Graham Gordon For Judicial Review Of A Decision Of The Scottish Criminal Cases Review
| Jurisdiction | Scotland |
| Judge | Lord Pentland |
| Neutral Citation | [2013] CSOH 13 |
| Court | Court of Session |
| Docket Number | P957/12 |
| Date | 24 January 2013 |
| Published date | 24 January 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 13 | |
| P957/12 | OPINION OF LORD PENTLAND in the Petition of GRAHAM GORDON Petitioner; for Judicial Review of a decision of the Scottish Criminal Cases Review Commission not to refer his case to the High Court in terms of section 194B of the Criminal Procedure (Scotland) Act 1995 ________________ |
Petitioner: K Stewart Q.C.; Drummond Miller LLP
Respondents: Moynihan Q.C.; Scottish Criminal Cases Review Commission
24 January 2013
Introduction
[1] This petition for judicial review arises from the latest in a series of unsuccessful attempts by Mr Gordon to overturn his conviction for rape in 2002. The case came before me at a first hearing. The respondents, the Scottish Criminal Cases Review Commission, had lodged answers to the petition. The petition seeks reduction of the respondents' decision, communicated to the petitioner in statements of reasons issued in January and April 2012, not to refer his case to the High Court of Justiciary. The petitioner also seeks an order requiring the respondents to reconsider their decision. At the first hearing, senior counsel for the petitioner moved me to grant decree of reduction and an order for reconsideration. Senior counsel for the respondents moved me to refuse the petition.
The petitioner's conviction and subsequent procedure
[2] The prolonged history of the criminal proceedings against the petitioner and the involvement of the respondents in the case may be summarised as follows.
[3] Following a trial at Stonehaven High Court between 30 August and 5 September 2002, the petitioner was convicted by majority verdict of an offence of rape committed on 12 August 2001 in Aberdeen. It is important to note that the petitioner did not give evidence at the trial. Instead, he relied (as he was entitled to do) on the contents of a police interview, in which he admitted having had sexual intercourse with the complainer, but maintained that it had been consensual. The petitioner had attended at Bucksburn police station on a voluntary basis, but it is clear that he was interviewed under caution and in the capacity of a suspect for the offence of rape. In accordance with the law as it was then understood, the petitioner was not given the opportunity to take legal advice before being interviewed. Nor was he accompanied by a lawyer during the interview; again this was in line with normal practice at the time. On 26 September 2002 the petitioner was sentenced to 5 years' imprisonment in respect of the rape conviction.
[4] The petitioner appealed against his conviction on a number of grounds: defective representation; oppression; prejudicial pre-trial publicity; lack of corroboration in relation to mens rea; and misdirection by the trial judge. On 29 September 2004 the appeal against conviction was refused.
[5] On 14 March 2005 the petitioner applied to the respondents for review of his conviction on various grounds, namely prejudicial pre-trial publicity; the effect of the change in the law of rape between the incident and the trial; sufficiency of evidence; misdirection on the law of rape; failure by the Crown to disclose that the complainer's clothing had been seized by the police; police misconduct; failures by the police in relation to the investigation of the incident; the gathering of evidence; and the disclosure of evidence. On 2 April 2007 the respondents decided to refer the case to the High Court because they believed that a miscarriage of justice might have occurred as a result of the "cumulative effect of Grampian Police enquiry errors and other irregularities". The reference was also made on the grounds that the Crown had failed to disclose to the defence a statement from the complainer and because the respondents believed that they had uncovered certain fresh evidence. On 15 June 2007 a note of appeal was lodged, based upon the respondents' statement of reasons. Over the following two years a number of procedural hearings took place before the criminal appeal court. In the course of this period the petitioner dispensed with the services of two sets of solicitors and counsel. The extensive procedural history of the appeal is explained in detail in an opinion by Lord Carloway dated 24 April 2009 (2009 SCCR 570). On that date, the court appointed a hearing on the three grounds of appeal reflecting the grounds of the respondents' referral.
[6] The petitioner presented the appeal himself at a hearing between 26 and 28 January 2010, his legal representatives having withdrawn from acting for him shortly before the hearing. On 6 May 2010 the appeal was refused (2010 SCCR 589). On 28 May 2010 the petitioner's motion for leave to appeal to the Supreme Court was refused.
[7] On 7 May 2011 the petitioner applied to the respondents for a second review of his conviction on the basis of a statement provided by a forensic scientist, Professor A D Barclay, dated 21 January 2010. The statement expressed the opinion that there was evidence that a pair of trousers seized by the police were not those worn by the complainer at the material time. The respondents accepted the case for review on that sole ground. In August 2010 the petitioner provided the respondents with an opinion of counsel referring to the pending decision in Cadder and asking that this point be included in his application. On 29 October 2010, three days after the Supreme Court's decision in the case of Cadder was issued (Cadder v HMA 2011 UKSC 13), the petitioner wrote to the respondents confirming that he wished them to consider Cadder "taking cognisance of the cumulative effect which may have affected my right to a fair trial as a whole, including the way I was briefed by police prior to the interview and this material being oppressively used by the advocate depute in trial and in summing up to the jury." In November 2010 and again in August 2011 the petitioner expanded on his submissions in relation to Cadder. The respondents decided to defer consideration of the petitioner's arguments insofar as based on Cadder until the outcome was known of several pending decisions of the Supreme Court on the further implications of the decision.
[8] On 25 February 2011, following a full review of the issues arising from Professor Barclay's statement, the respondents decided not to refer the petitioner's case to the High Court. They issued a statement of reasons in relation to that aspect of matters. In response the petitioner made further representations to the respondents. Then on 30 September 2011 the respondents issued a supplementary statement of reasons finally deciding not to refer the petitioner's case to the High Court on the issues relating to Professor Barclay's statement. That left for consideration by the respondents the petitioner's contention that his case should be reconsidered in the light of the decision of the Supreme Court in Cadder.
[9] In a statement of reasons issued in January 2012, the respondents concluded, having fully considered the Cadder point, that although a miscarriage of justice may have occurred in respect of the petitioner's conviction, it was not in the interests of justice to refer his case again to the High Court. The respondents confirmed this decision in a supplementary statement of reasons they issued in April 2012. On 10 September 2012 the petitioner lodged the present petition.
The respondents' reasoning on the interests of justice test
[10] At the first hearing the parties' submissions focussed on the reasoning expressed in the respondents' statement of reasons of January 2012 and in the supplementary statement of reasons issued in April that year. It will, therefore, assist if I now refer to the pertinent parts of those documents.
[11] In the January 2012 statement the respondents accepted that there may have been a miscarriage of justice at the petitioner's trial because there had been insufficient evidence without the admission made in his police interview that he had had sexual intercourse with the complainer. That admission constituted the only source of evidence corroborating the complainer's account that she had been vaginally penetrated by the petitioner's penis. There was no other evidence, apart from the admission at interview, capable of providing support for or confirmation of the complainer's evidence that sexual intercourse had occurred. There was, for example, no DNA or other scientific evidence. The respondents proceeded on the basis that if Cadder had applied at the time of the petitioner's interview, evidence as to what the petitioner said during the interview would have been inadmissible at the trial. That was not the end of the matter, however. Before the respondents may refer a case to the High Court they must believe not only that a miscarriage of justice may have occurred, but also that it is in the interests of justice that a reference be made. The test for the respondents is a two-fold one and, as such, they must decline to make a reference to the High Court, even where there may have been a miscarriage of justice, if they believe that a reference would not be in the interests of justice (M v SCCRC 2006 SCCR 433, at paragraph 54). In Cochrane v HMA 2006 SCCR 213 at paragraph 9 the High Court suggested that the clear intention of Parliament was that, in relation to redress by way of the respondents' cumulative test, a wider issue than the possibility of a miscarriage of justice should be addressed. In considering the interests of justice, the respondents have a broad discretion which they may exercise after they have had regard to all of the factors which they consider are relevant to the justice of the situation (Raza v SCCRC 2007 SCCR 404 at paragraph 7).
[12] One of the matters to which the respondents must have regard in addressing the interests of justice is the need for finality and certainty in the determination of criminal proceedings (section 194C(2) of the Criminal Procedure...
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