 Reaffirming that the High Court remained the final court of appeal in criminal matters in Scotland and that the Supreme Court had no jurisdiction to review the merits of its decisions made in exercise of that function, he ruled that the Appeal Court had applied the wrong test in law in relation to article 6(1), namely, whether they believed that there had been a miscarriage of justice rather than whether there was 'a real possibility that the jury at this trial would have arrived at a different verdict' which created a miscarriage of justice, based on the precedent of "McInnes v Her Majesty's Advocate".He concluded that a real possibility existed, and accordingly allowed the appeal, and remitted the matter to the Appeal Court with a direction to quash Fraser's conviction, once it had decided whether he should be re-tried, in exercise of the court's powers under paragraph 13 of Schedule 6 to the Scotland Act 1998.Lord Brown of Eaton-under-Heywood agreed that the Appeal Court had applied the wrong test in law and would have allowed the appeal but was inclined to have remitted the whole case to the Appeal Court, absent a direction to quash.