FROM THE ARCHIVE: Reshaping the Criminal Justice System

FROM THE ARCHIVE... We’ll be revisiting popular Journal articles, updating, and adding contemporary commentary. 

You’d be amiss to think this title was created in 2023, with the Victims, Witnesses, and Justice Reform (Scotland) Bill but no, it was from 1 April 1999.

You’ll notice as you re-read this piece from Sheila McLean, the hope to have a website where prisoners can submit their petitions via email. That website does exist in 2024, something that feels incredibly odd to type, today! 

In its infancy, they thought they may have 30-40 cases per year; statistics show that between 1 April 1999 and 31 March 2022 they received 2,883 applications. That works out at 115 applications a year, across roughly a 25-year period.

A significant part of the Commission’s work more recently saw them reviewing convictions of former Post Office Ltd sub-postmasters and employees for crimes of dishonesty. A news story I am sure many were already familiar with, but one that has seen an influx in conversations owing to the recently launched ITV drama Mr Bates vs The Post Office. The cases linked to the Post Office Scandal are exceptional in the Commission’s caseload – not just by nature but the way in which the Commission had to deal with them. The Commission was liaising with both Post Office Ltd and the Crown Office to identify anyone who had convictions in Scotland that may have relied on Horizon evidence.

Chair of the Scottish Criminal Cases Review Commission explains the philosophy which will shape its workings in its formative months.

Three weeks after its official launch, the creation of the Scottish Criminal Cases Review Commission promises to fundamentally alter the landscape of the criminal justice system in Scotland.

“It was clear that there was a nationwide impetus to separate political elements from the criminal justice system. While there was no direct criticism of the existing system, the Commission is intended to enhance the process of investigating miscarriages of justice,” said Sheila McLean.

The symbolic effect of separation from the Secretary of State is also intended to be supplemented by a practical improvement in the structure to adequately resolve miscarriages of justice, with the Commission employing more staff than have been available to the Secretary of State.

English System - Obvious Parallel

In assessing the likely impact of the Commission, the experience of the English system represents the most obvious parallel: “As a policy it was appropriate to be in line with England. There is a feeling that we have not had the number of high-profile miscarriages that had afflicted the English system over the years, but that wasn’t a reason to be complacent.”

Nevertheless, the early running of the English review commission has been tarnished by suggestions that under-funding and a greater than anticipated caseload have left it with a backlog of cases, possibly up to three years’ worth.

“In England, the structure is inevitably much bigger, and includes full-time commissioners to deal with several hundred cases. They’ve had a number of high-profile old cases, such as Derek Bentley and James Hanratty, to investigate which have been time-consuming and expensive.

“The Scottish Office is completely committed to this project and indeed our funding stands at a greater level than was recommended by the Sutherland Committee. In our first year we’re not expecting more than 30 or 40 cases, although now that our remit covers summary cases as well, this figure represents guesswork.”

The members of the SCCRC have visited the English operation and have been particularly impressed with their office management and informed IT purchasing. Chief Executive in Scotland Robert Eadie, who has returned from a post as an ombudsman in Western Australia to take up a position with the Commission, will monitor the need for an improved budget.

For solicitors seeking to present a petition on behalf of a client, the process begins by writing to the Commission, who will send out a form indicating the sort of information required to assist in assessing the merits of a case.

"Sheila McLean is anxious not to second

guess the view of the Appeal Court"

However, Sheila McLean is anxious not to second guess the view the Appeal Court is likely to take of references made by the Commission, preferring to make reference only to the legislation’s definition of what represents grounds for reference.

Questions remain to be answered as to the provision of legal aid and the prioritisation of cases. The Commission has pledged to be transparent and initially at least, intends to deal with cases in the order in which they come in.

“We’re keen that people aren’t kept waiting, but the key characteristics in deciding the urgency of a case will be if someone is still in prison, particularly if they have a long time to serve.”

To that end, the Commission intends to develop a website which could eventually enable prisoners to submit petitions by email. The Commission’s case-workers are committed to investigating all claims that arrive at the office.

The new body has received support from senior law officers in Scotland and from the Law Society of Scotland, and Sheila McLean is encouraged that “there is a genuine sense that people want this to work”.

"The legal system is taking

miscarriages seriously"

“It’s important for public confidence that we show that the legal system is taking miscarriages seriously. We will aim to be as clear as possible in giving reasons for our decisions and providing a response as efficiently as the availability and difficulty of evidence allows.

“The Commission will undertake an independent investigation, but with the assistance of the existing resources of the police and Crown Office.”

References can be made to the High Court whether or not an appeal has been heard. The Commission will also be proactive in suggesting changes to the law, arising from their monitoring of any problems which in its assessment seem to be perennial.

Sheila McLean is clear about her aims for her time in the chair: “I’ll be monitoring the performance of all our staff and providing a steer to the entity. The direction I hope we will take is towards an open, accountable and efficient addition to the criminal justice system in Scotland.”

Picture credit: Shutterstock