A right to review: the role of the Scottish Criminal Cases Review Commission in 2023

One could be forgiven for thinking that developments in the way in which evidence is gathered and analysed, coupled with increased protections for the accused, have resulted in fewer miscarriages of justice in recent years. Developments such as the statutory provisions on disclosure and the right to legal representation at police interviews have mitigated many of the "classic" causes of miscarriage of justice. However, in a time of increasing pressures throughout the justice system, the Commission’s role in reviewing alleged miscarriages of justice is as important as it ever was.

The Commission was established in 1999 to review convictions and/or sentences and refer cases to the High Court of Justiciary for appeal where it believes that a miscarriage of justice may have occurred, and where it is in the interests of justice that a referral be made. A series of notorious cases in the UK, including the ‘Birmingham six’ and the ‘Guildford four’, gave rise to increasing concerns about the arrangements that were in place at the time for reviewing cases where it was suggested that a miscarriage of justice had occurred. The Sutherland Committee in 1996 concluded that there should be a new body, independent of the Executive, to refer possible miscarriages of justice to the Appeal Court. This led to the Commission being established.

Things have certainly changed since the Commission came into being – applications raising issues of failures in the disclosure of material by the Crown to the defence are now few and far between and since the introduction of the Jury Manual for use by the judiciary, cases involving grounds of misdirection of the jury are less frequent. We have noted a downward trend in the proportion of applications received from applicants represented by a solicitor. The input of a solicitor into an application is useful: they generally have an insight into the trial and appeal proceedings which informs an application and they can help to draw an applicant’s key points to the fore.

However, the key tenets of the Commission’s work have remained largely unchanged. The Commission continues to review applications which cite grounds of fresh evidence which has come to light since trial, defective representation by an applicant’s solicitor or counsel, or an unreasonable verdict of the judge or jury, to name a few. Some recent examples highlight the continuing importance of the Commission’s work and the value to the individuals and to the justice system overall.

In spring 2022, the Commission referred the case of Ineta Dzinguviene to the High Court. The applicant had been convicted of murdering her newborn baby in 2010. While serving her sentence in prison, fresh evidence came to light about her mental state at the time of the incident. The Commission concluded that this evidence was significant and that a miscarriage of justice may have occurred. Ms Dzinguviene’s conviction for murder was quashed by the Appeal Court in March this year, and a fresh prosecution was brought. This resulted in the Crown accepting a plea to a charge of culpable homicide on the basis of diminished responsibility.

A key part of the Commission’s work in recent years has involved reviewing convictions of former sub-postmasters and employees for crimes of dishonesty arising from their roles at Post Office Ltd. These cases are founded upon the operation of the Post Office’s computerised accounting and sales system, Horizon, and the associated conduct of Post Office Ltd. Readers of this piece are likely aware of issues surrounding Horizon which have been the subject of media coverage for a number of years. These cases are exceptional in the Commission’s caseload not just due to the nature of the cases, but also in the manner in which we have dealt with them. The Commission has been liaising with Post Office Ltd and the Crown Office to identify individuals whose convictions in Scotland may have relied upon Horizon evidence. We have undertaken steps to trace and write to those people who might have been affected.

In November 2022, we referred six of these cases to the High Court. As I write this piece, parties involved in the ongoing appeals will be preparing for a further preliminary hearing in mid-August and the substantive appeal hearing in the autumn. The court’s decision in the cases already referred to it will pave the way for the Commission’s consideration of other cases said to have been affected by Horizon.

A case referred last month, that of David MacDonald, concerns directions given by a sheriff to a jury on the subject of mutual corroboration. For the non-criminal law readers amongst you, you might recall this from your university days as the Moorov doctrine. Following investigation, the Commission concluded that the sheriff’s directions were such that the jury could not reasonably have been expected to follow them. The appeal process following this referral is in the early stages.

The Commission has been charting its course over the last 24 years, reviewing and referring a wide range of cases for appeal. As well as adapting to legal changes, the Commission has evolved and enhanced its review processes to ensure that we can investigate all cases efficiently and to a high standard. The referrals made by the Commission over the course of the past eighteen months demonstrate the continuing importance and relevance of the Commission as a cornerstone of Scotland’s criminal justice system.

If you’d like to find out more about the Commission’s review process and how to apply on behalf of a client, join an online event on Wednesday, 13 September 4.30 – 5.30pm. You can book a place here.

Look out for an article in September's Journal to find out more about how to make a successful application to the Commission.