Report and Recommendations - Scottish Government

used by the High Court in determining whether to grant leave to appeal (i.e.arguability). On the other hand, the test is less stringent than that applied bythe Court in allowing an appeal, i.e. that a miscarriage of justice has, and notjust “may have”, occurred in the trial process. But it does contain animportant additional element beyond that presently applied by the Court eitherwhen granting leave or in allowing an appeal, i.e. that it is “in the interests ofjustice” that a reference should be made. Prior to the 2010 Act, there was norestriction or guidance on the matters which the SCCRC may take into accountunder this heading.2010 Act8.2.8 Because of the concern that Cadder might result in a flood of applications tothe SCCRC and consequent references to the court, many of which, on oneview, would have resulted in the quashing of the relative convictions, the 2010Act expanded on the interests of justice element in the test to be applied by theSCCRC by providing that 11 :“In determining whether or not it is in the interests of justice that areference should be made, the Commission must have regard to theneed for finality and certainty in the determination of criminalproceedings”.The intention was to ensure that, when assessing an application, the SCCRCwould be bound to take into account the dictum in Arbour Hill Prison relativeto “spent” cases (i.e. those where the time limits for an appeal had expired orthe appeal, or application for leave to appeal, had been refused).11 s 7(3) introducing 1995 Act s 194C(2)359