tag:blogger.com,1999:blog-1073021351804532798.post3031079428786002088..comments2024-03-15T06:02:30.623+00:00Comments on The Lockerbie Case: The Carloway Review and the SCCRCRobert Blackhttp://www.blogger.com/profile/03606456028430261555noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-1073021351804532798.post-21590048072648640632011-11-20T11:37:13.704+00:002011-11-20T11:37:13.704+00:00As a lay person when it comes to all things legal ...As a lay person when it comes to all things legal I think it is still possible to understand why the SCCRC was first set up and what its remit was. For me the most important part was that it was originally designed to work free of interference from the political and judicial establishments. It was to be independent and was trusted via an act of Parliament to impartially review all cases it took on. What MacAskill has brought in destroys this completely and without a doubt kills, stone dead, the SCCRC's original remit. For MacAskill has ensured that the political and judicial establishments will do what they like and no independent public body will be permitted to get in their way. <br /><br />Justice, it is clear, is not on our Justice Secretary's agenda. Why doesn't he just dismantle the SCCRC and be done with it and at least be honest about his aim, which is, to remove powers that allow anyone to say any Scottish Court ever gets anything wrong and that way(sick bucket please) "restore the integrity of the Scottish Justice System"?Jo Ghttps://www.blogger.com/profile/08536467440869239587noreply@blogger.comtag:blogger.com,1999:blog-1073021351804532798.post-78354022260655745042011-11-18T19:53:07.678+00:002011-11-18T19:53:07.678+00:00RB: "I may say that I personally find it diff...RB: "I may say that I personally find it difficult to envisage circumstances in which a court of justice worthy of the name could find that there has been a miscarriage of justice, but that it is not in the interests of justice to rectify it."<br /><br />I am quite sure that I would be unable to find a single friend who could help, but obviously it is not a matter of course.<br /><br />Sure, there can be a problem with resources. <br />We may have to filter, and say no to, or delay, some cases. As too many hopefuls, guilty or not, may try to get a second chance. I understand that this was the fear from the "Cadder"-case outcome, but that it did not appear to be justified.<br /><br />Does that mean that the emergency-legislation is to deal with a potential emergency only? A restriction in civil rights in advance, for the reason that it may be a problem?<br /><br />If understood correctly, why not wait with the legislation til the problem is there?<br /><br />I looked up "Finality" in wiki. <br />It ended with:<br />The importance of finality is the source of the concept of "res judicata" - that the decisions of one court are settled law, and may not be retried in another case brought in a different court.<br /><br />I suppose that is what was written in <br />8.2.2 In the Irish Supreme Court case of A v The Governor of Arbour Hill Prison, Murray CJ neatly set out the limit in the following terms [1]:"….in a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional".<br /><br />Well hidden - as usual in law texts - is the word "lawful". "...deemed to be and to remain lawful...", unless the laws, or they way were used were unconstitutional.<br /><br />"So, valid until maybe later determined not to be, on a constitutional basis."<br /><br />I always thought it was like this:<br />There is a court and a verdict. After this, appeals. Then we have a SCCRC, which can investigate cases they find worthy (and as said, as system has to be made if there are more than possible).<br /><br />Then they may decide to refer it back to court.<br /><br />Naturally the courts should not have a say here. I recall we already discussed this, but I forgot why anyone would think something else (apart of course from those who'd like to block an appeal).<br /><br />No need for time limits, if there were resources. Otherwise it could be a filtering criteria.<br /><br />From my own work I know that what may appear simple to laymen may not be simple at all for the professional who has to do the work. And the pro is right - most of the time. :-)<br />There's probably a good reason for the words.SMhttps://www.blogger.com/profile/13272238187226269250noreply@blogger.comtag:blogger.com,1999:blog-1073021351804532798.post-19803189268816688532011-11-18T17:00:23.993+00:002011-11-18T17:00:23.993+00:00Lord Carloway argues:
"...if it is for the S...Lord Carloway argues:<br /><br />"...if it is for the SCCRC to consider whether it is in the interests of justice to refer a case, then logically it may also be appropriate for the Court to consider such a test at least when determining the appeal."<br /><br />That doesn't necessarily follow. I always thought of the interests-of-justice test in relation to, or at least primarily in relation to, the Commission's view of probabilities, rather than the desirability or otherwise of sustaining an unfair verdict. It is the latter that he is talking about in relation to the Court's proposed new test. <br /><br />If the Commission thought there might have been a miscarriage of justice, it might still be wrong to refer if it considered that likelihood low. That is sensible, because otherwise there is no restriction on the Commission wasting the Court's time on unlikely cases. <br /><br />If that is what was envisaged by legislators establishing the SCCRC, it is hard to see the logic of Lord Carloway's argument.Matt Berkleyhttps://www.blogger.com/profile/07081278538574947314noreply@blogger.com