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Sheridan fails with SCCRC judicial review attempt

11 April 2019

Tommy Sheridan has failed before the Inner House of the Court of Session in his attempt to bring a judicial review of a refusal to investigate an alleged miscarriage of justice relating to his conviction for perjury.

The former Scottish Socialist Party leader had applied to the Scottish Criminal Cases Review Commission to look into his 2010 conviction on a charge of lying on oath in his defamation case against the News of the World. He failed in the Outer House, where the Lord Ordinary held that the SCCRC was entitled to conclude that he had not produced material which challenged the soundness of the verdict in his trial, and had failed to demonstrate that they were not entitled to come to the conclusions they did. While he made allegations against counsel acting for his co-accused, he had been unable to say how these had prejudiced him.

Delivering the opinion of the Inner House, Lord President Carloway, who sat with Lord Menzies and Lord Drummond Young, said Mr Sheridan had failed to appreciate "the limitations under which the court operates" when asked to review the decision of a specialist body such as the SCCRC. There was no statutory appeal process and review could only be on "conventional grounds of illegality". 

His allegation of error of law was little more than "a contention that, having regard to a string of documents in connection with [News Group's] illegal or improper activites, the respondents' decisions were wrong", in circumstances "where no such error is visible".

The "fundamental flaw" in the applicaiton for judicial review was the idea that the existence of a conspiracy by News Group, or members of his party, to "get" or "target" Mr Sheridan amounted to a defence to the charge iof perjury. While this miught serve to undermine the credibility or reliability of witnesses, "It does not follow that... the jury would be bound, or even likely, to acquit."

The SCCRC was not bound to conduct a general inquiry into the circumstances of the conviction, and Mr Sheridan "cannot view the respondents as his own personal private investigators". While he had "bombarded" it with a mass of material, the existence of an alleged conspiracy against him was an issue that "had already been well alight at the trial". The SCCRC had not been asked to use their powers to obtain further material; it was entitled to consider whether the information was material to the issue of miscarriage of justice; and most important, it had reasoned that demonstrating the conspiracy "would not have affected the jury's verdict given the strength of the Crown case".

Click here to view the opinion of the court.

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Res

Monday April 15, 2019, 20:54

There is something fundamentally unsound about the fact that no one ever succeeded in judicial review proceedings against the commission. It is as if the commission is incapable of making a mistake. I don't say that Tommy should have a referral.

However, when confronted with statistics where since its inception no one is ever successful against the commission in JR, it gives the appearance that the commission enjoys some form of immunity in Scotland when it comes to its decision to not refer.

In contrast, there have been successful challenges to its counterpart in England & Wales. Instead of seeking court's permission for judicial review against SCCRC, there should be exception in law allowing automatic right to review SCCRC's decision to not refer. There seems to be too much power vested in SCCRC and there should be some other form of checks and balances.