Report and Recommendations - Scottish Government

have his/her case referred back to the High Court. However, in that year theSCCRC was established 7 as a body independent of the Government, Crownand Judiciary, to consider applications claiming that a miscarriage of justicehad taken place.8.2.6 The SCCRC may refer a case to the High Court if they 8 :“believe –(a) that a miscarriage of justice may have occurred; and(b) that it is in the interests of justice that a reference should bemade”.This is a much less restrictive test than that current in England and Wales,where it is whether there is a real possibility that the conviction would not beupheld, if a reference were made, because of an argument, or evidence, notraised in the trial or prior appellate proceedings and an appeal has beendetermined or leave to appeal has been refused 9 . There is no enthusiasm forany change in the Scottish test to make it similar to that in England andWales 10 .8.2.7 It can be seen immediately that on the one hand, in deciding whether to refer acase, the SCCRC have to apply a different, and more stringent, test from that7 1995 Act s 194A, inserted by the Crime and Punishment (Scotland) Act 1997 following therecommendations of the Sutherland Committee8 1995 Act s 194C9 see R v CCRC ex parte Pearson [2000] 1 Cr App R 141 analysing the Criminal Appeal Act 1995 s 13.The CCRC must have regard to the test which the courts apply in refusing leave to appeal late,especially in change of law situations (R v Hawkins [1997] 1 Cr App R 234), when consideringwhether to refer a case (R v Cottrell [2008] 1 Cr App R 7) see Nobles and Schiff: Absurd Asymmetry[2008] 71 MLR 464 and Sinclair: The Relationship between the Commission and the Court10 England and Wales and Norway being the only two other jurisdictions with such a Commission358