Kelly v Scottish Criminal Cases Review Commission
| Jurisdiction | Scotland |
| Judge | Lord Arthurson |
| Judgment Date | 19 October 2021 |
| Docket Number | No 8 |
| Court | Court of Session (Inner House) |
Second Division
Lord Arthurson
AJE v HM Advocate 2002 JC 215; 2002 SLT 715; 2002 SCCR 341
Anderson v HM Advocate 1996 JC 29; 1996 SLT 155; 1996 SCCR 114
Ditta v HM Advocate 2002 SCCR 891; 2002 GWD 28-963
Grant v HM Advocate [2006] HCJAC 42; 2006 JC 205; 2006 SLT 563; 2006 SCCR 365
Hughes v Dyer sub nom Hughes v Thomson [2010] HCJAC 33; 2010 JC 203; 2010 SCCR 492; 2010 SCL 937; 2010 GWD 16-309
Jeffrey v HM Advocate 2002 SLT 1407; 2002 SCCR 822
McBrearty v HM Advocate 2004 JC 122; 2004 SLT 917; 2004 SCCR 337
McEwan v HM Advocate [2010] HCJAC 5; 2010 JC 95; 2010 SCL 557; 2010 GWD 4-61
McIntosh v HM Advocate (No 1) 1997 SLT 1315; 1997 SCCR 389
Raza v Scottish Criminal Cases Review Commission [2007] CSOH 152; 2007 SCCR 403; 2007 GWD 27-469
SD v HM Advocate [2014] HCJAC 17; 2014 SCL 352; 2014 GWD 8-158
Sheridan v Scottish Criminal Cases Review Commission [2019] CSIH 23; 2019 SLT 586; 2019 SCCR 142
Urquhart v HM Advocate [2009] HCJAC 18; 2009 SCCR 339; 2009 SCL 683; 2009 GWD 9-150
Woodside v HM Advocate [2009] HCJAC 19; 2009 SLT 371; 2009 SCCR 350; 2009 SCL 578
Justiciary — Review — Scottish Criminal Cases Review Commission — Defective representation — Application to SCCRC for review of conviction on basis of alleged failure to call defence witnesses — Whether SCCRC erred in refusing to refer case to High Court
Paul Vincent Kelly was convicted, on 13 July 2016, of six charges of historic sexual assault and one charge of assault, and was sentenced in cumulo to a period of ten years' imprisonment. Leave to appeal against his conviction was refused. He applied to the Scottish Criminal Cases Review Commission seeking a review of his conviction, which, on 28 February 2020, the SCCRC decided not to refer to the High Court. He subsequently raised proceedings for judicial review of the decision of the SCCRC not to refer his case. On 18 May 2021, the Lord Ordinary (Arthurson) refused the petition ([2021] CSOH 51). The petitioner reclaimed.
In July 2016, the petitioner was convicted of six charges of historic sexual assault and one charge of assault against complainers who were all boys within his care at a residential school in Fife. Leave to appeal against his conviction was refused.
The petitioner applied to the Scottish Criminal Cases Review Commission (‘SCCRC’) for a review of his conviction on the basis of defective representation, the primary focus of which was the alleged failure of senior counsel for the defence to lead evidence from two witnesses, RD and SJ, at trial. RD denied that any abuse had taken place involving him and the complainer, JR. It was submitted that RD's evidence would have adversely affected the jury's assessment of the evidence of the complainer, JR. SJ and others could have assisted the defence by giving evidence of the petitioner's good character and of their having no awareness of any abuse taking place.
The trial judge, in his appeal report, considered that calling the witnesses would not have advanced the defence case, and that calling RD could have been dangerous. This reflected the views of senior counsel as to the risks inherent in calling the latter. The SCCRC concluded that these were decisions within a range of options reasonably open to counsel, that the matters raised by the petitioner did not meet the criteria for defective representation, and that the statutory grounds for making a reference had not been satisfied.
The petitioner conceded that the SCCRC had applied the correct test but argued that it had failed to attach sufficient weight to certain factors in the evidence, and that its assessment of that evidence had led it to a decision that no reasonable body could have reached. There had been no compelling reason not to call each of the witnesses at trial. The SCCRC ought to have concluded that deciding not to do so was beyond the scope of strategic or tactical decisions which might reasonably have been taken by the defence team.
Held that: (1) the task of deciding whether there may have been a miscarriage of justice requiring a reference to the High Court was one for the SCCRC, and such decisions were open to challenge by judicial review on conventional grounds of illegality only (para 6); (2) decisions taken during the trial required to be viewed in the context of the situation at the time they were taken and the test for defective representation was a high one; the fact that different strategic or tactical decisions could have been taken at trial did not amount to defective representation resulting in an accused being deprived of a...
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