Act: Coll; George Mathers & Co, Aberdeen

Alt: Moynihan QC; Scottish Criminal Cases Review Commission

6 November 2013

[1] In this reclaiming motion the reclaimer seeks to overturn the decision of the Lord Ordinary of 24 January 2013 and to have the court remit the issue contained in section 194C(2) of the Criminal Procedure (Scotland) Act 1995, namely, whether it is in the interests of justice that this matter should be referred to the High Court, to the Scottish Criminal Cases Review Commission for reconsideration.

[2] The central feature of the submissions for the reclaimer was that the Commission failed in its statement of reasons, and supplementary statement of reasons, to have proper regard to the need for finality and certainty in the determination of criminal proceedings. That requirement was inserted into section 194C of the 1995 Act by section 7(3)(b) of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 with effect from 30 October 2010. No definition is given in the Act of the term "finality and certainty" and it was submitted for the reclaimer that the Commission required to explain what it understood by this term and to give adequate reasons to justify its decision that it was not in the interests of justice that a reference to the High Court should be made. We do not consider that there is any substance in this submission. The term "the need for finality and certainty in the determination of criminal proceedings" is not a term which requires explanation or elucidation by this court. It is a term which may be readily understood.

[3] The submissions for the reclaimer focused, to a significant extent, on what Mr Coll described as "the bridging of the gap" between the date on which this case was finally disposed of on appeal, namely 6 May 2010, and the issuing of the Supreme Court's decision in Cadder v HM Advocate No 2 [2010] UKSC 43: 2011 SC (UKSC) 13. However, we do not consider that this gap is of central importance in the issue which the Commission had to decide. The important point is that this case had been finally concluded, or to use the terminology of Lord Hope of Craighead in Cadder "it had become closed", some time before the issuing of the Supreme Court's decision in Cadder. The precise length of that time is, we consider, not of paramount importance. The important feature is that the case had become closed. In these circumstances, we consider that the observations of Lord Rodger of Earlsferry, at paragraphs 101 to 103 of Cadder, are relevant to this case. Lord Rodger quoted, with approval, the opinion of Murray CJ at paragraphs 36 to 38 of A v The Governor of Arbour Hill Prison [2006] 4IR 88 and at paragraph 102 he gave examples of changes to our Scottish laws or procedures, such as the cases of Smith v Lees 1997 SLT 690 and Thompson v Crowe 1999 SLT 1434. He went on to observe:

"So, here, the court's decision as to the implications of Art 6(1) and (3)(c) of the Convention for the use of evidence of answers to police questioning has no direct effect on convictions in proceedings that have been completed. To hold otherwise would be to create uncertainty and, as Murray CJ rightly observes, cause widespread injustices. And the Strasbourg court has pointed out that the principle of legal certainty is necessarily inherent in the law of the European Convention: In A v Governor, Arbour Hill Prison, (para 286) Geoghegan J said that he was 'satisfied ... that it would be wholly against good order if convictions and sentences which were deemed to be lawful at the time they were decided had to be reopened.' I emphatically agree."

That approach was endorsed by the European Court of Human Rights in Lang and Hastie v The United Kingdom (2012) 55 EHRR SE7, particularly at paragraph 32. We do not consider that Mr Coll's focus on the period during which the case has been closed before the decision in Cadder was issued is justified. We also consider that the attack on the Commission's reasoning, with regard to the interests of justice, is without foundation. The Commission did not fall into the error of treating the case as if it had become closed in 2002 when the reclaimer was convicted. It clearly stated that the case became closed on 6 May 2010, but it had regard to the whole procedural history and circumstances of the case since 2002. We understood that Mr Coll accepted that this approach was correct. The Commission gave the core of its reasoning at paragraph 19 of its statement of reasons of January 2012 and paragraphs 8, 9 and 10 of its supplementary statement of reasons of April 2012. We can detect no error of law in the way in which the Commission approached the exercise of its discretion in terms of section 194C of the 1995 Act, nor is there anything in these paragraphs of its statements of reasons which suggest that the Commission erred in law, failed to take account of a relevant consideration, took

account of an irrelevant consideration or exercised its discretion perversely. Similarly, we can find no error of law in the Lord Ordinary's determination of the issues before him. For these reasons, this reclaiming motion must be refused.