Case Preview: Gordon v Scottish Criminal Cases Review Commission
31 Tuesday Jan 2017
Michael Way of Plean, Brodies LLP Case Previews
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On 13 December 2016, the Supreme Court heard an 
appeal stemming from a judicial review of a decision of the Scottish Criminal Cases Review Commission (“SCCRC”) to refuse to refer the appellant’s case back to the High Court of Justiciary for reconsideration.
Facts
The appellant, G, was convicted of rape by majority verdict in 2002. Following standard police practice in Scotland at the time, he was not offered access to a solicitor before his police interview under caution. During this interview, G confirmed that he had engaged in sexual intercourse with the complainer but maintained that it had been consensual. G’s statement to the police was the only source of corroboration to the sexual acts. Without this he could not have been convicted.
G appealed against his conviction and this was refused in 2004. G then petitioned the SCCRC in 2005 for a review of his case. The SCCRC referred G’s case back to the High Court on the basis that a miscarriage of justice may have occurred as a result of errors in the police enquiry and “other irregularities”. After a tortuous procedural history, and two sets of solicitors and counsel having come and gone, an appeal was eventually heard in January 2010. This appeal – presented by G in person – was refused on 6 May 2010. Permission to appeal to the Supreme Court was also refused.
The Supreme Court heard the appeal in Cadder v HMA 2011 SC (UKSC) 13 later in May 2010 and would ultimately decide in October 2010 that the Scottish practice of denying accused persons access to a solicitor while detained was unlawful.
G subsequently petitioned the SCCRC a second time in May 2011. This time G relied on a new forensic report, as well as the Cadder argument. The SCCRC concluded that, although a miscarriage of justice may have occurred in relation to the police’s failure to allow G access to a solicitor, it was not in the interests of justice to refer the case to the High Court. G sought to challenge this determination by way of judicial review.
Outer House
At first instance, Lord Pentland refused G’s petition. G submitted that the SCCRC had erred in treating the passage of time between the original conviction and the petition as significant. SCCRC was also said to have erred in failing to give due weight to the prejudicial nature of the interview itself. Furthermore, SCCRC should have taken into account the proximity of the decision in Cadder from G’s High Court appeal. G’s legal team had withdrawn before the appeal and G was not given a continuation to find new representation or to allow for the Cadder judgment to be released. The issue of “finality” in legal proceedings was also addressed. It was submitted that G was not seeking a “windfall benefit” from the change in the law as he had always maintained his innocence, thus Lord Hope’s observations in Cadder on the need for finality could be distinguished.
SCCRC’s position was that the decision to refer was discretionary – there was no duty to refer cases unless it considered there was a potential miscarriage of justice and it was in the public interest. When weighing the public interest, SCCRC was right to consider the passage of time, the principal of finality and the reality of the situation that G had never denied the truth of his interview, and indeed had relied upon it during trial.
Lord Pentland considered that all of G’s grounds of challenge were unsound. He refused the petition.
Inner House
Lord Menzies gave the opinion of an Extra Division which also included Lord Wheatley and Lady Clark of Calton on 6 November 2013. In three short paragraphs G’s reclaiming motion was refused.
Lord Menzies noted that the phrase, “the need for finality and certainty in the determination of criminal proceedings” can be readily understood and does not need further elucidation or explanation. The proximity of the Cadder decision was held to be of little importance – what was clear was that the case had “become closed” prior to Cadder. Finally, no error of law in the reasoning of either the SCCRC or the Lord Ordinary could be found.
Permission to appeal to the Supreme Court was granted. The issue for determination is whether the Commission erred in law by failing to refer G’s case to the High Court.
The decision of the Supreme Court is awaited.
4 comments
Darrien Sullivan said:
14/10/2018 at 12:39
My son cy sullivan was convicted on a majority verdict of rape, subsequently both appeals and a sccrc submission have failed. The SCCRC have refused to review saying it is a fishing exposition. There is compelling evidence he was telling the truth.
Lilian Gordon said:
22/04/2019 at 19:21
Our son was Graham Gordon who died over a year ago.Even on his death bed he was asking us to continue with his efforts to clear his name which I am doing.He fought for 18 years to try and prove his innocence
I have uncovered exculpatory evidence which I will be submitting to the SCCRC along with fresh evidence in the near future and all I would say to the above above gentleman keep going and look at evidence and try and uncover fresh or exculpatory evidence to present to the SCCRC.I would like to add a correction that our son relied on his interview which he did Not.The morning the tape of his evidence was to be played his QC asked him if there was anything on it to incriminate him and he said “I do not think so”.It was theCrown who decided to play the tape and his QC had to respond this.On reflection I think Mr Jack Davidson made a good case supporting ourson’s case but the character assassination presented by the Crown
Influenced the Jury to the detriment of our son and returned a Majority Guilty Verdict.
Lilian Gordon said:
22/04/2019 at 19:29
Dear MrSullivan
To be fair you must give reasons for a review otherwise they will ay it isa”fishing expedition “.It is very difficult to prove your innocence but keep trying..Our son never gave up even on his death bed.
Kindest regards
LilianGordon
Luis said:
24/11/2020 at 03:45
I am sorry to hear about your son.
SCCRC is notoriously difficult to obtain a referral from. Primarily, they set arbitrary standards for what might be a miscarriage of justice or what is in the interest of justice test.
It is much easier or perhaps fairer to have a High Court judge pass an appeal ground during the sifting process than to hope and pray for a referral from the commission on the same grounds. In other words, the gatekeeper is stricter than the master which is detrimental to those seeking justice.
Tragically, many applicants might not have the fresh evidence available to them at the sifting process and have no choice but to go through the gatekeeper or what is known as the SCCRC. Most of the times, SCCRC makes subjective judgment calls. More notorious (rightly or wrongly) of an applicant, almost negligible chances of success.
The aura of fairness is further receded when it comes to Anderson sort of appeals where Applicant claims defective representation. One look at the published statistics reveal the dismal prospects of any claim of defective representation. The commission prides itself in having successfully defended handful judicial reviews over the years.
Applicants raising a JR action almost always rely on public funding and commission almost always object to them raising a judicial review causing months if not years of delay. How does that even begin to comport with any sense of Justice. Yes, parties to an action can generally object to the party’s application for legal aid, however, the commission’s monopoly over this process as a gatekeeper should be a strict bar working against the commission to raise objections to applications for legal aid in a JR action.
I do believe your son’s action against the commission for reparation was impeded due to him representing himself and that his notoriety and negative publicity worked against him. Courts will never allow a self-represented convicted (rightly or wrongly) person to succeed against SCCRC. This aura and perception of SCCRC being a justice seeking entity is too important for the system to protect.
How is it even possible that no JR ever succeeded against the commission since commencement. How is it that no one ever succeeded in a reparation case? Most solicitors shy away from such cases either due to the type of applicant such as your son, or that they lack the courage and legal audacity to right a wrong or at least robustly test a position before a court.
I do commend your son for his efforts. He might have had a fighting chance if he was represented in his effort against the commission. Unfortunately, the business of SCCRC will go on and much of their power goes unchecked as JR is largely a tiger with no teeth.