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Cite as: 2007 SCCR 403, [2007] CSOH 152, [2007] ScotCS CSOH_152

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 152

OPINION OF LORD MALCOLM

in Petition of

MOHAMMED RAZA

Petitioner;

for

Judicial Review of a decision of the Scottish Criminal Cases Review Commission not to make a reference to the High Court of Justiciary in terms of section 194B of the Criminal Procedure (Scotland) Act 1995

________________

Petitioner: C. Shead; J MacGregor; Campbell Smith, WS

Respondents: G. Moynihan, Q.C.; Scottish Criminal Cases Review Commission

24 August 2007

[1] This is a petition for judicial review of a decision of the Scottish Criminal Cases Review Commission (the Commission). The petitioner owned a restaurant in Carnoustie. In February 2005 he was convicted on indictment of several charges of indecent assault and one of contravention of the Criminal Law (Consolidation) (Scotland) Act 1995 section 6. The offences involved six young females employed by him in the restaurant. The sheriff at Arbroath imposed a sentence of three years imprisonment on the most serious charges, which involved very intimate contact with and injury to one complainer, and imprisonment for one year on the remaining charges to run consecutively with the first sentence. The petitioner applied to the High Court of Justiciary for leave to appeal on the basis that the sentence of four years imprisonment was excessive. The sifting judge refused leave to appeal, commenting that "in view of the nature of this disgraceful course of sexual abuse, it cannot be said that the sentences were either inappropriate or excessive." An appeal against that refusal was refused by two judges, who considered that the grounds of appeal were not arguable. The petitioner applied to the Commission, asking it to exercise its power to refer the case to the High Court. In due course, in a statement of reasons the Commission expressed the following view:

"In light of the whole facts and circumstances of the applicant's case, the Commission is not persuaded that the length of sentence imposed upon the applicant was such that it could be said that a miscarriage of justice may have occurred."

It concluded:

"The Commission does not believe that a miscarriage of justice may have occurred in respect of the applicant's sentence and accordingly is not minded to refer his case to the High Court."

The petitioner took advantage of an offer from the Commission to consider any further submissions on his behalf before issuing a final decision. He submitted an opinion of counsel which, amongst other things, included the following:

"It is submitted that the Commission should be concerned with the question of whether there are arguable grounds (for the appeal) and as a consequence whether the judges at the second sift erred by refusing to grant leave."

The Commission considered the opinion, but adhered to the view previously expressed and declined to make a referral.

[2 ] In this petition for judicial review, the petitioner asks the court to reduce the Commission's said decision. At a first hearing Mr Shead for the petitioner elaborated upon the reasoning set out in his opinion. Before summarising his submissions on an alleged fundamental error in the Commission's approach, it is convenient to note the relevant statutory provisions. Section 194B(1) of the Criminal Procedure (Scotland) Act 1995 (as amended) (the Act) provides:

"The Commission on the consideration of any conviction of a person or of the sentence (other than sentence of death) passed on a person who has been convicted on indictment or complaint may, if they think fit, at any time, and whether or not an appeal against such conviction or sentence has previously been heard and determined by the High Court, refer the whole case to the High Court and the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII or, as the case may be, Part X of this Act."

Section 194C provides:

"The grounds upon which the Commission may refer a case to the High Court are that they believe -

(a) that a miscarriage of justice may have occurred; and

(b) that it is in the interests of justice that a reference should be made."

The debate before me focused on section 194C(a). Sub-section (b) did not arise given the Commission's decision that ground (a) was not satisfied. During the discussion reference was made to section 107(1)(a) of the Act, which states that a judge of the High Court shall grant an application for leave to appeal against, amongst other things, a conviction on indictment and/or the sentence imposed, if he considers that there are "arguable grounds of appeal".

Submissions on section 194C(a) on behalf of the petitioner
[3 ] Under reference to the cases of Drummond v HMA 2003 S.C.C.R. 108 and Harper v HMA 2005 S.C.C.R. 245 Mr Shead submitted that miscarriage of justice is a very broad concept, which should not be subjected to a strict or technical construction. Clearly the Commission is not expected to carry out the same task as the court, which is to determine whether there has been a miscarriage of justice. Therefore the question arises as to the appropriate threshold for the Commission to adopt. It was submitted that if the Commission finds arguable grounds for an appeal, then it is clear that a miscarriage of justice must have occurred. In short, the only test that the Commission should consider is whether it is possible that there has been a miscarriage of justice. If there are arguable grounds for an appeal, then the answer to that question must be yes. In the present case, the only relevant question was: is it arguable that the sentence was too long? For the various reasons set out in the petition and the material put before the Commission, Mr Shead submitted that the obvious answer to this question is yes, especially if the arguments are considered cumulatively. However the Commission fell into error by addressing the merits of the sentence imposed, rather than whether there was an arguable or prima facie case for an appeal on the ground that it was excessive. The Commission should have concluded that the sift judges ought to have granted leave to appeal, therefore the Commission should have referred the case to the High Court. It was not the Commission's task to consider whether the sentence imposed was or was not excessive. The word "may" in section 194C(a) of the Act demonstrates that the only relevant test is arguability. The Commission can refuse to refer only if it can exclude the possibility of a miscarriage of justice. In the present case the Commission should have concluded that the sentence might be too long, and thus it was bound to exercise its power to refer. This approach was supported by the decision in Cochrane v HMA 2006 J.C.135 from which it is apparent that the Commission is now the petitioner's only method of redress. For the above reasons the Commission approached its task in the wrong manner and on the basis of a misinterpretation of the grounds for referral in the Act.

[5 ] Mr Moynihan submitted that in the application to the Commission the key issue was whether the sentence imposed by the sheriff was excessive. That is the context of the alleged miscarriage of justice. The specific complaints presented on behalf of the petitioner as to the reasoning of the sheriff in his report to the High Court, and as to the acts and alleged omissions of the sifting judges, are secondary to the overarching issue of whether there may have been a miscarriage of justice because of the imposition of a sentence which is excessive in all the circumstances. If the sentence was not excessive, there was no miscarriage of justice, even if some or all of the said complaints are justified. The Commission correctly asked itself, was the sentence excessive in all the circumstances of the case? It answered no. It was entitled to form that view. In a consistent pattern of behaviour over many months the petitioner was grooming vulnerable young females in his employment. One member of staff stayed with him for long enough for the assaults to go well beyond the early stages of grooming. Further, the Commission was simply echoing the views already expressed by three experienced sifting judges. The Commission did not believe that there may have been a miscarriage of justice - hence it did not refer. By reference to the identity of some of the personnel on the Commission Mr Moynihan rebutted a submission made by Mr Shead that the Commission did not possess the necessary practical experience and expertise to form a view on the question of whether a sentence was or was not excessive.

Discussion of and decision on the submissions concerning the proper approach to section 194C(a)

[6 ] The petitioner contends that the Commission erred by applying its mind to the merits of his case, rather than to whether it was arguable. The starting point for an assessment of the proper approach to the Commission's task is the language of the relevant statutory provisions quoted above. To my mind it is important to give weight to the full wording of section 194C. Mr Shead concentrated on the phrase "that a miscarriage of justice may have occurred" (emphasis added). However the Commission can refer a case to the High Court if "they believe - (a) that a miscarriage of justice may have occurred" (emphasis added). Thus, if having considered an application and carried out such inquiries as are considered appropriate, the Commission reaches the view that there has not been a miscarriage of justice, for example because the sentence is not excessive, then it follows that the Commission does not believe that a miscarriage of justice may have occurred. The essential task for the Commission is to consider and form a view on whether there may have been a miscarriage of justice.

[7 ] Regard can be had to section 194B(1) which provides that the Commission "may, if they think fit" refer a case to the High Court. This does not suggest that the merits of the case are off limits to the Commission. On the contrary, especially when considered along with the full terms of section 194C(a) and (b), it indicates a broad discretion to be exercised having regard to all the factors which the Commission considers relevant to the justice of the situation. If the Commission forms the view that there has not been a miscarriage of justice because the sentence complained of is not excessive, that would seem to be an obviously relevant consideration, which, bar some exceptional circumstance, is likely to be determinative of the matter. This approach to the Commission's task is supported by the surprise of the court in Crombie that the Commission did not consider the merits of the applicant's defence.

[8 ] It is entirely understandable and appropriate that Parliament did not ask the Commission to determine whether there had been a miscarriage of justice, since that would trespass on the exclusive jurisdiction of the court. However, it does not follow that the Commission must confine itself to whether there are arguable grounds for an appeal. Rather Parliament has set up a system for the consideration of a conviction or a sentence by a body of appropriate persons who are independent of Government and outside the court system, who, if asked to do so, must assess whether the conviction and/or sentence should be reviewed by the appeal court. If Parliament had intended the Commission to apply the same test as the sifting judges, it could have said so in clear terms. However, when deciding on the grounds for a referral, Parliament did not repeat the statutory provisions for the grant of leave to appeal, nor did it use language such as "arguable grounds" or "prima facie case". Rather it has asked the Commission to make a judgment, namely to form a view on whether it considers that a miscarriage of justice may have occurred. This does not imply a legalistic assessment of probable cause or stateable case, but a considered assessment by the Commission of the merits of the matter, and as to whether it is of the view that there is sufficient concern as to the conviction or sentence to justify a referral to the High Court. Recognition that there are arguable grounds for leave to appeal is a different thing from belief that a miscarriage of justice may have occurred. Thus a person may identify arguable grounds, but, having considered the matter for himself, also conclude that there has not been a miscarriage of justice; or to use the statutory language, that he does not believe that a miscarriage of justice may have occurred. In any event, cases can and are put before the Commission after refusal of an appeal by the court - not just after refusal of leave to appeal by the sifting judges. Plainly an appeal can be refused by the appeal court notwithstanding the existence of arguable grounds in its favour. It would be a nonsense if the unsuccessful appellant could ask the Commission to refer the case back to the High Court over and over again simply because of the existence of those arguable grounds.

[9 ] The construction which I prefer is supported by the powers of investigation, including precognition, given to the Commission in the relevant part of the Act. It is difficult to see how or why those powers would be either needed or exercised if the Commission's task was as limited as counsel for the petitioner submitted. The full terms of sections 194B and 194C indicate that the Commission's remit is a discretionary one. This can be contrasted with that given to the sifting judges, who have no discretion to refuse leave to appeal if there are arguable grounds of appeal. I agree with Mr Moynihan's submission that this is inconsistent with the submission that the Commission's task should be equiparated with that of the sifting judges. The Commission is not a direct appeal body against a refusal of leave to appeal. Rather the language and overall structure of the legislation relating to (a) applications for leave to appeal, (b) the finality provisions, and (c) the role of the Commission, point to the Commission as being a long stop body designed to step in and act if and when it is of the view that the circumstances are such that the appeal court should consider or reconsider a conviction or sentence. For these reasons I reject the main submission presented in support of the petition for judicial review. In my opinion the Commission approached its task in the correct manner and on the basis of a proper interpretation of the relevant statutory provisions.

Other criticisms of the Commission's decision
[10 ] Mr Shead criticised the sheriff's reasoning in his report and the refusal of leave to appeal by the sifting judges. In particular the sheriff should not have referred to the petitioner having required the complainers to give evidence in court, nor to an allegation of sexual abuse some twenty years earlier of which there had been no evidence at the trial. Mr Shead criticised the sifting judges for not having identified these as grounds for leave to appeal. I do not consider it necessary to dwell on these matters in any detail, since they were all designed to demonstrate that there were arguable grounds for an appeal against the sentence. If, as I have held, the Commission was entitled to ask itself whether the sentence imposed was outside the appropriate range, and thus whether there may have been a miscarriage of justice resulting from an excessive sentence, these detailed points, either taken individually or cumulatively, are of only secondary importance. In themselves they neither taint nor bear on the Commission's independent assessment that, having regard to all the relevant circumstances, it did not consider the sentence to be excessive. In any event Mr Moynihan submitted that there had been no reviewable error by the Commission in respect of any of the detailed grounds relied on by the petitioner. For example, as to the sheriff's mention of the old allegation, the Commission took a tenable view of it. Mr Moynihan reminded me that this is a judicial review, and the court must not seek to substitute any views of its own for those of the Commission. The relevant question for me, so far as the specific complaints as to the Commission's reasoning are concerned, is whether the Commission was entitled to take the views which it did. In this regard I agree with Mr Moynihan's submission that, in the various passages in the Commission's reasons focused on by the petitioner, there was no reviewable error by the Commission.

[11 ] I should also record that Mr Shead presented a brief argument which, as I understood it, was to the effect that his approach to section 194C of the Act and his criticisms of the respondent's decision should be accepted, because otherwise there would be a breach of the petitioner's right to a fair determination of the criminal charge under article 6(1) of the European Convention on Human Rights (ECHR). This was on the basis that the petitioner has been denied the opportunity to present arguable grounds of appeal. The Commission should have recognised this and made a referral because of it. Reference was made to section 3 of the Human Rights Act 1998. Given the decision in Cochrane v HMA 2006 JC 135, it is important to note that the Commission is now the only route for redress open to the petitioner. In reply Mr Moynihan observed that article 6(1) does not guarantee that a convicted person will be granted an appeal hearing. Having regard to its scope, article 6(1) is not engaged in the circumstances of this case. In the result I prefer Mr Moynihan's submissions. I do not consider that the invocation of article 6(1) of ECHR advances Mr Shead's submission beyond that discussed above. No doubt overall fairness requires that a sentence should not be excessive. However, I see nothing in article 6(1) which forces the Commission, the sifting judges, or anyone else to allow an appeal on sentence when the considered view is that the sentence is not excessive. Indeed the Strasbourg jurisprudence teaches that in considering whether there has been a breach of article 6(1), it will always be necessary to have regard to the overall impact of any specific defects in the procedure. In short, and even assuming in favour of the petitioner that the Commission's activities fall within the scope of article 6(1) and the obligations imposed by it, I have not been persuaded that there is anything in the Commission's approach to its task, nor in the terms of section 194C of the Act as interpreted above, which is incompatible with or in violation of the petitioner's rights under the article as interpreted by the Strasbourg Court.

[12] The final ground of complaint related to an issue arising from a short passage in the opinion of Mr Shead provided to the Commission after the issue of its preliminary reasons. Mr Shead noted the sheriff's observation that he "had regard to the fact that the appellant had been content to require the girls to come to give evidence in court and re-live their experiences." He observed that this was a material misdirection, and continued:

"The same sheriff (as I understand it) made a similar error in the case of Richard Rae. The error was brought under review in Mr Rae's appeal. If nothing else rendered the present appeal arguable then this surely does."

On the morning of the first hearing the petitioner lodged the same sheriff's report to the High Court in respect of Mr Rae's note of appeal against sentence. In that report the sheriff said that it was

"an aggravating feature of the case that by withholding his pleas of guilty until such a late stage (on the third day of the trial) the appellant had been prepared to put the girls through the ordeal of giving their evidence."

Mr Shead acted for Mr Rae in his appeal, and he informed me that the appeal court criticised that observation. Although no opinion was issued and the proceedings were not recorded, it was Mr Shead's impression that the appeal court took that factor into account, along with others, when reducing Mr Rae's sentence. Mr Shead submitted that the Commission failed to take this relevant factor into account in its decision. This was further evidence of an obviously arguable error of law on the part of the sheriff which alone should have ensured leave to appeal, and thus the Commission should have referred the petitioner's case to the High Court.

[13 ] So far this submission falls into much the same category as the other submissions which have been rejected for the reasons given above. However Mr Shead developed a further submission related to Mr Rae's case which requires separate consideration. He submitted that the Commission should have investigated the circumstances of Mr Rae's case and then made specific reference to it. The Commission's failure to do this amounts to unlawful discrimination against the petitioner and a breach by the Commission of the petitioner's article 14 rights under ECHR. Mr Shead referred to a decision of the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30.

[14] In response Mr Moynihan explained that the Commission took into account Mr Shead's comments about the Rae case set out in his opinion. No opinion was issued in the Rae case. When preparing answers to the petition Mr Moynihan searched for the case of Rae without success. Enquiries were then made of the agents for the petitioner and the day before the first hearing the report in the Rae case was produced. The report now before the court was not before the Commission, hence Mr Shead couched his submission in terms of a duty to investigate. Mr Moynihan submitted that the short and vague passage in Mr Shead's opinion was an insufficient foundation for such a duty. In any event it cannot be concluded that had the sheriff's report in Rae been before the Commission it is likely that the outcome would have been different. The Commission did address its mind to the sheriff's observations concerning the petitioner's decision to go to trial. That passage had not been the subject of comment by the petitioner's previous counsel in her opinion, nor by the sifting judges. The Commission was entitled to take the view that it was an incidental observation, albeit one that should not have been made. In any event, the critical issue for the Commission remained whether the sentence imposed was excessive in all the circumstances. Further the comments of the sheriff in Rae are distinguishable from those in the present case. In Rae the sheriff referred to the relevant feature as an aggravation. There was also reliance upon instructions to Mr Rae's agents to challenge the character of the complainers. It cannot be concluded that the Rae report is material to a proper consideration of the petitioner's case, nor that had it been before the Commission it would have made a difference. Nothing relating to the Rae case is relevant to the Commission's decision that the four year sentence imposed on the petitioner was not excessive and hence that it was not satisfied that a miscarriage of justice may have occurred. As to article 14 of ECHR, it outlaws discrimination on certain specified grounds, such as sex, race, colour etc. Even if it can be said that the petitioner has been treated differently from Mr Rae, and that this is the responsibility of the Commission, that does not amount to unlawful discrimination. Reference was made to the decision of an Extra Division in DJS v The Criminal Injuries Compensation Appeal Panel and Another 2007 SLT 575. As to the decision in Ghaidan, that was a case where section 3 of HRA required an extended interpretation of the word "spouse" in the relevant legislation to cover a same sex partner. Nothing of that nature arises in the present case.

[15 ] So far as the issues outlined above relating to Mr Rae's case are concerned, suffice to say that I am satisfied that the petitioner's submissions are to be rejected for all of the reasons given by Mr Moynihan.

Decision
[16 ] Given that there was a degree of urgency in the issuing of this opinion, some parts of it are in more summary form than might otherwise have been the case.

However, I have had no real difficulty in the overall result, namely that the respondent's second plea-in-law should be upheld and the petition dismissed. In these circumstances the petitioner's motion for interim liberation does not arise. In any event I doubt its competency, given that I previously refused an identical motion; that it would trespass on the jurisdiction of the High Court; and that had the Commission's decision been quashed, the court cannot pre-judge the outcome of its reconsideration of the matter. Also, in the absence of any intimation of the motion to the Lord Advocate, it is doubtful that the court could have sufficient information before it to form a proper view on the public interest aspects of the liberation of the petitioner.

Postscript
[17 ] Before leaving this matter I should mention one curious feature of the case. Until very recently all parties, and the sheriff, were proceeding upon the basis that he imposed an extended sentence of eight years upon the petitioner, with a punishment part of four years imprisonment. However during the first hearing the petitioner produced a letter from the sheriff clerk at Arbroath to the Scottish Prison Service dated 20 February 2006 which indicates that the minutes of the case and the warrant of incarceration show that only a period of four years' imprisonment was imposed. The sheriff clerk had checked the court papers, listened to the tape recording of what the trial judge said at the time, and spoken to the sheriff, who accepted that he made a mistake when referring to an extended sentence of eight years in his report to the High Court. Standing this, the submissions made by Mr Shead concerning the arguability of an appeal against an extended sentence are academic. In any event had the matter arisen, I would have preferred Mr Moynihan's submissions to the general effect that the sheriff had sufficient information before him to permit such a sentence, not least the report from Dr Linda Graham.