Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
for undermining the important role of the SCCRC within the criminal justicesystem.8.2.21 On the other hand, SCCRC references are not, or at least ought not to be, thesame as appeals made in the ordinary manner. However egregious a potentialmiscarriage of justice may be, the SCCRC cannot refer the case to the HighCourt unless they also believe it would be in the interests of justice to do so. Ifthe Court were to be allowed to consider the interests of justice test, all that itwould be doing would be applying part of the same statutory test as that laiddown by Parliament for making a reference in the first place. Of course, if theSCCRC apply the test appropriately, the Court should rarely have any basisupon which to reject a case on this ground. But if it is for the SCCRC toconsider whether it is in the interests of justice to refer a case, then logically itmay also be appropriate for the Court to consider such a test at least whendetermining the appeal. It is countered that, if the SCCRC does notappropriately consider the interests of justice, the Crown could elect to“judicially review” the reference 18 . But introducing a civil process into thisarena, and one involving an Outer House judge at least initially, may be seenas unnecessarily elaborate.8.2.22 The case for maintaining a gatekeeping role for the High Court would havegreater force if there were a perception that the SCCRC had a significant trackrecord of frivolous or inappropriate references and it were thought that somefurther measure was required to bring greater discipline to their activities. The18 for a challenge by applicants see M Petnr 2006 SLT 907, and in England see R (on the application ofDirector of Revenue and Customs Prosecutions) v Criminal Cases Review Commission [2007] 1 CrApp R 30366
Review is content to note that there has been no suggestion from any source,nor is there any other reason to suppose, that this is the case. Indeed, it seemsto be widely accepted that, despite the occasional lapse, the SCCRC has beena conspicuous success in discharging its duties conscientiously andresponsibly.8.2.23 The “flood” of referred cases that was feared following Cadder has notmaterialised. The Review understands that, in the period from the Cadderdecision in October 2010 up until July 2011, there were thirty-eightapplications to the SCCRC citing Cadder grounds. Added to fourteen similarapplications made before Cadder was finally determined, this makes a total offifty-two applications. Of these fifty-two applications, at least twenty-fourhave been fully processed by the SCCRC and none have been referred to theCourt. It may be that a proportion of the remaining twenty-eight cases mayresult in references, but this cannot be said to be a deluge. The Review notesthat more references may arise following Ambrose. However, the outcome ofthat case would suggest that they will be very few in number.8.2.24 In all these circumstances, it is inappropriate for the Appeal Court to have agate-keeping role in relation to references from the SCCRC because of theeffect which such a role could have relative to the function committed byParliament to the SCCRC. That new provision of the 1995 Act ought to berepealed.367
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- Page 374 and 375: 372Annex A
- Page 376 and 377: Annex AFiscal) to assess these case
- Page 378 and 379: Annex Aconviction, were the rule of
- Page 380 and 381: 378Annex A
- Page 382 and 383: Annex BRight of access to a lawyer
- Page 384 and 385: Annex BRight of access to a lawyer
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- Page 388 and 389: 386Annex C
- Page 390 and 391: 388Annex D
- Page 392 and 393: Annex ELondon - 18 th -19 th May 20
- Page 394 and 395: Annex EConsultative Meetings - cont
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- Page 406 and 407: Annex GCases referred to in this Re
- Page 408 and 409: Annex GGordon v HM Advocate 2010 SC
- Page 410 and 411: Annex GParker v The Queen [2007] NT
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Review is content to note that there has been no suggestion from any source,nor is there any other reason to suppose, that this is the case. Indeed, it seemsto be widely accepted that, despite the occasional lapse, the SCCRC has beena conspicuous success in discharging its duties conscientiously <strong>and</strong>responsibly.8.2.23 The “flood” of referred cases that was feared following Cadder has notmaterialised. The Review underst<strong>and</strong>s that, in the period from the Cadderdecision in October 2010 up until July 2011, there were thirty-eightapplications to the SCCRC citing Cadder grounds. Added to fourteen similarapplications made before Cadder was finally determined, this makes a total offifty-two applications. Of these fifty-two applications, at least twenty-fourhave been fully processed by the SCCRC <strong>and</strong> none have been referred to theCourt. It may be that a proportion of the remaining twenty-eight cases mayresult in references, but this cannot be said to be a deluge. The Review notesthat more references may arise following Ambrose. However, the outcome ofthat case would suggest that they will be very few in number.8.2.24 In all these circumstances, it is inappropriate for the Appeal Court to have agate-keeping role in relation to references from the SCCRC because of theeffect which such a role could have relative to the function committed byParliament to the SCCRC. That new provision of the 1995 Act ought to berepealed.367
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