Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
Current Law8.1.5 A person convicted on indictment 9 or summary complaint 10 may be permittedto appeal against conviction and/or sentence on the ground that a miscarriageof justice has occurred. A miscarriage of justice in relation to a convictionmay occur in a number of ways, notably where there has been insufficientevidence or a misdirection of the jury. It can also occur because of thediscovery of “fresh” evidence. A miscarriage of justice in a sentence appealusually involves a first instance disposal which can be classified asincompetent, inappropriate or excessive 11 . The High Court is empowered tointerfere with a sentence simply if it considers that, having regard to all thecircumstances, a different sentence ought to have been passed 12 . This isassessed at the time of the appeal hearing and new information can be takeninto account.Solemn Appeals8.1.6 The starting point in an appeal against conviction or conviction and sentencein solemn cases is the lodging of a Notice of Intention to Appeal. There is ashort time span of two weeks 13 for doing this; the Notice being only a formaldocument stating that intention 14 and no more. The Notice does not specifyany grounds of appeal. The time runs from the date of final determination ofthe case (i.e. the sentence) and that is very often, where reports have been9 1995 Act s 106(3)10 1995 Act s 175(5)11 Donaldson v HM Advocate 1983 SCCR 216, LJ-C (Wheatley) at 218; Addison v Mackinnon 1983SCCR 52, LJ-C (Wheatley) at 5512 1995 Act ss 118(4) and 18913 1995 Act s 10914 Act of Adjournal (Criminal Procedure Rules) 1996, Form 15-2A334
called for, four weeks after the jury’s verdict. After lodging the Notice, thereis a further eight week period 15 during which the applicant for leave to appeal,as the potential appellant then is, must lodge his/her Note of Appeal. It is thisdocument 16 which is supposed to contain a “full statement of all the groundsof appeal” 17 . Appeals against sentence proceed on the basis of a Note ofAppeal lodged within two weeks of the sentence 18 .8.1.7 All appeals against conviction and/or sentence require leave from a singlejudge of the High Court or, if that is refused, the Court itself sitting with aquorum of at least three (conviction) or two (sentence) judges. The test for thegrant of leave is whether the stated ground is “arguable” 19 . The requirementfor leave to appeal had been abolished following recommendations of theThomson Committee 20 . Thereafter, a convicted person had an automatic rightof appeal against conviction and/or sentence. In practice, “unstateable”appeals were largely eliminated from the system because counsel, who hadexclusive rights of audience in the High Court at that time, were ethicallybound not to present cases which had no basis in fact or law. Counsel requiredto advise accordingly and an appellant with no “stateable” case would eitherhave to abandon his/her appeal or present it himself/herself without furtherlegal assistance. Following the successful challenge to that practice before theEuropean Court 21 , the requirement that all cases must have leave was15 1995 Act s 110(1)16 Act of Adjournal (Criminal Procedure Rules) 1996, Form 15-2B17 1995 Act s 110(3)(b)18 1995 Act s 110(1)19 1995 Act ss 107(1) and 180(1)20 Third Report (Cmnd 7005) (1977) para 2.0921 Boner v United Kingdom 1995 SCCR 1, the appeal being resisted by the Lord Advocate (LordRodger)335
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Current Law8.1.5 A person convicted on indictment 9 or summary complaint 10 may be permittedto appeal against conviction <strong>and</strong>/or sentence on the ground that a miscarriageof justice has occurred. A miscarriage of justice in relation to a convictionmay occur in a number of ways, notably where there has been insufficientevidence or a misdirection of the jury. It can also occur because of thediscovery of “fresh” evidence. A miscarriage of justice in a sentence appealusually involves a first instance disposal which can be classified asincompetent, inappropriate or excessive 11 . The High Court is empowered tointerfere with a sentence simply if it considers that, having regard to all thecircumstances, a different sentence ought to have been passed 12 . This isassessed at the time of the appeal hearing <strong>and</strong> new information can be takeninto account.Solemn Appeals8.1.6 The starting point in an appeal against conviction or conviction <strong>and</strong> sentencein solemn cases is the lodging of a Notice of Intention to Appeal. There is ashort time span of two weeks 13 for doing this; the Notice being only a formaldocument stating that intention 14 <strong>and</strong> no more. The Notice does not specifyany grounds of appeal. The time runs from the date of final determination ofthe case (i.e. the sentence) <strong>and</strong> that is very often, where reports have been9 1995 Act s 106(3)10 1995 Act s 175(5)11 Donaldson v HM Advocate 1983 SCCR 216, LJ-C (Wheatley) at 218; Addison v Mackinnon 1983SCCR 52, LJ-C (Wheatley) at 5512 1995 Act ss 118(4) <strong>and</strong> 18913 1995 Act s 10914 Act of Adjournal (Criminal Procedure Rules) 1996, Form 15-2A334
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