Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner
| Date | 01 September 2009 |
| Published date | 01 September 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00764.x |
| Author | Peter Duff |
THE
MODERN LAW REVIEW
Volume 72 September 2009 No 5
StraddlingTwoWorlds: Re£ections of a Retired Criminal
Cases Review Commissioner
Peter Du¡
n
In this paper, I draw upon the‘systems theory’ approach to miscarriages of justice (adopted by
Nobles and Schi¡) to re£ect upon my experience as a member of the Scottish Criminal Cases
Review Commission. I demonstrate how the Commission manages the tensions between the
rather di¡erent‘legal’a nd‘lay’worlds which it inhabits. More particularly, I argue that the Com-
mission, while heavilyconstrained by the law and a legal worldview, is morei ndependent of the
legal ‘system’ than some commentators would suggest. I substa ntiate my arguments through
describing some of the debates that took place within the Scottish Commission and analysing
in depth the judgements of the Scottish appeal court in some of the cases referred to it by the
Commission. Much of what I say is applicable in varying degrees to the English Commission
and to the current debate in England as to what constitutes a‘miscarriage of justice’.
INTRODUCTION
This paper is intended to give some insight into the way in which the Scottish
Criminal Cases Review Commission, of which I was a member from 1999 until
2007, determines the applications which come before it. My observations focus
primarilyon the deliberations and decisions of the Scottish Commission and the
High Court of Justiciary (the Scottish criminal appeal court
1
) but many of them
apply to varying extents to its English counterpart
2
and to similar bodies else-
n
School of Law, Universityof Aberdeen. I must emphasise that the views expressed in this article are
entirely my own and should not be taken to represent the position of the Scottish Criminal Cases
ReviewCommiss ion. I am very grateful to my fellow Commissioners and the Commission’s sta¡ for
the many stimulatingdebates we had during my time there.Additionally,I should like to thank Fiona
Leverick,David Schi¡ and Richard Noblesfor their views on a draft and those attending the inaugural
conference of the Centre for Criminal Justice, Queen Mary: Universityof London for their reactions
to a preliminary paper.I am also grateful to the anonymous reviewers of this paper.
1 It is also the court of ¢rst insta nce in Scotland for the most serious criminal cases. Appeals are
heard by three judges,ofte n referredto as an appeal court (rather than, more accurately, the High
Court).Henceforth, I shall refer to the High Court sitting in appellate mode as the ‘appeal court’.
2 The Criminal Cases Review Commission covers England,Wales and Northern Ireland but for
the sake of brevity, I shall call it the ‘English’Commission. It will be discussed in a l ittle more
detail below. For an excellent account of its ¢rst ten yearsof operation, see the recent book by a
former Commissioner:L. Elks, RightingMiscarriagesofJustice?:Tenyears of the CriminalCasesReview
Commission(London: JUSTICE,20 08). See also D. Kyle, another formerEnglish Commiss ioner,
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(5) 693^722
where.
3
I shall describe some of my own experiences as a Commissioner - and to
the extent that I can speak for my colleagues, our collective experience asfounder
members of theCommission. At this stage, it is vital to note that, unlike in Eng-
land, every application ^ whether it leads to a referral to the appeal court or a
refusal ^ was, and still is, determined by a full Board, ie at a meetingattended by
all of the Commissioners.
4
During my period of o⁄ce, the number of Commis-
sioners, all of whom were part-time and devoted a similar number of days to the
workof the Commission, varied between six and eight. Therefore onecan genu-
inely talk of a shared experience and the resulting development of a more or less
agreed and uni form approach to cases, although individual Commissioners still
held, and presumably continue to hold, di¡ering views on a variety of issues.
More speci¢cally, I wish to illustrate howin practice such a body negotiates the
tensions between the ‘legal system’ inhabited by the appeal courts and the ‘lay
world’, of media, politics and public discourse.
5
In particular, my focus is on the
relative weight to be attached to factual innocence and procedural unfairness in
determining whether to refer a case to the Scottish appeal court.
6
Of necessity,
the Scottish Commission has to engage with the legalworld-view to ensure that
there is a reasonable chance of any conviction that it refers to the appeal court
being quashed. However, it also hasto take account of abroader audiencei n order
to ful¢l its task of increasing public con¢dence in the criminal justice system,
particularly because it is by the ‘lay world’ that its success will ultimately be
judged. Further, I intend to argue that the view voiced by several commentators
that Criminal Cases Review Commissions (or any similar bodies) are inevitably
fated to remain in an almost totally subservient role to appeal courts is overly
pessimistic. I hope to show that, while admittedly a Commission’s freedom of
‘CorrectingMiscarr iagesof Justice: the Roleof the Cr iminal Cases ReviewCommission’ (2004)
52 DrakeLaw Review 657.
3 A Criminal Cases Review Commissionwas recently set up in Norwayand co nsiderationis pre-
sently being given to creating a similar institution in Canada. For further details of recent devel-
opments, see S. Roberts and L.Weathered,‘Assisting the Factually Innocent:The Contradictions
and Compatibilityof Innocence Projects and theCr iminal Cases ReviewCommission’ (2009) 29
OJLS 43
4 This is a product of the relative size of the Commissions’ workloads.The Scottish Commission
receivesaround 100 applicationsper annum and has at least one Board meeting per month, sched-
uled to last the entire day, whereas its English counterpart deals with around 1,000 applications
every year and these are determined by individual Commissioners or small sub-committees of
three Commissioners. Formore details of the Commissions’ caseloads and working practices,see
their Annual Reports: for Scotland, from1999^2000 at http://www.sccrc.org.uk/corporateinfor-
mation.aspx (last visited 18 May 2009); and for England, from 1997^1998 at http://www.ccrc.
gov.uk/about/about_29.htm (last visited 18 May 2009).
5 See R. Noblesand D. Schi¡,‘Miscarriagesof Justice: A Systems Approach’ (1995)58 MLR 299; R.
Nobles and D. Schi¡, Understanding Miscarriages of Justice (Oxford: OUP, 2000). See also Roberts
andWeathered, n 3 above.
6 At present, a livelydebate is taking place in England as to what should be the relative weights of
‘innocence’and ‘unfairness’in the appellate de¢ nition of a ‘miscarriageof justice’. See A. Ashworth
and M. Redmayne,The Criminal Process(Oxford: OUP,3
rd
ed, 2005) 354^358 for a useful sum-
mary; O⁄ce for Criminal Justice Reform,Quashing Convictions(2006) (which outlines the Gov-
ernment’s failed attempt to put more emphasis on ‘innocence’); and J. Spencer, ‘Quashing
Convictions for ProceduralIrregularities’ [2007] Crim LR 835.It is not my intention to contri-
bute directly this debate; rather, I simply want to demonstrate how, in practice, the issues raised
had to be dealt with on a regular basis bythe Scottish Commission.
StraddlingTwoWorlds
694 r2009 The Author. Journal Compilationr20 09 The ModernLaw Review Limited.
(2009) 72(5) 693^ 722
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