Materials linked to
Chapter 16: " MISCARRIAGES OF JUSTICE IN SCOTLAND "
Much of this chapter of the book deals with the controversial cases (such as George Beattie and the "Glasgow Two" - Steel and Campbell) which have arisen from trials in the High Court of Justiciary. Further information about the Scottish Courts is available on the Courts Service Web Site.
Click here for a picture of the High Court of Justicary.
Click here for a picture of the Crown Office - the headquarters of the prosecution in Scotland.
Below are some materials from legislation in 1997 which are intended to allow a more flexible criterion for appeals and also envisages the setting up of a Scottish version of the Criminal Cases Review Commission. It will start work in April 1999, when it will replace the system of referrals to the Appeal Court by the Secretary of State for Scotland. A comprehensive list of referrals is given in a linked web page - click here.
Crime and Punishment (Scotland) Act 1997
Right of appeal
17. - (1) In section 106 of the 1995 Act (right of appeal in solemn proceedings), for subsection (3) there shall be substituted the following subsections-
"(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on-
(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; and
(b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned.
(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard.
(3B) Where the explanation referred to in subsection (3A) above or, as the case may be, (3C) below is that the evidence was not admissible at the time of the original proceedings, but is admissible at the time of the appeal, the court may admit that evidence if it appears to the court that it would be in the interests of justice to do so.
(3C) Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence-
(a) which is-
(i) from a person; or
(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,
who gave evidence at the original proceedings; and
(b) which is different from, or additional to, the evidence so given,
it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.
(3D) For the purposes of subsection (3C) above, "independent evidence" means evidence which-
(a) was not heard at the original proceedings;
(b) is from a source independent of the person referred to in subsection (3C) above; and
(c) is accepted by the court as being credible and reliable.".
(2) In section 175 of the 1995 Act (right of appeal in summary proceedings), for subsection (5) there shall be substituted the following subsections-
"(5) By an appeal under subsection (2) above, an appellant may bring under review of the High Court any alleged miscarriage of justice which may include such a miscarriage based, subject to subsections (5A) to (5D) below, on the existence and significance of evidence which was not heard at the original proceedings.
(5A) Evidence which was not heard at the original proceedings may found an appeal only where there is a reasonable explanation of why it was not so heard.
(5B) Where the explanation referred to in subsection (5A) above or, as the case may be, (5C) below is that the evidence was not admissible at the time of the original proceedings, but is admissible at the time of the appeal, the court may admit that evidence if it appears to the court that it would be in the interests of justice to do so.
(5C) Without prejudice to subsection (5A) above, where evidence such as is mentioned in paragraph (a) of subsection (5) above is evidence-
(a) which is-
(i) from a person; or
(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,
who gave evidence at the original proceedings; and
(b) which is different from, or additional to, the evidence so given,
it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.
(5D) For the purposes of subsection (5C) above, "independent evidence" means evidence which-
(a) was not heard at the original proceedings;
(b) is from a source independent of the person referred to in subsection (5C) above; and
(c) is accepted by the court as being credible and reliable.
(5E) By an appeal against acquittal under subsection (3) above a prosecutor may bring under review of the High Court any alleged miscarriage of justice.".
Transfer of rights of appeal of deceased person
20. After section 303 of the 1995 Act there shall be inserted-
303A. - (1) Where a person convicted of an offence has died, any person may, subject to the provisions of this section, apply to the High Court for an order authorising him to institute or continue any appeal which could have been or has been instituted by the deceased.
(2) An application for an order under this section may be lodged with the Clerk of Justiciary within three months of the deceased's death or at such later time as the Court may, on cause shown, allow.
(3) Where the Commission makes a reference to the High Court under section 194B of this Act in respect of a person who is deceased, any application under this section must be made within one month of the reference.
(4) Where an application is made for an order under this section and the applicant-
(a) is an executor of the deceased; or
(b) otherwise appears to the Court to have a legitimate interest,
the Court shall make an order authorising the applicant to institute or continue any appeal which could have been instituted or continued by the deceased; and, subject to the provisions of this section, any such order may include such ancillary or supplementary provision as the Court thinks fit.
(5) The person in whose favour an order under this section is made shall from the date of the order be afforded the same rights to carry on the appeal as the deceased enjoyed at the time of his death and, in particular, where any time limit had begun to run against the deceased the person in whose favour an order has been made shall have the benefit of only that portion of the time limit which remained unexpired at the time of the death.
(6) In this section "appeal" includes any sort of application, whether at common law or under statute, for the review of any conviction, penalty or other order made in respect of the deceased in any criminal proceedings whatsoever.".
The Scottish Criminal Cases Review Commission
25. - (1) After Part X of the 1995 Act there shall be inserted the following new Part-
"PART XA SCOTTISH CRIMINAL CASES REVIEW COMMISSION
194A. - (1) There shall be established a body corporate to be known as the Scottish Criminal Cases Review Commission (in this Act referred to as "the Commission").
(2) The Commission shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Commission's property shall not be regarded as property of, or held on behalf of, the Crown.
(3) The Commission shall consist of not fewer than three members.
(4) The members of the Commission shall be appointed by Her Majesty on the recommendation of the Secretary of State.
(5) At least one third of the members of the Commission shall be persons who are legally qualified; and for this purpose a person is legally qualified if he is an advocate or solicitor of at least ten years' standing.
(6) At least two thirds of the members of the Commission shall be persons who appear to the Secretary of State to have knowledge or experience of any aspect of the criminal justice system; and for the purposes of this subsection the criminal justice system includes, in particular, the investigation of offences and the treatment of offenders.
(7) Schedule 9A to this Act, which makes further provision as to the Commission, shall have effect.
References to High Court Cases dealt with on indictment.
194B. - (1) The Commission on the consideration of any conviction of a person or of the sentence (other than sentence of death) passed on a person who has been convicted on indictment may, if they think fit, at any time, and whether or not an appeal against such conviction or sentence has previously been heard and determined by the High Court, refer the whole case to the High Court and the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII of this Act.
(2) The power of the Commission under this section to refer to the High Court the case of a person convicted shall be exercisable whether or not that person has petitioned for the exercise of Her Majesty's prerogative of mercy.
(3) This section shall apply in relation to a finding under section 55(2) and an order under section 57(2) of this Act as it applies, respectively, in relation to a conviction and a sentence.
(4) For the purposes of this section "person" includes a person who is deceased. Grounds for reference. 194C. The grounds upon which the Commission may refer a case to the High Court are that they believe-
(a) that a miscarriage of justice may have occurred; and
(b) that it is in the interests of justice that a reference should be made.
Further provision as to references.
194D. - (1) A reference of a conviction, sentence or finding may be made under section 194B of this Act whether or not an application has been made by or on behalf of the person to whom it relates.
(2) In considering whether to make a reference the Commission shall have regard to-
(a) any application or representations made to the Commission by or on behalf of the person to whom it relates;
(b) any other representations made to the Commission in relation to it: and
(c) any other matters which appear to the Commission to be relevant.
(3) In considering whether to make a reference the Commission may at any time refer to the High Court for the Court's opinion any point on which they desire the Court's assistance; and on a reference under this subsection the High Court shall consider the point referred and furnish the Commission with their opinion on the point.
(4) Where the Commission make a reference to the High Court under section 194B of this Act they shall-
(a) give to the Court a statement of their reasons for making the reference; and
(b) send a copy of the statement to every person who appears to them to be likely to be a party to any proceedings on the appeal arising from the reference.
(5) In every case in which-
(a) an application has been made to the Commission by or on behalf of any person for the reference by them of any conviction, sentence or finding; but
(b) the Commission decide not to make a reference of the conviction, sentence or finding,
they shall give a statement of the reasons for their decision to the person who made the application.
Extension of Commission's remit to summary cases.
194E. - (1) The Secretary of State may by order provide for this Part of this Act to apply in relation to convictions, sentences and findings made in summary proceedings as they apply in relation to convictions, sentences and findings made in solemn proceedings, and may for that purpose make in such an order such amendments to the provisions of this Part as appear to him to be necessary or expedient.
(2) An order under this section shall be made by statutory instrument, and shall not have effect unless a draft of it has been laid before and approved by a resolution of each House of Parliament.
Further powers.
194F. The Commission may take any steps which they consider appropriate for assisting them in the exercise of any of their functions and may, in particular-
(a) themselves undertake inquiries and obtain statements, opinions or reports; or
(b) request the Lord Advocate or any other person to undertake such inquiries or obtain such statements, opinions and reports.
Supplementary provision.
194G. - (1) The Secretary of State may by order make such incidental, consequential, transitional or supplementary provisions as may appear to him to be necessary or expedient for the purpose of bringing this Part of this Act into operation, and, without prejudice to the generality of the foregoing, of dealing with any cases being considered by him under section 124 of this Act at the time when this Part comes into force, and an order under this section may make different provision in relation to different cases or classes of case.
(2) An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Powers of investigation of Commission Power to request precognition on oath.
194H. - (1) Where it appears to the Commission that a person may have information which they require for the purposes of carrying out their functions, and the person refuses to make any statement to them, they may apply to the sheriff under this section.
(2) On an application made by the Commission under this section, the sheriff may, if he is satisfied that it is reasonable in the circumstances, grant warrant to cite the person concerned to appear before the sheriff in chambers at such time or place as shall be specified in the citation, for precognition on oath by a member of the Commission or a person appointed by them to act in that regard.
(3) Any person who, having been duly cited to attend for precognition under subsection (2) above and having been given at least 48 hours notice, fails without reasonable excuse to attend shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days; and the court may issue a warrant for the apprehension of the person concerned ordering him to be brought before a sheriff for precognition on oath.
(4) Any person who, having been duly cited to attend for precognition under subsection (2) above, attends but-
(a) refuses to give information within his knowledge or to produce evidence in his possession; or
(b) prevaricates in his evidence,
shall be guilty of an offence and shall be liable to be summarily subjected to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days.
Power to obtain documents etc.
194I. - (1) Where the Commission believe that a person or a public body has possession or control of a document or other material which may assist them in the exercise of any of their functions, they may apply to the High Court for an order requiring that person or body- (a) to produce the document or other material to the Commission or to give the Commission access to it; and
(b) to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate,
and such an order may direct that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Court.
(2) The duty to comply with an order under this section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of any enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.
(3) The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to-
(a) the case in relation to which the Commission's function is being or may be exercised; or
(b) any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case).
(4) In this section-
"Minister" means a Minister of the Crown as defined by section 8 of the Ministers of the Crown Act 1975;
"police force" means any police force maintained for a local government area under section 1(1) of the Police (Scotland) Act 1967 and references to a chief constable are references to the chief constable of such a force within the meaning of that Act; and
"public body" means
(a) any police force;
(b) any government department, local authority or other body.
