On 13 December 2016, the Supreme Court heard an michael-way-of-pleanappeal 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.

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 G’s legal team had withdrawn before the appeal and G was not given a continuation to find new representation or to allow for the Cadder judgment to be released.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.