The Scottish Criminal Cases Review Commission In The Case Of (1) R M And (2) Edward William Gallacher
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Wheatley,Lord Menzies |
| Neutral Citation | [2012] HCJAC 121 |
| Docket Number | XC797/11 |
| Published date | 11 September 2012 |
| Date | 25 April 2012 |
| Court | High Court of Justiciary |
| Year | 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Menzies Lord Wheatley | [2012] HCJAC 121 Appeal No: XC797/11 XC40/12 OPINION OF THE COURT delivered by the LORD JUSTICE GENERAL in the References by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the cases of (1) RM; and (2) EDWARD WILLIAM GALLACHER _______ |
For RM: Carroll, McClure; McClure Collins, Glasgow
For Edward William Gallacher: McDonald, Rodger; Philpott Platt & Niblett, Dumbarton
For the Crown: Ms Wade, AD; Crown Agent
25 April 2012
Introduction
[1] The Scottish Criminal Cases Review Commission (the Commission) has referred these cases under Part XA of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). Each reference raises the question whether we should reject it in terms of section 194DA of the 1995 Act.
The relevant legislation
[2] Section 194B(1) of the 1995 Act provides inter alia that the Commission on the consideration of any conviction of a person may, if it thinks fit, at any time, and whether or not an appeal against such conviction has previously been heard and determined by the High Court, subject to section 194DA of the Act, refer the whole case to the High Court and that the case shall be heard and determined, subject to any directions that this court may make, as if it were an appeal under Part VIII of the Act.
[3] The grounds on which the Commission may refer a case to this court are that it believes that a miscarriage of justice may have occurred; and that it is in the interests of justice that a reference should be made (1995 Act, s 194C(1)). In determining that question, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings (s 194C(2)). Where the Commission makes a reference it must give to the court a statement of its reasons for making the reference (s 194D(4)(a)). The grounds for an appeal arising from a reference to this court must relate to one or more of the Commission's reasons for making the reference (s 194D(4A)). Despite that provision, this court may, if it considers that it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds (s 194D(4B)).
[4] Section 194DA provides that where the Commission has referred a case to this court under section 194B, the court may, despite section 194B(1), reject the reference if it considers that it is not in the interests of justice that any appeal arising from it should proceed (s 194DA(1)). In determining that question, the court must have regard to the need for finality and certainty in the determination of criminal proceedings (s 194DA(2)).
The 1997 legislation
The Sutherland Committee
[5] Since the enactment of the Criminal Appeal (Scotland) Act 1926, the law has provided for the referral of possible miscarriages of justice to the Appeal Court. Until 1997 the power to refer was vested in the Secretary of State for Scotland. The report of the Committee on Criminal Appeals and Alleged Miscarriages of Justice (June 1996) (the Sutherland Committee) recommended that there should be a new body, independent of the Executive, to carry out this function. The Committee considered, and rejected, the giving of additional powers to the Appeal Court to carry out its own investigations into potential miscarriages. Its reasons were as follows:
"5.45 ... We doubted whether petitioners or the public would regard it as a satisfactory arrangement that the body which had already refused an appeal should be given the responsibility of considering and investigating whether there were grounds in effect for a further appeal and should then determine it. We did not regard this as a sensible solution in relation to miscarriages of justice."
The Crime and Punishment (Scotland) Act 1997 (the 1997 Act)
[6] The recommendations of the Sutherland Committee were implemented by the 1997 Act. The Act established the Commission. The provisions relating to references by the Commission differed from their current form in three respects. First, section 194C of the 1995 Act, inserted by the 1997 Act, referred to the interests of justice criterion without further qualification. Secondly, the Appeal Court had no discretion to reject a reference. Finally, on the making of a reference the appellant was free to table grounds of appeal whether or not they were raised by the terms of the reference (eg Campbell v HM Adv 2004 SLT 397, at para [49]).
The 2010 legislation
Cadder v HM Adv (2011 SC (UKSC) 13)
[7] In Cadder v HM Adv the Supreme Court decided that the interviewing of a suspect by the police in terms of section 14 of the 1995 Act, which did not allow the suspect to have access to legal advice beforehand, constituted a breach of article 6 of the Convention. At the hearing in that appeal the Lord Advocate invited the Court to limit any ruling that would benefit accused persons so that it had only prospective effect. Lord Hope of Craighead expressed anxiety about the disruption that the court's decision might cause (at para [56]). Had it been open to the Supreme Court to do so, he would have favoured its making the limitation that the Lord Advocate proposed; but section 102 of the Scotland Act 1998 precluded that option (at para [59]). In that context Lord Hope made the following obiter observations:
"60. That is not to say that the principle of legal certainty has no application. On the contrary, I think that there are strong grounds for ruling today, on the basis of this principle and bearing in mind the fact that the Salduz objection could have been raised at any time after the right of challenge on Convention grounds became available, that the decision in this case does not permit the re-opening of closed cases. Cases which have not yet gone to trial, cases where the trial is still in progress and appeals that have been brought timeously ... but have not yet been concluded will have to be dealt with on the basis that a person who is detained must have had access to an enrolled solicitor before being questioned by the police, unless in the particular circumstances of the case there were compelling reasons for restricting this right. As for the rest, I would apply Murray CJ's dictum that the retrospective effect of a judicial decision is excluded from cases that have been finally determined: A v The Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, para 36.
61. That was a case where the statutory provision under which the applicant was convicted was later declared by the Irish Supreme Court to be unconstitutional. In paras 125-126 the Chief Justice set out the general principle in these terms:
'125 In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is the general principle.
126 I do not exclude, by way of exception to the foregoing general principle, that the grounds upon which a court declares a statute to be unconstitutional, or some extreme feature of an individual case, might require, for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice, that verdicts in particular cases or a particular class of cases be not allowed to stand.'
In para 127 he observed that the applicant, like all persons in his position, could have sought to prohibit prosecution on several grounds including that the section was inconsistent with the Constitution and that, not having done so, they were tried and either convicted or acquitted under due process of law. Once finality is reached in these circumstances, he said, the general principle should apply.
62. The same approach was recently adopted by the Court of Appeal in England in a case where the statute under which the appellants were convicted had not been notified as required by EU law: R v Budimir [2010] EWCA Crim 1486. Reference was made in that case to Marckx v Belgium and Walden v Liechtenstein, as well as to Murray CJ's observations in A v Governor of Arbour Hill Prison. In the light of these authorities I would hold that convictions that have become final because they were not appealed timeously, and appeals that have been finally disposed of by the High Court of Justiciary, must be treated as incapable of being brought under review on the ground that there was a miscarriage of justice because the accused did not have access to a solicitor while he was detained prior to the police interview. The Scottish Criminal Cases Review Commission must make up its own mind, if it is asked to do so, as to whether it would be in the public interest for those cases to be referred to the High Court. It will be for the appeal court to decide what course it ought to take if a reference were to be made to it on those grounds by the Commission."
[8] Lord Rodger of Earlsferry observed that since 1999 the Scottish courts had dealt with "many thousands of cases" in which the Crown secured convictions by relying, at least in part, on answers given by the accused to questioning by police officers when the accused had not had the opportunity to take legal advice (at para [98]). Lord Rodger also referred with approval to A v The Governor of Arbour Hill Prison (supra). He thought that, as in Ireland, legal developments in Scotland had no effect on "completed cases." That was an aspect of legal certainty that was necessary to prevent widespread injustices. It was inherent in Convention law. These were his conclusions:
"102 ... And that policy is, of course, embodied in section 124 of the 1995 Act which makes...
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