[What follows is an article that I wrote for this blog on this date four years ago. It is of continuing relevance because of the new application made in June 2014 to the Scottish Criminal Cases Review Commission jointly by members of Abdelbaset al-Megrahi’s family and relatives of persons killed on Pan Am 103:]
The section 7 con trick
The Scottish Government has stated that section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (2010 asp 15) was required in order to stem the potential flood of appeals that might have arisen after the Cadder decision through successful applications to the Scottish Criminal Cases Review Commission. This is not so. Section 7 goes much further than was necessary to avoid the floodgates opening.
What follows are the relevant provisions of section 7 as enacted by the Scottish Parliament, followed by a redraft showing all that would actually have been required.
What was enacted
In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings.
All that was required
In determining whether a miscarriage of justice may have occurred the Commission shall not take into account the circumstance that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him, provided that statement was made before 26 October 2010.
What was enacted
(1) Where the Commission has referred a case to the High Court under section 194B of this Act [the Criminal Procedure (Scotland) Act 1995] , the High Court may, despite section 194B(1), reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.
(2) In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.
All that was required
Where the Commission has referred a case to the High Court under section 194B of this Act, the High Court may, despite section 194B(1), reject the reference if the only reason given by the Commission for making the reference is that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him and that statement was made before 26 October 2010.
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