Written evidence from the Scottish Criminal Cases Review Commission (CCR 43)

 

Introduction

  1. The Scottish Criminal Cases Review Commission (SCCRC) is grateful for the opportunity to respond to the call by the select committee for written evidence on effectiveness of the work of the Criminal Cases Review Commission.

 

  1. In answering the specific questions raised the SCCRC seeks to draw on both its own experiences and on its ongoing relationship with both the Board members and staff of the CCRC.

 

Question 1: Whether the CCRC has fulfilled the expectations and remit which accompanied its establishment following the 1993 report of the Royal Commission on Criminal Justice

 

  1. It is clear from a review of the 1993 Report that the first, and perhaps the most important and fundamental principle underlying the establishment of the CCRC was its independence from both Government and from the Court of Appeal.  The role of the Home Office in England, Wales and Northern Ireland (and the Scottish Office in Scotland) in reviewing cases for appeal was clearly incompatible with the separation of powers between the courts and the executive. The continuing independence of the CCRC from all aspects of government is vital in order to secure the confidence of applicants and the wider public in general. It is clear from only a cursory review of the numerous written submissions received to date that there is a widely held view that the CCRC has successfully fulfilled the expectations to both guard and retain its independence in its review of its casework, although the SCCRC is aware of the concerns that have recently been expressed about attempts to “centralise” the work of NDPBs in England. An example of this more “centralised” approach has been the Government`s website rationalisation programme which saw the CCRC own website being closed and a corporate branded website being the replacement. The SCCRC considered this to be an unnecessary and unwelcome departure as it was likely to lead to confusion and a loss of confidence within both stakeholders and members of the general public regarding the independence of the CCRC. Suffice to say that, in Scotland, the SCCRC, in using the CCRC experience as a “bad practice” example, were able to negotiate and agree with the Scottish Government that it should continue to run and operate its own website, separate and distinct from a similar centralised government website. The SCCRC is pleased to note that the CCRC has recently been allowed to again host an independent website. It is hoped that the 2 year hiatus which has ensued has not affected the public confidence in the CCRC`s independence.

 

  1. A further remit of the Royal Commission was to empower the CCRC, like its counterpart in Scotland, to carry out its own investigations. One assumes that the main reason for this was to not only demonstrate the independence of the new body but also to reinforce the notion that future reviews would be carried out more efficiently and effectively than had occurred in the past, under the previous discredited process., In Scotland, prior to the SCCRC coming into existence in 1999, the Secretary of State for Scotland decided whether cases should be referred back to the court. That had been the procedure from the creation of the Appeal Court in Scotland in 1926 until 1999. In that time, the Scottish Office received approximately 30 applications per annum to review, During the 73 year period from 1926 to 1999 only 20 cases were remitted to the High Court for a fresh appeal, with only a handful being successful. In the last 15 years, from April 1999 to March 2014 the SCCRC has reviewed over 1800 cases (and average of 120 per annum) and referred 122 cases to the High Court. Of the 104 cases which had been considered during that 15 year period 70 resulted in a successful appeal. The difference under the two regimes is stark. The SCCRC notes that, taking account of the difference in demographics and size, the CCRC has achieved similar figures since its inception in 1997, having reviewed over 15,000 cases and referred more than 540 for appeal. Whilst it is not aware of the statistics from the Home Office prior to the creation of the CCRC it would hazard a guess that the introduction of the CCRC has produced similar stark increases south of the border.

 

  1. The CCRC’s work is constrained however by the restriction contained within section 17 of the Criminal Appeal Act 1995 which relates only to securing material required for its investigations from public bodies. Under section 194I. of the Criminal Procedure (Scotland) Act 1995 the SCCRC has a wide ranging power to seek to recover documents and materials from both public and private bodies and individuals. This is seen as a key investigative tool by the SCCRC. It is known that there is a wish for a similar power to be granted to the CCRC but that, for a number of reasons this has not yet been achieved. The SCCRC believes that such an extension to the CCRC`s powers would greatly enhance their efficiency and effectiveness and become a key investigative tool.


Question 2A: Whether the CCRC has appropriate and sufficient statutory powers

  1. For the reasons outlined in paragraph 5 above, the SCCRC continues to support the introduction of the proposed power for the CCRC, with judicial oversight, to access materials held by non-public bodies. 

 

Question 2B:  Whether the CCRC has appropriate and sufficient resources

  1. It is facile to say that any public body would welcome additional funding and resources. It is equally facile to acknowledge that the knock-on effects of the financial collapse in 2007 have greatly challenged the ability of central Government to fund public bodies and remain a difficult issue. Having said that, the SCCRC has been aware, over a number of years, of serious concerns about the reduction in budget within the CCRC and the detrimental effect that has had on its ability to carry out its role efficiently and effectively. The financial backdrop is clearly set out in the CCRC`s own written evidence, previously submitted to the select committee, and need not been repeated here. When one considers however both the volume and detail of the cases which the CCRC has had to review, along with the more recent increase in their workload caused by modern developments such as the directions for investigations by the Court of Appeal and the increased volume of immigration cases it is easy to see why, with a reduced budget and subsequent reduced staffing complement, it becomes very difficult to make any significant reduction in the backlog of cases to be reviewed and the time taken on case reviews.

 

Question 3:  Whether the real possibility test is appropriate and has been applied appropriately

  1. SCCRC has a separate statutory test which has been outlined and commented upon in other submissions.  Under s194C of the Criminal Procedure (Scotland) Act 1995 the SCCRC may refer cases when it believes “that (a) a miscarriage of justice may have occurred and (b) that it is in the interests of justice that a reference should be made”. For the CCRC, under s13(1) of the Criminal Appeal Act 1995 S13(1), a reference shall not be made unless…the Commission consider that there is a real possibility that a conviction/sentence would not be upheld. Although the statutory tests applied are, prima facie, different this is entirely understandable as the respective Committees that recommended the setting up of  both organisations, (the Runciman Committee in England and the Sutherland Committee in Scotland), deliberately designed  appropriate criteria to reflect the tests applied in appeals respectively by the High Courts in England and Scotland.  Whilst the SCCRC is aware of the ongoing debate on the matter, it remains to be persuaded with the view of some commentators that the CCRC`s test is somehow less flexible or liberal than the test applied by the SCCRC. Put simply, the issue of whether there “may” have been a miscarriage of justice in Scotland is interpreted as to whether the possibility exists. It seems trite to say that such a possibility should be a “real” possibility and not some remote or fanciful one if a referral is to be justified. The actual wording, therefore, of the respective tests should not, in the view of the SCCRC, create any barrier to the referral of a case where either organisation considers it appropriate to do so. Any difference which might arise in practice may result from how respective generations of the two Commissions choose to interpret and apply the statutory tests, taking account of the relevant guidance provided by the respective appeal courts.  It is worth noting however that, throughout the existence of the respective organisations, the overall 'success' rates of referrals from both the CCRC and the SCCRC have remained broadly similar at around 70%, which might suggest that, irrespective of the different statutory tests; the different methodology of review applied and the different generations of members of the respective organisations there remains a consistent view as to when a miscarriage of justice may have arisen which merits a further consideration by the High Court of Appeal.

 

Question 4:  Whether any changes are required to the CCRC’s role, work or remit

  1. In the view of the SCCRC there are presently no changes required to the CCRC’s role, work and remit in relation to criminal convictions.    It is supportive of the CCRC retaining its power to investigate and refer summary convictions and its power to refer sentencing cases. 

 

              December 2014

 

 

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