Author: Connor MacIntyre
In this essay it will be argued that the Scottish Criminal Cases Review Commission (“the Commission”) plays a largely valuable role within the Scottish criminal justice system, and represents a welcome improvement upon the system it replaced. Initially, a brief outline of the Commission’s background and the legal framework within which it operates will be provided. Before the value of the Commission’s role within the criminal justice system can be assessed, however, the nature and desirability of its role must be established. It will then be illustrated how – despite one notable failing – the Commission adequately fulfils this role, thus demonstrating the Commission’s value. Finally, the Commission will be compared with the previous system of case review, conducted under the Secretary of State for Scotland, to highlight the success of the Commission in improving upon its predecessor.
Background to the Commission
The Commission was established in 1999 on the recommendation of the Sutherland Committee. Formerly, the Secretary of State for Scotland considered applications by convicted persons to have their convictions or sentences reviewed. This responsibility has now been assumed by the Commission. The Commission is unable to quash convictions or adjust sentences; this power is reserved to the High Court of Justiciary, sitting as an appeal court (“the Appeal Court”). However, the Commission is authorised to refer cases to the Appeal Court for determination where it concludes that: (a) a miscarriage of justice may have occurred; and (b) it is in the interests of justice that a reference should be made. The Commission has the power to refer both solemn and summary cases.
What should the Commission’s role be?
It has been advocated that the Commission was intended to function principally as a sifting mechanism for the Appeal Court in cases where new evidence has surfaced. In support of this position, Ferguson claims that Parliament envisaged the Commission primarily concerning itself with the investigation and assessment of new evidence. However, it is submitted that Ferguson’s interpretation of the Sutherland Report is erroneous. The paragraphs on which Ferguson relies in no way suggest such a limited remit. On the contrary, the Sutherland Report suggests the grounds and criteria for referral should be “broad and flexible”. The “miscarriage of justice” test is indeed intended to incorporate a wide range of appeal grounds, creating the potential for a greater number of wrongful convictions and sentencing errors to be remedied. Moreover, the Commission is not greatly constrained by the case submitted to it and enjoys strong investigative powers: when determining whether a case should be referred, the Commission can look beyond the issues raised by the applicant and conduct an independent inquiry. The Commission is empowered to make referrals on grounds not indicated by an applicant.  Additionally, Ferguson overlooks the Commission’s capacity to refer sentences. It is therefore contended that the Commission was not designed to be merely a gatekeeper for the Appeal Court in fresh evidence cases. Rather, the Commission should seek to occupy a broader role, by utilising its powers to refer cases on a range of grounds.
Although not restricted by subject matter, the Commission is somewhat limited by its relationship with the Appeal Court and the legal framework within which it operates. This constraint is manifest in the Commission’s construing of miscarriages of justice in the narrow, legal, sense. This approach has been interpreted by some commentators as complete deference to the Appeal Court. Duff presents three core arguments to rebuff this assertion. Firstly, he contends that the Commission can use their power of referral to influence the development of the law. This is possible by referring cases which present the Appeal Court with the opportunity to expand the grounds of appeal. Secondly, Duff claims the Commission can exert political pressure on the Appeal Court via its power to re-refer unsuccessful cases. Finally, he states that the availability of the Royal Prerogative of Mercy enables the Commission to advise applicants to circumvent the Appeal Court entirely. These arguments succeed in demonstrating that at least a degree of autonomy is enjoyed from the Appeal Court, which is clearly desirable from a public confidence perspective. However, Duff’s submissions fall short of establishing the “considerable degree of independence” he asserts, as the extent of the powers highlighted are vulnerable to limitation. Concerning the first argument, the Commission itself has shown pessimism towards the outcome of such an attempt to expand the law. Furthermore, it is arguable that the application of political pressure upon the Appeal Court would be fundamentally inappropriate practice to adopt. Lastly, it was envisaged that the Royal Prerogative would only be used sparingly. Therefore, these aspects of the Commission’s independence constitute the exception, not the rule.
That is not to say that occupying a position of deference is an undesirable role for the Commission to adopt. Indeed, when referring cases it is both appropriate and logical for the Commission to apply legal reasoning. It is acknowledged that there is no statutory requirement which compels the Commission to take account of the Appeal Court’s likely treatment of a referral. In reality, however, the “miscarriage of justice” element of the Commission’s statutory test for referral is a reference to the sole ground of appeal in Scotland, thus rendering the test a legal one. This position was affirmed by Lord Emslie in the case of M (Petitioner), where he emphasised that the “correct legal test” should be applied by the Commission when deciding whether to refer a case. In practical terms, tailoring referrals to match the approach of the Appeal Court must be considered prudent in enhancing prospect of success; a case presented to the Appeal Court in lay terms is unlikely to prove persuasive.
Nonetheless, it has been reasoned that it is proper for the Commission reject a case otherwise containing a “legal” miscarriage of justice, purely on the basis of factual guilt. Such a decision can proposedly be justified under the discretion enjoyed by the Commission pursuant to the second limb of the statutory test for referral. Ostensibly, the denying of referrals for the factually guilty seems reasonable. However, this attitude risks usurping the trial court’s position as determiner of factual guilt, and threatens to undermine the Appeal Court’s interest in protecting due process. The approach is also problematic as it would result in the legal system operating inconsistently at different levels, thereby eroding legal certainty in disregard of the rule of law. Moreover, the Commission cannot be certain of factual guilt. Factors which may legitimately weigh against referral do of course exist, but factual guilt should not be considered one of them. It is therefore proposed that the interests of justice are not served by such practice, but rather the Commission should seek to protect the interests of the factually and legally innocent mutually.
Does the Commission fulfil this role?
To be considered valuable in practice, it is contended that the Commission must realise its role as established above.
Firstly, it is clear that the Commission has successfully engaged with a broader range of issues than fresh evidence only. The emergence of new evidence is indeed the Commission’s most commonly used ground of referral, constituting half of all referred convictions. However, this was not always the sole ground of referral and the Commission has in fact referred conviction cases on a total of 41 different appeal grounds. The Commission has also engaged well with its role in sentences correction. Sentence applications accounted for 33 of the 75 referrals made between 1999 and 2008, and thus the Commission has contributed significantly to the rectification of first instance irregularities. Further, the Commission has utilised its power to refer cases on independently established grounds on 11 occasions during its first 10 years of existence. In seven of those cases, the sole grounds for referral were established by the Commission alone, meaning that the Commission’s investigations were directly responsible for the referrals. Significantly, convictions have been quashed where the sole grounds of referral and appeal were advanced by the Commission. Therefore, without the proactive work of the Commission, some deserving cases would not have been referred and wrongful convictions would still stand.
Not only have the Commission’s investigatory powers been used extensively, but the quality of the investigations themselves has received praise from the legal community. When interviewed, legal professionals were unanimous in their approval of Commission investigations, labelling them as “impressive”. The thorough nature of the investigations was also commended, with lawyers highlighting the Commission’s dedication to finding documents and witnesses relevant to the trial, even where they did not agree with the Commission’s final decision on a case.
The scope of the Commission’s referrals and the depth of their investigations therefore lead to the conclusion that the Commission is functioning not merely a sifting mechanism for fresh evidence cases but, as intended, is valuably fulfilling a broader remit.
Turning to whether the Commission has showed due deference to the Appeal Court, in terms of referrals, it appears that the Commission has indeed adopted a legal interpretation of the “miscarriage of justice” test. The high success rate of Commission referrals reflects this approach, as well as evidencing the necessity of the Commission’s existence. Only in the case of Harper v HMA has the Commission referred a case on a ground of appeal not recognised in Scotland, that of “lurking doubt”. Unsurprisingly, the case was rejected by the Appeal Court. However, it is submitted that this does not represent a stark breach of the Commission’s mandate. The referral did not deny the Appeal Court the opportunity to determine the case, nor was the appeal entirely reliant on this ground, with the applicant also relying upon grounds of fresh evidence.
Contrastingly, the Commission does appear to be actively rejecting cases where it believes the applicant to be factually guilty. In Cochrane v HMA, Cochrane’s indictment was fundamentally flawed in that it did not constitute a recognised crime. As such, his conviction amounted to an unequivocal miscarriage of justice. However, due to its certainty of Cochrane’s complicity in the alleged offence, the Commission refused refer the case. Worryingly, this approach is not isolated to Cochrane but appears to reflect Commission policy. It therefore appears that, in this regard, the Commission is reneging on its responsibility to assist the legally innocent. As suggested above, this practice is damaging to the integrity of the criminal justice system.
Is the Commission preferable to the previous scheme?
The principal advantage held by the Commission over the previous system, under the Secretary of State for Scotland, is the Commission’s independence. Being far less likely to command public confidence, the previous system’s connection to government constituted a “fundamental weakness”. It could be argued that ministerial involvement in case review guarantees greater accountability through parliamentary scrutiny. Yet this potential benefit is outweighed by the requirements imposed by the separation of powers principle; it is constitutionally improper for the function of criminal case review to be conducted by a governmental department. Consequently, the Commission’s autonomy from government is necessary.
Additionally, the Scottish Office’s general effectiveness as a review body was substantially inferior to that of the Commission. The government body had an infamously slow work rate, exhibited a reactive approach to applications, and displayed a distinct lack of investigatory capability. Summary cases were excluded from the process, and public campaigns were usually required to motivate the Secretary of State to refer a case. By contrast, the Commission is empowered to deal with both solemn and summary cases. This is considered important as even less serious cases attract significant stigma and can detrimentally impact the life of a convicted person. The proactive attitude and exhaustive investigatory powers of the Commission also presents a stark contrast to the previous system. Therefore, it is uncontroversial to submit that the Commission is undoubtedly a valuable improvement upon the previous system.
The suggestion that the Commission should simply act as a gatekeeper for the Appeal Court in cases of fresh evidence amounts to a drastic undervaluation of the Commission’s potential. In order to be effective, the role of the Commission should be far broader than this. The Commission appears successful in this regard, through its use of wide-ranging grounds of referral and its commendable investigations. In particular, the Commission’s success rate and in particular the existence of quashed convictions based solely on grounds raised by the Commission highlights its necessity and value within the criminal justice system.
Further, it is unfair to claim that the Commission occupies a position entirely subordinate to that of the Appeal Court. However, its autonomy from the judiciary should not be overstated, as the Commission is required to show deference to the Appeal Court. This element of deference should be welcomed by the Commission, however, as the extent to which the Commission follows the reasoning of the Appeal Court has a direct influence upon the success rate of referrals experienced. As successful referrals result in the quashing of wrongful convictions and the correction of sentencing errors, such deference is necessary to the fulfilment of the Commission’s role. The Commission does indeed seem to appreciate that “miscarriage of justice” is a legal test, which aids its achievement of favourable outcomes.
Contrastingly, the Commission appears to be shirking its responsibilities where it decides against referring a case on its belief of factual guilt alone. Such an approach signifies a serious misuse of the discretion conferred upon the Commission and risks undermining the role of the courts to the detriment of the criminal justice system. It is recommended that the Commission makes a conscious effort to discontinue this practice.
In any case, due to its broader scope and independence from government, it is clear that the Commission represents a marked improvement over the previous system of review under the Secretary of State for Scotland.
Therefore, aside from one significant flaw in its practice, the Commission is clearly contributing positively to the criminal justice system in Scotland. Where the Commission is fulfilling its role, it is doing so with great success. The Commission has consequently proved itself to be a valuable and respected feature of the Scottish criminal justice system.
 Sutherland Committee, Criminal Appeals and Alleged Miscarriages of Justice: Report by the Committee appointed by the Secretary of State for Scotland and the Lord Advocate, CM. 3245 (1996), para 5.50
 As was envisaged in the deliberations preceding the establishment of the Commission: P. Duff, “Criminal Cases Review Commissions and ‘Deference’ to the Courts: the evaluation of Evidence and Evidentiary Rules”  Crim. L.R. 341, 342
 J. Chalmers & F. Leverick, “the Scottish Criminal Cases Review Commission and its referrals to the appeal court: the first ten years”  Crim. LR. 608, 609
 Criminal Procedure (Scotland) Act 1995, s 194C
 Solemn: s.194B of the 1995 Act; Summary: s.194E of the 1995 Act
 P.W. Ferguson, “Letter: Admissibility, Criminal Evidence, Scottish Criminal Cases Review Commission”  Crim L.R. 761
 Ibid, Crim L.R. 761-762
 Sutherland Committee, Criminal Appeals and Alleged Miscarriages of Justice, CM. 3245 (1996), paras 5.11 & 5.50-53
 Ibid, para 5.63
 F. Leverick et al., “Post-Conviction Review: Questions of Innocence, Independence and Necessity” , Stetson Law Review [Vol. 47], 11
 F. Leverick et al., “Part of the Establishment? A Decade of the Scottish Criminal Cases Review Commission” (2010) S.L.T. 147
 Duff, “Criminal Cases Review Commissions”  Crim. L.R. 341, 342
 Scottish Criminal Cases Review Commission v HM Advocate 2001 J.C. 36, p 40, at  per Lord Clarke
 Chalmers & Leverick, “the Scottish Criminal Cases Review Commission”  Crim. LR. 608, 616
 Ibid, 621
 Ibid, 610
 F. Leverick, and J. Chalmers, “Causes of wrongful conviction” In: J. Chalmers et al., (eds.) “Post-Corroboration Safeguards Review Report of the Academic Expert Group” (2004), The Scottish Government, Edinburgh, para 4.2
 R. Nobles and D. Schiff, “Miscarriages of Justice: A Systems Approach” (1995) 58 MLR 299, 315; S. Roberts and L. Weathered, “Assisting the Factually Innocent: The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review Commission” (2009) 29 OJLS 43, 58
 P. Duff, “Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner” (2009) 72 M.L.R. 693, 719-722
 Ibid, 694
 Ibid, 695
 Ibid, 716; discussed in greater depth below
 Ferguson, “Letter”  Crim L.R. 761, 762
 Sutherland Committee, Criminal Appeals and Alleged Miscarriages of Justice, CM. 3245 (1996), para 6.5
 Roberts and Weathered, “Assisting the Factually Innocent” (2009) 29 OJLS 43, 16
 Chalmers & Leverick, “the Scottish Criminal Cases Review”  Crim. LR. 608, 609-610
 Ibid, 610
  CSOH 112; 2006 SLT 907 at 
 Argued by Nobles and Schiff, “Miscarriages of Justice” (1995) 58 MLR 299, 315; and conceded by Duff, “Straddling Two Worlds” (2009) 72 M.L.R. 693, 714-718
 Duff, “Straddling Two Worlds” (2009) 72 M.L.R. 693, 706-708; Duff, “Criminal Cases Review Commissions  Crim. L.R. 341, 349-350
 Leverick, and Chalmers, “Causes of wrongful conviction” In: Chalmers et al., (eds.) “Post-Corroboration Safeguards” (2004), The Scottish Government, Edinburgh, para 4.2
 Duff, “Straddling Two Worlds” (2009) 72 M.L.R. 693, 721
 Such as the death of an applicant: L. Griffin, “International Perspectives on Correcting Wrongful Convictions: The Scottish Criminal Cases Review Commission” (2013), 21 Wm. & Mary Bill Rts. J. 1153, 1166
 Chalmers & Leverick, “the Scottish Criminal Cases Review Commission”  Crim. LR. 608, 613
 Leverick et al., “Part of the Establishment?” (2010) S.L.T. 147, 149
 Ibid, 151
 Chalmers & Leverick, “the Scottish Criminal Cases Review”  Crim. LR. 608, 621
 Ibid, 619
 J. Chalmers et al, Scottish Criminal Cases Review Commission 10th Anniversary Research: Final Report (2009), 34, https://irp-cdn.multiscreensite.com/8f56052e/files/uploaded/sccrc-research-report-referrals-2009.pdf
 Two such cases existed prior to 2008: Chalmers & Leverick, “the Scottish Criminal Cases Review”  Crim. LR. 608, 619
 Leverick et al., “Part of the Establishment?” (2010) S.L.T. 147, 150
 Leverick et al., “Part of the Establishment?” (2010) S.L.T. 147, 151
 At 74% for all referrals: Chalmers et al, Scottish Criminal Cases Review Commission 10th Anniversary Research (2009), 33, https://irp-cdn.multiscreensite.com/8f56052e/files/uploaded/sccrc-research-report-referrals-2009.pdf
 Leverick et al., “Part of the Establishment?” (2010) S.L.T. 147, 151
 Ibid, 150
 2005 S.C.C.R. 245
 Leverick et al., “Part of the Establishment?” (2010) S.L.T. 147, 148
 Chalmers & Leverick, “the Scottish Criminal Cases Review Commission”  Crim. LR. 608, 619
 2002 SCCR 1051; 2002 SLT 1424
 Duff, “Straddling Two Worlds” (2009) 72 M.L.R. 693, 706-707
 SCCRC, Annual Report and Accounts (2005-2006), (Glasgow: SCCRC, 2006), 17
 Ferguson, “Letter”  Crim L.R. 761, 762
 Sutherland Committee, Criminal Appeals and Alleged Miscarriages of Justice, CM. 3245 (1996), para 5.51
 Ibid, para 5.52
 Ibid, para 5.27
 Ibid, para 5.24; Although summary cases did have some remedy either through a Bill of Suspension (under s.453A of the Criminal Procedure (Scotland) Act 1975) or by way of an application by minute by the Crown to set aside the conviction (pursuant to s.453(1)(b) of the 1975 Act)
 John Weeden, “The Criminal Cases Review Commission (CCRC) of England, Wales, and Northern Ireland” (2012), 80 U. Cin. L. Rev. 1415, 1417
 Sutherland Committee, Criminal Appeals and Alleged Miscarriages of Justice, CM. 3245 (1996), para 5.22
 Roberts & Weathered, “Assisting the Factually Innocent” (2009), Oxford Journal of Legal Studies, Volume 29, Issue 1, 43–70, 67
 Leverick et al., “Post-Conviction Review” , Stetson Law Review [Vol. 47], 10
 Ibid, 29
 As outlined above