Absurd Asymmetry – a Comment on R v Cottrell and Fletcher1 and BM, KK and DP (Petitioners) v Scottish Criminal Cases Review Commission2
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00701.x |
| Author | Richard Nobles,David Schiff |
| Published date | 01 May 2008 |
| Date | 01 May 2008 |
CASES
Absurd Asymmetry ^ a Comment on RvCottrell and
Fletcher
1
and BM, KK and DP (Petitioners) vScottish Criminal
Cases Review Commission
2
Richard Nobles and David Schi¡
n
This note examines two cases in which English and Scottish courts have insisted that the English
and Scottish Criminal Cases Review Commissions adopt the same de¢nition and approach as
them to alleged ‘miscarriages of justice’ in order to reducethe number of potential referrals and
increase ¢nality,and to reduce the challenge posed by these Commissions to the courts’authority
in the legal sphere. The authors consider whether the courts’ approach is either necessary or
appropri ate.
What is the role of the English and Scottish Criminal Cases Review Commis-
sions in referring possible miscarriages of justice to the criminal appeal courts of
their respective jurisdictions? Professor Zellick, the Chairman of the English
Criminal Cases Review Commission (CCRC), in giving evidence to the Home
A¡airs Select Committee, has suggested that the test which his organisation
should apply when deciding whe ther to refer:
. . . has to be one that articulates with the test that the Court of Appeal itself has to
apply.If youbreak that li nk and youestablish an asymmetry between the two tests,
you will be creating an absurd situation. It would create tension between the
Court of Appeal and the Commission, it would raise expectations, it would cause
confusion, and it is di⁄cult to see what possible public interest could be served
by referring cases on a basis that had no relation to the test employed by the
court itself.
3
In expressingthis opinion, Zellick was envisaginga situation in whichthe CCRC
might bereferring cases which had nohope of success before the Courtof Appeal
(Criminal Division) (CACD). It must then have come as a surprise to have his
own words quoted back to him with approval in Cottrell, but as a reason why the
CCRC should not be able to refer cases that have a‘racing certainty’ of success
before the CACD. In this case note we discuss the general issue of whether, and
how, the approach of these Commissions might need to divert from that of their
n
Department of Law,Queen Mary, Universityof London.We would liketo thank our colleague David
Ormerodand PeterDu¡, Universityof Aberdeen, for theircomments on adraft of this case note.
1[2007]EWCA2016(Cottrell ).
2 [2006] CSOH 112; [2006]S.L.T.907 (BM).
3 Quoted in Cot trell at [55] fromThe Work of the Criminal Cases Review Commission, Oral andWritten
Evidence( June 2004, HC), HC 289 atQ28.
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
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