Former Celtic Boys Club manager Frank Cairney has been cleared of a sex attack on a teenage boy after a failure to reveal the victim’s previous convictions.
Cairney, 84, was given a four-year jail sentence after he was convicted of nine charges of abusing young footballers.
But earlier this month, Cairney’s lawyers went to the Court of Criminal Appeal in Edinburgh to challenge the conviction, which has has now been overturned, reducing his sentence by a year.
They argued that prosecutors didn’t do enough to disclose the fact that one of the man allegedly abused by Cairney had previous convictions for dishonesty in England.
Solicitor advocate Simon Collins said that knowledge of the man’s previous offending could have assisted the defence case.
But because defence lawyers didn’t know the man’s previous convictions, they were unable to cross-examine him to ascertain whether his evidence against Cairney was reliable.
Prosecutors in Scotland said they couldn’t provide data on the man’s English convictions because they didn’t have automatic access to the Police National Computer. They said that they could only access the PNC by gaining permission from the police.
In a judgement issued on Wednesday, appeal judges Lord Carloway, Lord Drummond Young and Lord Turnbull, agreed with the submissions made by Cairney’s lawyers.
They quashed the conviction against the man which subsequently reduced Cairney’s sentence by a year.
In the judgement, Lord Carloway, Scotland’s most senior judge, wrote that more needed to be done in order for defence lawyers to know more about a witness’s criminal past.
He wrote: “The notion that the Crown has to be in physical possession of the relevant information before it requires to be disclosed must be regarded as outmoded.
“The duty must if equality of arms, is to be preserved, extend to information, which is readily searchable on a database to which the Crown have, or could readily have access to and the defence have not.
“In this case, obtaining access to a complainer’s UK wide criminal record by interrogating the Police National Computer must fall into their category.
“The court considers that the failure to disclose the convictions, which the Crown could have accessed quite easily, has resulted in a miscarriage of justice.
“It will accordingly quash the conviction on charge eight.”
The appeal judges issues their opinion after taking time to consider their decision.
They said the principle involved in Cairney’s legal challenge had the potential to have wider implications. At proceedings earlier this month, Mr Collins said that failure to disclose previous convictions of one of Cairney’s accusers from England had led to a miscarriage of justice.
Advocate depute Alex Prentice QC told the judges that prosecutors don’t usually check for convictions which have emerged as a consequence of non-Scottish proceedings.
He said: “The Crown does not routinely seek to acquire information from other jurisdictions unless there is some reason to consider there might be such information,” he said.
“I accept, in this case, the fact of residency in another jurisdiction would be, at least, an indicator that a check ought to be made.”
Mr Prentice added: “This is a practise that has evolved and needs to be re-examined.”
The victim of the single charge under appeal was allegedly abused by Cairney in 1974 when he was aged 15.
Following Cairney’s trial at Hamilton Sheriff Court it was discovered that the victim had acquired previous convictions in England, including obtaining property by deception.
Mr Collins said: “The Crown were asked specifically about previous convictions. They were aware the complainer resided in England.”
He argued that it was information that could have been found by accessing systems available to it “without significant inquiry”.
Mr Collins maintained that there was a duty on the Crown to obtain the information and disclose it to the defence.
He said it turned out that there were previous convictions for obtaining property by deception where the particular complainer was to be challenged by the defence on his credibility and the jury invited not to believe him at all.
Mr Collins said the man was the most forcefully challenged of the witnesses who testified against Cairney, of Viewpark, in Lanarkshire during the trial before Sheriff Daniel Kelly QC which led to him being jailed in February.
He said: “It was put to him he never played a single game for Celtic Boys Club.”
Mr Collins said that on charges featuring the other victims the jury returned unanimous guilty verdicts, but with this complainer it was a majority verdict.
He argued that there would be “a real possibility” that the jury in considering the credibility of the complainer, if the previous convictions had been disclosed, would have returned a different verdict.
In the judgement, Lord Carloway said that more should have been done to disclose the English convictions.
He added: “It is surprising that in a prosecution of the nature under consideration, the police themselves did not forward a note of the complainer’s criminal records when reporting the case to the procurator fiscal.
“It is equally surprising that the prosecutor fiscal did not forward this information when seeking Crown Counsel’s instructions on whether to prosecute and on what charges.”