S7 in the firing line as Justice Committee defend the role of the SCCRC and recommend repeal

[This is the headline over a news item published today on the website of Scottish lawyers' magazine The Firm.  It reads as follows:]

The Justice Committee has issued a strongly worded defence of the Scottish Criminal Cases review Commission and rejected two recent legislative attempts to interfere with its remit contained in the much maligned “emergency” legislation in the wake of the Cadder decision, and Lord Carloway’s review of criminal law.

The committee challenged whether introducing additional hurdles into the role of the Commission was in the interests of justice or warranted by its volume of business.

It said that the committee was “surprised” that Lord Carloway had sought to restrict access to the SCCRC by introducing a further test for cases.

“Emergency legislation passed in the wake of the Cadder case gave the High Court of Justiciary the power to reject a reference from the SCCRC if the Court, having regard to the need for finality and certainty in criminal proceedings, considered that it was not in the interests of justice to accept the reference,” the committee said.

“The Committee appreciates that the main purpose of this provision was to prevent a possible flood of references in the wake of the Cadder judgment involving individuals convicted mainly on the basis of information volunteered during detention, without access to a solicitor having been offered.

“However, as Lord Carloway’s report noted, the legislation gave the High Court a “gate-keeping role” relating to the interest of justice, that formerly rested only with the SCCRC, and which applied to all cases, not just those raising Cadder points. Lord Carloway further noted that that anticipated flood has not, in fact, materialised, and recommended that the relevant provisions in the emergency legislation be repealed. In doing so, he noted that the gate-keeping role assigned to the High Court was in principle inconsistent with the functions originally vested by Parliament in the SCCRC.

“Given the overall thrust of Lord Carloway’s argument, the Committee was surprised to note that, alongside this recommendation, Lord Carloway recommended restating the test for the High Court in determining whether to allow an appeal arising from an SCCRC reference as follows: (a) that there has been a miscarriage of justice, and (b) that it is in the interests of justice that the appeal be allowed.

“Whilst the first leg of the test, being a restatement of the current position, is unobjectionable, practically all witnesses to express a view, queried the purpose of the second leg.”

The letter said that the recommendation amounted to dismantling the gates at the bottom of the driveway only in order to reassemble them at the entrance to the front door.

Justice Committee Convener Christine Grahame MSP said the Committee had seen no evidence to suggest that this is a problem.

The vexed s7, introduced to the surprise of the legal community, was also challenged, and its repeal urged on the basis that it gave “undue prominence” to the need to reflect finality in court cases.

The section had been perceived as an attempt to target the ongoing Abdelbaset Al Megrahi case, and stymie any further possible appeal that may be lodged by his family or campaigners upon his death.

“Another point to arise in evidence was that the opportunity should be taken to repeal a second element of the emergency legislation; provision requiring the Commission itself to take into account finality and certainty in deciding whether to make a reference to the High Court,” she said.

“The SCCRC witness argued that the SCCRC did, in practice, consider these matters in deciding whether to make a reference, but said that the statutory test imposed by the emergency legislation gave these criteria undue prominence, especially given that the very existence of the SCCRC is an exception to the general principle that there should be finality and certainty in the judicial process.”