Wednesday, 24 November 2010

Good news regarding the Cadder emergency legislation

[The following is taken from a report just published on the website of Scottish lawyers' magazine The Firm.]

The Scottish Criminal Cases Review Commission has joined the growing clamour of concern about section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, passed by the Scottish Parliament last month, with Commission chairman Jean Couper saying there is “no evidence” that the provisions in section 7 of the new Act were required.

She added that the new section was “a fundamental constitutional change in the role of the Commission and in its relationship with the appeal court in Scotland.”

She said the provision “risks undermining the role of the Commission as an independent arbiter of issues relating to alleged miscarriages of justice.”

However, Couper also said that following a meeting with Kenny MacAskill the new measures, which had been criticised for fundamentally changing the nature of SCCRC referrals, were temporary, and would be reviewed as part of Lord Carloway’s investigation into criminal procedure.

“Whilst the court has and will continue to refuse some appeals based upon a referral by the Commission and on occasion will comment upon our basis of referral, I have no evidence of any concern amongst the judiciary that the Commission is unable or unwilling to undertake its duties in a measured, considered and appropriate way,” she said.

“Section 7 of the new Act, and in particular the creation of a new section 194DA of the Criminal Procedure (Scotland) Act 1995, creates a fundamental change in the relationship between the court and the Commission.

“The new legislative framework that gives authority to the High Court to reject a reference from the Commission at the outset risks undermining the role of the Commission as an independent arbiter of issues relating to alleged miscarriages of justice. The appropriate remedy for any aggrieved party, whether this be the applicant or the Crown, to challenge a decision made by the Commission, after it has considered the matter and reached a determination, is by way of judicial review. This, we feel, is the correct forum for the Commission’s application of our statutory test to be considered and tested, and not by the High Court in terms of the new section 194DA(2).”

She said that Justice Minster Kenny MacAskill had visited the Commission after concerns were raised.

“He assured me at our meeting that the new legislation was intended to provide interim measures which will now be subject to full consultation as part of Lord Carloway`s review. The Commission has been asked to play an active part in the forthcoming consultation and review process and is pleased to do so.”

[The Herald also has a shorter report on the subject.]


  1. This piece started with some promise and fell away. The SCCRC caved in to MacAskill. Bad move. They should have stuck to their position that his changes undermined their position because that is exactly what they do. This man is not to be trusted. He shows his regard, or otherwise, for the SCCRC frequently by refusing to acknowledge its findings on the Megrahi verdict and pretending they do not even exist. Temporary or not this measure to sideline the SCCRC, to restrict its authority is dangerous. It was also quite unnecessary and I do not believe a word of MacAskill's statement here. Not a word of it. He is easily the most slippery of politicians.

  2. Agreed with Jo G. If it's not needed, why tolerate it temporarily? What if in the future it isn't revoked? Will people be able to get up the nerve to protest again and force it back off the books? Someone might be hoping not.

  3. Exactly Adam. And we mustn't ignore either that these changes don't just potentially interfere with any future action we might take on the Megrahi case: anyone, tried in Scotland and convicted here whose conviction is reviewed by the SCCRC is affected. To my mind their rights are being severely restricted, reduced indeed removed altogether. The whole reason for the existence of the SCCRC is to provide independence during the review of any case. To subject their findings to the scrutiny of a judge or judges is ludicrous and absurd. There is no way MacAskill can defend this.

  4. All Ms Couper has really been given, by way of reassurance, is an invitation to participate in the consultation process. She has won nothing.

    The SCCRC is still sidelined, still undermined and will, I suspect, be basically irrelevant once the consultation is over. Inviting them to contribute views was nothing at all. Participating in consultation excercises guarantees little either. Indeed it guarantees nothing whatsoever.

    I am daily shocked at the absolute devious piece of work MacAskill has turned out to be.