Report and Recommendations - Scottish Government
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Report and Recommendations - Scottish Government

Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government

lx.iriss.org.uk
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12.07.2015 Views

8.2.9 It was perceived that there would remain a problem if, nevertheless, theSCCRC did refer “spent” cases. As already noted, the High Court would notbe able to take “the interests of justice” into account. Its role would berestricted to determining whether a miscarriage of justice had occurred in theparticular trial process. For this reason, the 2010 Act introduced anotherprovision 12 whereby:“(1) Where the Commission has referred a case to the High Courtunder section 194B of this Act, the High Court may, despite section194B(1), reject the reference if the Court considers that it is not in theinterests of justice that any appeal arising from the reference shouldproceed.(2) In determining whether or not it is in the interests of justice thatany appeal arising from the reference should proceed, the High Courtmust have regard to the need for finality and certainty in thedetermination of criminal proceedings”.The amendments made by the 2010 Act were designed specifically to dealwith cases where an applicant to the SCCRC, who had not appealed his/herconviction or had had his/her appeal or application for leave to appeal refused,sought to raise a Cadder point, even although the law was as stated in McLeanat the time of his/her appeal and/or trial.8.2.10 The amendments made by the 2010 Act apply to all SCCRC references andnot just to those raising Cadder points. They give to the High Court a gatekeepingrole, relative to the interests of justice, which formerly rested onlywith the SCCRC. Whereas, previously, the sole concern of the High Courtwas whether a miscarriage of justice had occurred in the trial process, it now12 s 7(4) introducing 1995 Act s 194DA360

extends to whether the Court considers that a reference ought to have beenmade “in the interests of justice” having regard, potentially, to a wide range ofcircumstances, including the reasons why the High Court might previouslyhave refused leave to appeal late or treated an earlier appeal as abandoned.8.2.11 This gate-keeping role has to be performed by the High Court at a preliminary(procedural) hearing in advance of any full hearing on the merits of thereference. Although the power to reject a reference has not yet beenexercised, it might be envisaged that the High Court may refuse to entertain areference in circumstances where, if an application for a late appeal were tohave been made, it would have refused to grant such an application. Equally,it might refuse a reference, if it had already refused to entertain a late appealand there was no change in circumstances. There may be cases in which theSCCRC and the High Court could reach a different decision on where theinterests of justice may lie.Consideration8.2.12 There are three main questions to answer: first, is it appropriate that thereshould be a specific requirement for the SCCRC to consider finality andcertainty in deciding whether to refer and, if so, should other aspects of the“interest of justice” test be similarly specified; secondly, should the HighCourt’s “gatekeeping role”, provided for in the 2010 Act, be continued; andthirdly, are there any other ways in which finality and certainty, or the wider361

extends to whether the Court considers that a reference ought to have beenmade “in the interests of justice” having regard, potentially, to a wide range ofcircumstances, including the reasons why the High Court might previouslyhave refused leave to appeal late or treated an earlier appeal as ab<strong>and</strong>oned.8.2.11 This gate-keeping role has to be performed by the High Court at a preliminary(procedural) hearing in advance of any full hearing on the merits of thereference. Although the power to reject a reference has not yet beenexercised, it might be envisaged that the High Court may refuse to entertain areference in circumstances where, if an application for a late appeal were tohave been made, it would have refused to grant such an application. Equally,it might refuse a reference, if it had already refused to entertain a late appeal<strong>and</strong> there was no change in circumstances. There may be cases in which theSCCRC <strong>and</strong> the High Court could reach a different decision on where theinterests of justice may lie.Consideration8.2.12 There are three main questions to answer: first, is it appropriate that thereshould be a specific requirement for the SCCRC to consider finality <strong>and</strong>certainty in deciding whether to refer <strong>and</strong>, if so, should other aspects of the“interest of justice” test be similarly specified; secondly, should the HighCourt’s “gatekeeping role”, provided for in the 2010 Act, be continued; <strong>and</strong>thirdly, are there any other ways in which finality <strong>and</strong> certainty, or the wider361

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