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Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill

27 Oct 10

Glasgow Bar Association briefing to MSPs

As this is emergency legislation and there is to be very limited time for contemplation and consideration of amendments this bill should only contain provision which are necessary.

Detention

It is unclear that the extension to the period of detention from six to 12 hours is required in all cases. Has sufficient evidence been adduced from the police and other stakeholders about the manner in which the interim measures are working or not? This would be the justification for this amendment taking effect in all cases. One can certainly conceive of cases where it would assist but these may be the exception. If six hours is not working across the board then that requires to be extended, but only if there is evidence that it is not working.

The exception provided – on the exercise of discretion by the police – to interview is:
“(8) A constable may delay the suspect’s exercise of the right under subsection (3) so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with a solicitor.”
Potentially this enacts a change to reverse the effect of the Cadder judgment. The exceptions in which departure from the requirement is permitted ought to be strictly drawn – as Lord Hope says, “only if the facts of the case make it impracticable to adhere to it” (para 41).

The inclusion of sections 6 and 7 in this bill is curious. They are not only amendments which deal with Cadder type situations. They will apply to every appellant. Those significant changes to the law of Scotland are matters which do require considered thought rather than a rush to legislate.

Clause 5

Why is the granting to the respondent in an appeal (invariably the Crown) where an extension of time is sought, of a right to make representations connected rationally with the Cadder decision? Where is the urgency to be found in having to incorporate this in emergency legislation?

Clause 6

Introducing a time limit (arbitrarily chosen) for bills of suspension and bills of advocation (clause 6) is again not appropriate for this sort of legislation. It is also unnecessary. In the wake of Starrs v Ruxton and the ruling upon the Convention incompatibility of temporary sheriffs there was an avalanche of cases. These were first met by an argument from the Crown that accused persons had waived their right to an independent and impartial tribunal. This argument was ultimately unsuccessful: Millar v Dickson 2001 SLT 988.

Thereafter the Crown argued acquiescence. This ultimately succeeded in the Judicial Committee of the Privy Council: Ruddy v Griffiths 2006 SCCR 151. In that case Lord Rodger surveyed the (extensive and aged) case law on the matter. This case was and remains sufficient to deal with any arguments about attacks on convictions which come far too late.

In para [29] he explained what a bill of suspension was:

“Bills of suspension are short, straightforward documents which can be drafted quickly and lodged soon after the allegedly unlawful conviction or sentence. They can therefore bring prompt relief from the effects of that conviction or sentence. The bill will generally seek interim suspension of the conviction or sentence and interim liberation, if the complainer has been imprisoned. The bill is put before a single judge of the High Court who may grant interim suspension or liberation and, if the single judge refuses the application, it can be renewed before three judges. I rehearse these well-known features of the procedure simply to emphasise that it is designed to be, and usually is, set in motion soon after conviction or sentence. In this way it ensures, so far as is possible and appropriate, that the complainer does not actually suffer the effects of the allegedly unlawful order of the lower court before the High Court can rule on its legality.”

The expected approach of the court to aged applications to it on the basis of Cadder is as follows:

“But where a party delays and so allows more than a reasonable time to elapse without presenting a bill, that may be enough of itself for the court to infer that he had acquiesced and had decided not to challenge the conviction or sentence. After all, the court may conclude, if the complainer had intended to mount a challenge, he would have done so within a reasonable time. What constitutes a reasonable time for these purposes depends on the circumstances. A party who has no other serious distractions might reasonably be expected to take proceedings within a period which would not be reasonable for someone who had, for example, been stricken by illness, whose child had been seriously ill or died, whose house had been burned down or who had been called away on active military service. In such cases the court would take account of these circumstances in deciding whether the complainer should be taken to have acquiesced."

Clause 7

The Scottish Criminal Cases Review Commission was set up in response to concerns initially expressed south of the border about the Secretary of State being solely responsible for the exercise of the Crown prerogative of mercy and referrals back to the appeal court. These were mirrored in the Sutherland Committee which gave careful thought to the body, its powers and the fact that logically it displaced the statutory recognition of finality in the criminal process.

The Sutherland Committee

The Sutherland Committee was appointed in November 1994 to examine whether change was required in (i) the existing statutory criteria for the consideration of appeals by the appeal court, and (ii) the procedures for referral of alleged miscarriages of justice by the Secretary of State to the appeal court. The committee reported in June 1996. (The report is hereinafter referred to as "Sutherland").

The setting up of the committee was overtly prompted by the recommendation of the Runciman Commission in England that the Home Secretary's power to refer cases to the court of appeal should be removed and placed in the hands of an independent Commission (see Sutherland 1.4).

It is to be noted that, even in the context of "normal" (as opposed to reference) appeals, Sutherland identified the need to "strike a balance between the need for flexibility to correct any miscarriage of justice and the principle of finality of proceedings" (Sutherland 2.3). In arriving at the conclusion that there was a need to change the existing criteria for appeals, Sutherland clearly regarded as material the perception that the court took an unduly narrow approach to the statutory provisions.

Sutherland stressed the need for a single broad ground of appeal to allow flexibility
in the consideration of appeals (Sutherland chapter 2, especially 2.21 & 2.30):

“2.21 The great weight of evidence submitted favoured the retention of a single broad
statutory ground of appeal, although there was no consensus on what that ground
should be. Perhaps somewhat paradoxically, given the criticisms which were made
about the narrow interpretation of the current legislation by the judiciary, the need to
allow for flexibility in the court's consideration of appeals was a recurring theme in
the justification for this view...

“2.30 ...Put simply, the court should be empowered to review any and all relevant
considerations relating to the case - whenever they may have arisen - in determining
whether a miscarriage of justice has, in fact, occurred...”

The need to avoid an unduly restrictive approach is also apparent in Sutherland's identification of the main criticisms of the Secretary of State referral system, namely (i) the executive exercising quasi-judicial function, (ii) the existing appeals criteria being too restrictive and acting as a barrier to the proper consideration of some petitions, (iii) the inappropriateness of prosecution agencies investigating alleged miscarriages of justice, (iv) a perceived lack of rigour in investigations of alleged miscarriages, and (v) justice not being seen to be done. (Sutherland 5.25)

Sutherland was very clear (5.63) as to the need for broad and flexible criteria for referral and recommended that:
"...The new body should be able to refer cases to the appeal court (i) where the normal appeals procedures have been exhausted and (ii) where it believes a miscarriage of justice may have occurred and it is in the interests of justice that the case should be referred.”

However, there is a certain resonance with Sutherland's description (at 5.8) of the existing criteria applied by the Secretary of State's department:

"The criteria which are presently applied to assess cases alleging a miscarriage of justice are: (i) whether the petition submitted, or information obtained in the course of examination or investigation of the petition, contains material relevant to the conviction which suggests a miscarriage of justice may have occurred; (ii) if so, whether the appeal court would as a matter of law entertain the case on a reference."

It is submitted that the criteria recommended by Sutherland were intended to be a broader and more flexible restatement of those applied under the existing procedures.

Role of the Commission

There are certain key features which can be identified as defining the intended role of the Commission. These are:

  • To provide a body that is detached from the legal system which can take a different, less formal and broader approach, to alleged miscarriages of justice. In deserving cases, such a body can put a case back into the legal system and ask the court to look at it again. Hence the composition of the Commission, with the balance weighted toward non-legal participants; hence the absence of formal procedures in the statutory framework; and hence also the focus of the Commission on the reliability of information as opposed to legal or formal rules regarding same.
  • To provide a body which is independent from both the courts and the political process. Hence the departure from the scheme under the Secretary of State. See the description of the Commission by Sir Gerald Gordon (Commission member) in his commentary on Robertson v Frame 2005 SCCR 134: “Recourse to the Scottish Criminal Cases Review Commission to bring an appeal out of time is, in a sense, recourse to a process outside the normal system, available when the normal system is unable to afford a remedy. But this ‘extraordinary’ remedy is available for what might be called ‘real’ miscarriages of justice and available only where its use is in the interests of justice: Criminal Procedure (Scotland) Act 1995, s 194C, and not for hypothetically apparent injustices like trial by a temporary sheriff.”
  • To provide a body independent from the Crown which can thoroughly investigate deserving cases. This investigatory role was missing in the existing system of Secretary of State referrals and is a key role of the new body. Hence the emphasis in the statute on setting out the unique investigatory powers of the Commission.

These features have shaped the approach the Commission to its work since its inception. So, for example:

The Commission has focused on investigation and the uncovering of information. Within this approach, assessment is made by having regard to the reliability of the information obtained as opposed to legal or formal rules regarding same. For example, the Commission expressly indicates that it is not concerned with whether or not evidence is inadmissible. (See for example Commission Annual Report 2004-05, section 2.)

It has expressly stated that its role is inquisitorial. (This is acknowledged in the Crown submissions at 3.3).

It describes itself as a "truth seeking body" .

It has tended to take a flexible "outcome" approach as opposed to a legal "process" approach in reaching it conclusions. That is to say, it tends toward conclusions based on impressions of guilt or possible innocence as opposed to regard to the technical or legal integrity of the proceedings. For example it has referred a case on the basis of an "unease" it was unable to define in legal terms – see Harper v HMA 2005 SCCR 245.

The Supreme Court in Cadder said (see Lord Hope at para [62]:

“The Scottish Criminal Cases Review Commission must make up its own mind, if it is asked to do so, as to whether it would be in the public interest for those cases to be referred to the High Court. It will be for the appeal court to decide what course it ought to take if a reference were to be made to it on those grounds by the Commission.”

Lord Rodger at [103]: “The only way, therefore, in which the court’s decision in this case could have any effect on completed cases would be, indirectly, through the mechanism of such a reference by the Review Commission. It is, however, no part of this court’s function, in an appeal to which the Commission is not a party, to comment on the approach that it should adopt in handling any application for such a reference. It is for the Commission to consider where the public interest lies if an application is made to it for a reference to the High Court in a case that was properly conducted according to the law as understood at the time. A fortiori, it is no part of this court’s function on this occasion to comment on the approach to be adopted by the appeal court if the Commission should make a reference in such a case. That would be a matter for the appeal court to determine in the light of the arguments presented to it.”

This respect and sensitivity to the work of the Commission has been repeated by the High Court:

“The relationship between the court and the Commission is one of some delicacy since much of the raison d'être of the Commission is to review cases where the court has refused an appeal and, if appropriate, to refer the case to this court to consider de novo” (Scottish Criminal Cases Review Commission, Petitioners at para [12]).

This suggests that the court should be circumspect in its dealings with the Commission, lest there is a risk that it inhibits or, gives the impression of inhibiting, the work of the Commission in seeking to investigate possible miscarriages of justice. Further, the Commission is a public body charged with public functions.

They had every faith that the Commission was the correct body to be charged with dealing with such cases. They had respect for the Commission – recognising that they should not influence their decisions. The justices considered that it would be improper to influence what they did with those cases. Why – given the care and sensitivity to enshrine the commission’s independence in statute – would this Government seek to influence its role in this way?

The court too recognises the statutory exception to the finality principle – why does it have to be reminded of that?
This represents an overall diminution in the ability of appellants to appeal, and more significantly given the important role of the Commission in detecting miscarriages, is an unwarranted diminution of their previously unrestricted right to refer cases back.

This will affect all applications (present and future) with the Scottish Criminal Cases Review Commission.

Is this appropriate in a piece of emergency legislation?

 


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