a number of previous convictions and that there were outstanding charges against him.
One of the outstanding cases was under the Misuse of Drugs Act and related to events covered by the trial and it was therefore known to the appellants legal advisers.
The Crown disclosed the previous convictions and the other outstanding charges only while the appellants appeal was pending before the appeal court.
This prompted the appellant to argue that the Crowns failure to disclose to the defence the existence of all the previous convictions and outstanding charges was incompatible with his article 6 Convention rights.
As a result, the defence had been unable to prepare and conduct their defence properly and appellant did not receive a fair trial.
When dismissing the appellants appeal, the appeal court accepted that the failure by the Crown to disclose Mr Stronachs previous convictions had been incompatible with the appellants article 6(1) rights.
Having considered the circumstances of the case, however, the appeal court was not persuaded that the Crowns failure had resulted in an unfair trial and hence a miscarriage of justice.
The appeal court drew a distinction between Mr Stronachs previous convictions and the outstanding charges against him.
Because of the presumption of innocence, the appeal court did not consider that the existence of outstanding charges could be of importance in connection with the preparation of a defence or with any challenge that might be mounted to the credibility of a witness.
The Supreme Court unanimously dismisses the appeal, with Lord Rodger delivering the leading judgment of the Court.
The Court disagrees with the appeal courts view in relation to outstanding charges.
It is, of course, trite that an individual charged with crime is presumed to be innocent until proven guilty.
But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge has been brought (para 9).
The Privy Councils decision in Holland v HM Advocate 2005 1 SC (PC) 3, that the Crown should disclose outstanding charges of Crown witnesses of which they are aware, simply reflects the common sense position that just as in everyday life judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others.
This approach merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years (para 10).
In the present case, the Crown does not deny that the outstanding charges against Mr Stronach might have weakened the Crown case by casting doubt on his character or credibility.
Indeed the Crown accepts that, in accordance with Holland and HM Advocate v Murtagh 2009 SLT 1060, the failure to disclose the outstanding charges to the defence was incompatible with the appellants article 6(1) rights (para 14).
The only live issue in the appeal, therefore, is the actual significance, in the whole circumstances of the case, of the Crowns failure to disclose the outstanding charges.
Having considered the circumstances of the case against the appellant, the Court is not persuaded that, if defence counsel had been able to deploy Mr Stronachs outstanding charges as well as his previous convictions, this would have made any material difference (para 22).
The Court is satisfied that there is no real possibility that the jury would have come to a different verdict on the charges against the appellant if they had been made aware, not only of Mr Stonachs previous convictions, but of the outstanding charges against him as well.
There has therefore been no miscarriage of justice (para 23).