Miscarriage of justice has bounded back into public consciousness

Introduction

A topic never far from national news headlines, miscarriage of justice has bounded back into the public consciousness this year with the recent focus on the victims of the Post Office/Horizon scandal.  The full implications of those wrongful convictions are yet to be worked through. A public inquiry is expected to report in due course. What we can say with certainty even now is that criminal justice will never be a solved puzzle. Mistakes happen. From time to time, even in 2024, innocent people find themselves in trouble. To deal with that extraordinary situation, an extraordinary remedy is required. In Scotland, the Scottish Criminal Cases Review Commission provides such a remedy.

My colleague Alison McNab wrote an article for the Journal last summer detailing some of the Commission’s recent activities. I do not intend to retread that ground at length, but it is fair to say that the Commission has been busy of late. 2022’s Ineta Dzinguviene referral led last summer to the quashing of a murder conviction. July of 2023 saw the referral to the High Court on a Moorov/misdirection point in the case of David MacDonald. The Commission kicked off the criminal appeal of the decade in November 2022 with six referrals in Horizon cases. Those individuals have all now had their convictions quashed, but the Commission has continued to review such cases, making further referrals in November 2023 and January 2024. On any view, the Commission continues to provide an effective remedy for those who find themselves the victims of miscarriage of justice in our jurisdiction.

More details of some of the Commission’s recent successes may be found in Alison’s blog. This article will focus instead upon issues that may be of more practical concern to readers of the Journal, which is to say the role of the solicitor in Commission applications and how best to assist clients in obtaining the right result.

The Role of the Solicitor in an SCCRC Application

If you are familiar with the Commission’s procedures, you might be forgiven for wondering if there is any real role for the defence solicitor during an application. The Commission’s model of operation is inquisitorial in character. The Commission’s information-gathering processes take place in private. The confidentiality of the product of any such investigations is maintained generally by the non-disclosure provisions in sections 194J-K of the Criminal Procedure (Scotland) Act 1995. The Commission’s decision-making body, its Board of members, also holds sessions in private. An opportunity for advocacy exists, but only in written form.

But if direct involvement in the Commission’s reviews is constrained by these structural considerations, there remains nonetheless an important role for the defence solicitor. Frequently, the most significant interviews for the Commission are those with applicants themselves. The Commission will invite any instructed solicitor to attend such an interview if they wish to do so. As any defence practitioner will appreciate, simply having someone available who is on their side can provide significant encouragement and reassurance to certain clients, particularly those who lack prior experience of the justice system. The professional requirements of the Commission’s in-house solicitors require us to stress that we do not act for applicants whose cases we manage. In one recent case, the Commission needed an account from a reluctant, nervous applicant. The skilful intervention of the applicant’s solicitor persuaded her client to engage, leading ultimately to a referral.

A further opportunity to influence the process arises in situation in which the Commission has taken the decision not to refer a case following a stage 2 (substantive) review. In such a case, the applicant is provided with the opportunity to make further submissions to the Commission, seeking to persuade it to reverse its decision. Like every organ of the criminal justice system, the Commission on occasion makes mistakes. Legal professionals are, of course, better placed to spot such mistakes than applicants themselves. The raison d'être of the Commission is to refer cases of possible miscarriage of justice to the court. If it is presented with a sound argument to support such a course of action, the Commission will take it.

Whilst there is a role for legal representatives to play during the main body of a Commission review, the assistance of legal representation in the preparation of an application may be of even greater benefit. Legal representation increases the chance that the Commission will accept a case for substantive review. The Commission’s overall rate of referral has remained fairly static over the years at around 4-5%. Over the past five years, however, the Commission has referred nearly one in five of the cases that it has accepted for “stage 2” review.[1] Over a similar time frame, the Commission has accepted for stage 2 review more than two in five cases in which the applicant is legally represented, but fewer than one in five in which they are not.

As to why that may be so, there are various possible explanations. One I would highlight is the important filtering and signposting role that legal representatives play. With direct access to the accused throughout the criminal process, trial solicitors have, arguably, a more complete picture of the criminal trial in action than any other professional involved in the process. No one is better placed to identify cases in which doubt may exist about the guilt of the accused. The Commission has found itself indebted many times over the years to agents who used their experience and instincts to tell them when not to let go of a case.

Framing a Successful Application

The stage at which I believe a defence agent can have the most impact upon the outcome of the process is in the formulation of the application. The Commission tries its utmost to make the application process as accessible as possible to lay people. We now, for example, issue our application form in easy read format and offer support in completing it to potential applicants with learning difficulties. There is though a limit to what our staff can do to assist within the boundaries of our own professional responsibilities. We also cannot escape the fact that we are an administrative body bound[2] to apply the ever more complex catalogue of criminal law and procedure. Framing a criminal appeal is a tall order; framing an application for review is, we hope, more user-friendly, but nonetheless it presents some of the same challenges. Qualified legal advisers are better placed to undertake this task than unqualified applicants.

We know that the law relative to criminal appeals is specialised and that some criminal practitioners may not be familiar with all of it. We have available on our website a series of “position papers”, which set out the Commission’s view on all the grounds of review that most commonly arise. A further position paper[3] sets out the approach that the Commission takes to the interpretation of its own statutory test and the various factors that it is likely to consider when taking its decisions. We also have a guidance document[4] for those intending to apply, which may be of use. It is beyond the scope of this article to rehearse those documents in full, but I would suggest bearing the following in mind when drafting an application:

• To get to stage 2, you need to demonstrate: (1) that there is something to review (a “stateable ground”) and (2) that there is a good explanation for the procedure that brought the case before the Commission.
• You don’t have to format the grounds of review like a note of appeal, but it helps to be clear about the body of law that you consider applies to each. If there is an established test, try to address each aspect of it.
• If you are relying upon documents or materials, it is useful to append them to the application. If you are founding upon fresh evidence in the form of a new account from a witness, please try to provide us with a statement if possible.
• If you disagree with a decision that the court made during the appellate process, it is vital to explain the basis for your view. The Commission is likely to reject an application that simply repeats a ground rejected at sift without further comment. On the other hand, the Commission does accept cases in which the applicant has explained why they consider that sifting judges have erred in fact or in law.
• Don’t neglect to explain the procedure that brought the case before the Commission. One of the most common reasons for the Commission to refuse a case at stage 1 is due to a failure to take advantage of the normal appeal process. If your client did make efforts to try to appeal, provide as much detail as you can about the steps they took. If it wasn’t feasible to appeal, explain why this was the case.
• Don’t be too discouraged if an application ends in a stage 1 refusal. The Commission’s stage 1 process is designed to be open-ended. The statement of reasons at stage 1 should explain why the Commission has decided not to accept the case for stage 2 review on this occasion. If the problem can be remedied, the Commission will consider a second or subsequent application on its own merits.

Conclusion

The Scottish Criminal Cases Review Commission continues to provide an effective remedy for those who maintain that they have suffered a miscarriage of justice. Even if opportunities for direct intervention or advocacy may be limited, the statistics show that solicitor involvement increases the chance of a successful outcome for the applicant. Figures for the past five years show that a stage 2 review stands almost a one in five chance of ending in a fresh criminal appeal. In order to advance to stage 2, it is only necessary to provide a statable ground of review and a good explanation for the procedure that brought the case before the Commission. This is a hurdle that any genuine case of miscarriage of justice should be able to clear. The input of a solicitor in the preparation of the application acts to prevent any unnecessary stumbles. If you are a criminal practitioner, no one is better placed than you to signpost the Commission to appropriate clients. The next time you find yourself with misgivings about a criminal conviction, we would ask that you give the Commission some thought.

[1] A figure almost identical to the overall proportion of criminal appeals successful in the High Court of Justiciary: scts-quarterly-criminal-court-statistics---bulletin-q4-2022-23.pdf (scotcourts.gov.uk)

[2] Raza v HMA [citation]

[3] The Commission’s Statutory Test The Commission's Statutory Test_vdx4YnvZSxmyeiluDwMZ.pdf (multiscreensite.com)

[4] Submissions to the Commission Guidance for Applicants and Representatives - Submissions to the Commission V5 final.docx (live.com)