Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
References to the High Court8.2.25 In references, there are wider considerations than exist in an ordinary appealprocess, when the Court is generally only reviewing the proceedings in thetrial court, although fresh evidence may also have an impact. By the time areference is made, there may also have been a previous conscious decision byan applicant not to appeal, or not to do so on particular grounds. He/she mayhave abandoned an appeal or expressly departed from one or more grounds.There may have been a decision to refuse an applicant leave to appeal lateeither because of the absence of any arguable grounds or on the merits of theapplication as framed. In a reference, it may transpire that there is “fresh”evidence on both sides. Rather than continuing the process by, for example,ordering a re-trial 19 , it may be more appropriate for the Court to be able tobring matters to a conclusion in a reference by considering, in whatever orderit deems appropriate in the particular case, but after a final hearing, whether:(a) there has been a miscarriage of justice in the trial process; and (b) it is alsoin the interests of justice that the appeal be allowed. The law might thereby beadvanced in so far as the Court can determine in appropriate cases what widerconsiderations of justice might result in a conviction being sustained,notwithstanding the finding of a material miscarriage in the original trial orappeal proceedings. Such a determination may assist the SCCRC whenconsidering the interests of justice in subsequent applications.19 e.g. Fraser v HM Advocate 2011 SLT 515368
RecommendationsI therefore recommend that:⎯ section 194 C(2) of the 1995 Act (as inserted by Section 7(3) of the2010 Act) which introduces a requirement on the SCCRC to consider“finality and certainty” in considering a reference, should be retained.There should, however, be no further statutory listing of the criteriaincluded in the “interests of justice” test for SCCRC references;⎯ section 194 DA of the 1995 Act (as inserted by Section 7(4) of the 2010Act) which provides a “gate-keeping role” for the Appeal Court inrelation to references from the SCCRC should be repealed; and⎯ when considering appeals following upon references from the SCCRC,the test for allowing an appeal should be that:(a) there has been a miscarriage of justice; and(b) it is in the interests of justice that the appeal be allowed.369
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<strong>Recommendations</strong>I therefore recommend that:⎯ section 194 C(2) of the 1995 Act (as inserted by Section 7(3) of the2010 Act) which introduces a requirement on the SCCRC to consider“finality <strong>and</strong> certainty” in considering a reference, should be retained.There should, however, be no further statutory listing of the criteriaincluded in the “interests of justice” test for SCCRC references;⎯ section 194 DA of the 1995 Act (as inserted by Section 7(4) of the 2010Act) which provides a “gate-keeping role” for the Appeal Court inrelation to references from the SCCRC should be repealed; <strong>and</strong>⎯ when considering appeals following upon references from the SCCRC,the test for allowing an appeal should be that:(a) there has been a miscarriage of justice; <strong>and</strong>(b) it is in the interests of justice that the appeal be allowed.369
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