News In Focus
Court will respect SCCRC view on finality test
12 September 2012
Appeal judges have undertaken that only in rare circumstances will they override a conclusion by the Scottish Criminal Cases Review Commission that a case should be given a further hearing.
The High Court was given a power in the emergency legislation passed following the Cadder ruling in the Supreme Court in 2010, to reject a reference applying an "interests of justice" test having regard among other things to the need for finality and certainty in the determination of criminal proceedings. The provision was controversial, but in reasons now published for its decision to allow hearings in two references, RM and Edward Gallacher, the court has said it will respect the Commission's judgment on this issue.
RM was convicted in 2009 of a rape committed the year before and sentenced to five years. The Commission decided that evidence of potentially incriminating statements he made while in police detention, without having been offered access to a solicitor, along with a possible ambiguity in the verdict and the fact that the sentence had not yet expired, justified a reference.
Gallacher was convicted in 2004 of a series of indecency offences and given an extended sentence of four years. He did not appeal and an application to the Commission later that year was rejected. He re-applied after the Cadder decision and the Commission decided to refer his case, also on the ground of incriminating statements made without advice and because Gallacher had never acquiesced in his conviction but had continued to deny his guilt and dispute the fairness of the police interview.
The Crown did not oppose the references but sought clarity over the test to be applied.
Giving the court's opinion Lord Hamilton, since retired as Lord Justice General, said that the Commission as an independent body specifically entrusted with considering cases of possible miscarriages of justice had decided that it was in the interests of justice that it should make these references, having considered the interests of finality and certainty.
He continued: "Although this court has been given the power to reject a reference in language that replicates the provision applicable to the Commission..., it cannot be right for us simply to duplicate the Commission's function and give effect to our own view. In light of the impressive record of the Commission, it is unlikely that we will have cause to differ from its judgment on this point."
He added: "In my view, we should reject a reference only where the Commission has demonstrably failed in its task; for example, by failing to apply the statutory test at all; by ignoring relevant factors; by considering irrelevant factors; by giving inadequate reasons, or by making a decision that is perverse."
In the present cases, he concluded, he could see no flaw in the Commission's approach. "My own view is that the interests of justice test is satisfied in both cases."
Click here to view the opinion of the court.