The relationship between the Scottish Criminal Cases Review Commission and the appeal court, and their respective views on what constitutes a miscarriage

In June, the Scottish Criminal Cases Review Commission published its 6th Annual Report (available on The Commission is now recognised, and accepted, as an integral part of the criminal justice system in Scotland, with both the public and the legal profession becoming more comfortable and familiar with its function and the manner in which cases are investigated and reviewed.

The report reveals that the Commission has reviewed 550 cases since its creation in 1999, and has referred 47 cases to the appeal court in that six year period. These figures are in sharp contrast to the substantially smaller figure of only 20 cases which were referred in the 73 year period prior to the creation of the Commission, when allegations of miscarriage of justice were investigated by the office of the Secretary of State for Scotland.

Although the Commission has been involved in a number of successful referrals (11 out of the 21 cases already decided by the appeal court), little has been written about the separate functions and powers of the Commission and the High Court in Scotland in dealing with a potential “miscarriage of justice”. In particular, apart from an early, but very useful, analysis of the role of the Commission by Professor Peter Duff, one of the present commissioners (“Criminal Cases Review Commissions and Deference to the Courts: The Evaluation of Evidence and Evidentiary Rules” [2001] Crim LR 341), there has been little consideration of whether there exists a dichotomy of views between the two bodies as to the meaning of the phrase “miscarriage of justice”, and, if there is, whether such a difference is to be viewed as a healthy and natural source of legal and academic debate, or as a defect in the appeal process within Scotland.

This article seeks to encourage a process of debate, by outlining the legislative powers of the Commission and the basis on which the Commission seeks to exercise its powers, in terms of assessing “miscarriages of justice”; and by attempting a short comparison of the different challenges and concerns which face the Commission and the High Court in interpreting the phrase “miscarriage of justice”.

SCCRC – the legislation

The Commission was created by section 194A of the Criminal Procedure (Scotland) Act 1995. Section 194B of the Act enables the Commission, if it thinks fit, to refer any conviction or sentence passed on a person convicted on indictment or complaint to the High Court, whether or not an appeal against such conviction or sentence has been heard and determined by that court.  Under section 194B(1), once a case is referred, the High Court will determine the case as if it were a normal appeal (i.e. the court will deal with the appeal in terms of, and subject to any restrictions imposed by, section 106 of the Act). The effect of this will be considered later.

Section 194C outlines the grounds on which any reference may be made. The Commission must believe:

  • that a miscarriage of justice may have occurred; and
  • that it is in the interests of justice that a reference should be made.

Neither of these phrases has ever been given a technical or precise legal definition, and, in fact, the second test is one that is unique to the Commission. Reference to the Report of the Sutherland Committee (Cm 3245, 1996), the body which recommended the creation of the Commission, provides little assistance, as no attempt was made by that body to define either test. Accordingly the Commission has required over time to formulate its own interpretation of the two tests.

The miscarriage of justice test

Historically, courts and judicial bodies have been wary of forming any definitive view of the phrase “miscarriage of justice”, and the 1995 Act itself does not provide any specific definition for the guidance of the Commission. In reviewing cases, however, the Commission has a unique role in Scotland, as an inquisitorial or “truth seeking” body which is not unduly bound by the formal court rules of evidence and procedure, and as such it has always been guided by considering whether the outcome of a case was “fair, just and equitable”.

Notwithstanding these rather fine ideals, the Commission must also take account of any relevant statutory directions, previous precedents and case law, and accordingly it is perhaps not too surprising that the grounds on which the Commission has concluded that there may have been a miscarriage of justice include instantly recognisable grounds such as fresh evidence, an unreasonable verdict of the jury, or a significant misdirection by the trial judge. Other examples are outlined in more detail in the annual report.

The interests of justice test

Having satisfied itself that a miscarriage of justice may have occurred, the Commission does not automatically refer a case to the appeal court, as it has also to decide whether or not it is in the interests of justice to refer the case. The Commission takes the view that, where it believes that a miscarriage of justice may have occurred, there have to be strong grounds for concluding that it is not in the interests of justice to refer a case. Only in exceptional cases will a case be refused using this ground.

Again, there is no simple or definitive list of examples that can be given to identify situations in which the Commission will decide that it is not in the interests of justice for a case to be referred, but some of the following factors, sometimes in combination with others, have formed the basis for a refusal to refer: the lack of any practical benefit to the applicant of a successful appeal (where, for example, there is no basis for referring a more serious charge for which the applicant received a longer sentence); where a procedural irregularity did not have a material effect on the outcome of the trial; or where, despite evidence of a “miscarriage of justice”, there is compelling evidence of the guilt of the applicant.

It is clear from these latter examples that the Commission sees its principal role within the Scottish criminal justice system as one of providing a means whereby wrongful convictions can be corrected. None of the second set of examples (except perhaps the second one, where the irregularity was minor) would be likely to defeat an appeal before the High Court, based upon the statutory criteria under section 106. In carrying out any assessment under the second test, the statutory provisions under which the Commission operates enable it to take account of factors which would not normally be considered within the procedural restrictions imposed by the more formal appeal process in the High Court. It would appear therefore that, in setting this two-tier test, Parliament did not intend the Commission to act merely as a new sift process for the appeal court.

The appeal court – the legislation

Section 106(3) of the 1995 Act, as amended by section 17 of the Crime and Punishment (Scotland) Act 1997, defines the basis upon which the High Court may review an alleged miscarriage of justice. It provides that in an appeal against conviction, the court can review any alleged miscarriage, including an application based on one of the following two grounds:

  • evidence not heard at the original trial, provided a reasonable explanation is provided of why it was not heard (section 106(3)(a));
  • the jury’s verdict was one that no reasonable jury, properly directed, could have returned (section 106(3)(b)).
The question arises, should an interpretation of the term “miscarriage of justice” as it applies to the Commission under section 194C of the Act be different from that applied by the High Court under section 106? The recent decision of Harper v HMA 2005 SCCR 245 provides a useful starting point in an attempt to form a view on this matter.

The Harper case

In Harper, the accused was convicted of the robbery and murder of a 66 year old man, at his home in East Kilbride. At trial, the Crown case relied mainly on the recovery of a number of stolen items, which had the fingerprints of the accused and bloodstaining from the deceased on them, as well as an eyewitness account of the accused seen leaving the deceased’s flat on the day he was believed to have been killed (a Saturday). The accused did not deny the theft of the items, or assaulting the deceased, but his position was that these incidents had occurred on the Friday, not the Saturday, and that the deceased had been alive and well when he left him. A number of defence witnesses spoke to the accused being in possession of the stolen items on the Friday. Other witnesses spoke to seeing the deceased alive during the course of the Saturday. The Crown position at trial was that the robbery and murder had occurred at the same time (i.e. on the Saturday evening), and the defence witnesses were simply wrong when they spoke about the accused being in possession of the stolen items on the Friday.

During its investigation of the case the Commission considered a volume of material, including material which had been available prior to the trial but had not been used or relied on by either the Crown or defence. Among the matters considered, the Commission noted that the accused had initially been charged with the murder as a result of an alleged confession to the police. The confession however was an admission by the accused that he had carried out an assault and robbery on the Friday evening, and when it was noted that this was inconsistent with the other Crown evidence clearly showing the deceased alive on the Saturday, it was never used or referred to at trial. The Commission believed that this could have been a material matter for the jury’s consideration, as it supported the defence evidence, and might have undermined the Crown’s position. Another factor was that a potential witness, Joyce McMillan, had been spoken to by both Crown and defence prior to the trial, and had indicated that a number of youths frequented the house of the deceased on a regular basis, and often borrowed money from him. Ms McMillan was not called at the trial, as she suffered from alcoholism and was considered to be an unreliable witness. The Crown’s position at trial was that the deceased had been something of a loner and seldom had visitors to his house.

In referring the case, the Commission acknowledged that the referral was not based on any ground previously recognised by the appeal court as being capable of leading to a miscarriage of justice, but on the basis that, in the light of the information which had been uncovered and considered by the Commission, some of which was not heard at the original trial, there existed amongst the Commission members an unease about the conviction. Lord Osborne, in issuing the opinion of the court, considered the terms of section 106 of the 1995 Act, and noted that the function of the appeal court was not to conduct a general review of jury decisions and, in the event of the court being persuaded that the jury were mistaken, substitute its own view in place of the jury’s verdict (paragraph 38). To do so would, in his view, involve the court engaging in an activity which Parliament had not authorised.

Background influences

This is not a new or controversial position, and follows other High Court appeal decisions, such as King v HMA 1999 SCCR 330. It reinforces the view that even if the High Court, on some general basis, forms a view that the verdict in a particular case was unsatisfactory, it would not be prepared to set aside such a verdict unless sufficient grounds could be established which fell within the criteria laid down in section 106(3). Although Lord Osborne states that “it would be difficult or impossible or unwise to attempt a comprehensive definition of the concept of miscarriages of justice”, while identifying subsection (3)(a) and (b) as “examples of what may constitute a miscarriage of justice”, it is perhaps worthy of note that a trawl of previous appeal decisions from the High Court reinforces the view that it appears unwilling to open the floodgates for potential appeals, by seeking to widen the definition of a miscarriage of justice. The reasons for this may be understandable, and may arise from the traditional conflicting tensions which exist in the role of the appeal court. It is the ultimate forum in criminal matters in Scotland, and as such must provide both certainty and finality. It is required to quash convictions where they constitute miscarriages of justice, but it is not its function to replace or override juries by substituting its own view of the evidence for that of a jury. On a more mundane management level it also has to attempt to control the number of appeals which can be heard, so that it can cope within the staffing and workload requirements of the court. This it does by the use of a combination of processes, including the sift procedure, leave requirements, and statutory time limits for appeals.

Such considerations do not trouble the Commission, as no such restrictions were placed upon it when it was set up. Any study of the historical factors that led to the creation of the respective Review Commissions in both England and Scotland starts with the general public disquiet, and the media campaigning, for a new, faster and less conservative approach to dealing with cases such as the Guildford Four and the Birmingham Six. The wish at the time was to create a body that was more proactive in the investigation of allegations of miscarriages, more flexible in its ability to consider cases, and more willing to challenge the restrictions which the public believed were unnecessarily placed on those who sought to have wrongful convictions overturned.

Taking these factors into account there can be little surprise that over twice as many referrals have occurred in the last six years as in the previous 73. It is also not surprising, when one considers the simple fact that the Scottish Commission operates with the lesser test of “there may have been” a miscarriage, as opposed to the appeal court test of “there has been” a miscarriage of justice, that only about 50% of the cases referred by the Commission to the High Court are successful.

The English experience

In a recent article by Richard Nobles and David Schiff, “The Criminal Cases Review Commission: Establishing a working relationship with the Court of Appeal” [2005] Crim LR 173 the authors identified and examined the sometimes strained relationship which exists between the English CCRC and the Court of Appeal, where, through a number of decisions, the court has been critical of the approach taken by the CCRC. The article noted that:

“...the task of establishing a workable relationship between the two bodies has had to take place though a dialogue between them arising mostly, although not exclusively, out of the process of referral... this dialogue reveals a process of accommodation, with the Court of Appeal adjusting to the presence of the CCRC, and asking, in turn, that the CCRC take notice of the difficulty that the CCRC creates for the court”.

Some of the difficulty mentioned may result from the fact that the CCRC in England considers part of its function to be that of identifying and publicising areas within the appeal process which, in its view, are outdated, anachronistic or simply too conservative, with a view to considering law reform to change these matters. As any development or evolution of the appeal process had previously been at the instance of the Court of Appeal itself, it is not difficult to see where the tension arises.

Constructive accommodation

In Scotland, the relationship between the SCCRC and the appeal court has, I would suggest, been of a more constructive partnership. In a number of cases the appeal court has been happy to refer directly to the statement of reasons issued by the Commission on referral and, it could be said, has gone out of its way to welcome, and complement, the work of the Commission, even on occasions where the court has refused the subsequent appeal. (See Campbell v HMA 2004 SCCR 220 per the Lord Justice Clerk at 236: “The Commission is to be commended for the thoroughness of its investigation and for the excellence of its analysis of the issues” – appeal successful; Gray v HMA 2005 SCCR 106 per the Lord Justice Clerk at 108: “The Commission has investigated this case thoroughly and in my view it was right to refer it to the court” – appeal unsuccessful; Kidd v HMA 2005 SCCR 200 – appeal successful.)

Perhaps this is simply a demonstration of the honeymoon period that any new statutory body would hope to have in settling into its function. I prefer the view, however, that, in learning from the earlier frictions created in England, the relationship in Scotland has demonstrated a clear wish on the part of the appeal court to accommodate the changes necessarily enforced upon it by the creation of a Scottish Commission. Likewise, the Commission eagerly awaits each and every decision issued by the High Court, in both successful and unsuccessful referrals, to see what guidance or assistance, if any, the court is able to give it, in the ongoing interpretation of the “miscarriage of justice” test.

Differences will continue

There appears to be little doubt that the present criteria that are applied by the Commission and the High Court in determining the phrase “miscarriage of justice”, whilst similar, are not identical. Such a divergence or tension may be considered as healthy in a criminal justice system which now accommodates both an adversarial and an inquisitorial arm. In fact, some may argue that one of the functions of the Commission is to continue to challenge the more conservative or restricted interpretation of the phrase which section 106 would appear to place on the appeal court.

The contrary argument is that the Commission cannot exist in a vacuum in interpreting this phrase, as to do so could result in referrals being made which, given the restrictions presently placed upon any interpretation by the court, would have little or no chance of success. Such a situation would be highly unsatisfactory, as it would raise false hopes and expectation amongst applicants, and cause confusion and uncertainty within the legal profession. In doing so, the Commission would be failing in one of its other important goals, which is to enhance public confidence in the criminal justice system in Scotland.

Whatever view is held, there appears little doubt that the creation of the Scottish Criminal Cases Review Commission is now considered to be a very useful addition to the criminal justice system, in addressing the issue of potential miscarriages, and that the difference in approach in interpreting “miscarriage of justice”, which presently exists between the Commission and the High Court, is likely to continue, provided both bodies consider that this process and methodology continues to offer a suitable model for successfully dealing with those cases which arise in Scotland.

Whilst the members and staff of the Commission and I have had many long and interesting debates on the issues raised above, I should indicate that the views expressed in this article are my own, and should not be taken to represent the views of the Commission.

Gerard Sinclair, formerly a solicitor in private practice, is Chief Executive of the Scottish Criminal Cases Review Commission

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