Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 13
P957/12	OPINION OF LORD PENTLAND in the Petition of GRAHAM GORDON Petitioner; for Judicial Review of a decision of the Scottish Criminal Cases Review Commission not to refer his case to the High Court in terms of section 194B of the Criminal Procedure (Scotland) Act 1995 ________________

Petitioner: K Stewart Q.C.; Drummond Miller LLP

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

24 January 2013

Introduction

[1] This petition for judicial review arises from the latest in a series of unsuccessful attempts by Mr Gordon to overturn his conviction for rape in 2002. The case came before me at a first hearing. The respondents, the Scottish Criminal Cases Review Commission, had lodged answers to the petition. The petition seeks reduction of the respondents' decision, communicated to the petitioner in statements of reasons issued in January and April 2012, not to refer his case to the High Court of Justiciary. The petitioner also seeks an order requiring the respondents to reconsider their decision. At the first hearing, senior counsel for the petitioner moved me to grant decree of reduction and an order for reconsideration. Senior counsel for the respondents moved me to refuse the petition.

The petitioner's conviction and subsequent procedure

[2] The prolonged history of the criminal proceedings against the petitioner and the involvement of the respondents in the case may be summarised as follows.

[3] Following a trial at Stonehaven High Court between 30 August and 5 September 2002, the petitioner was convicted by majority verdict of an offence of rape committed on 12 August 2001 in Aberdeen. It is important to note that the petitioner did not give evidence at the trial. Instead, he relied (as he was entitled to do) on the contents of a police interview, in which he admitted having had sexual intercourse with the complainer, but maintained that it had been consensual. The petitioner had attended at Bucksburn police station on a voluntary basis, but it is clear that he was interviewed under caution and in the capacity of a suspect for the offence of rape. In accordance with the law as it was then understood, the petitioner was not given the opportunity to take legal advice before being interviewed. Nor was he accompanied by a lawyer during the interview; again this was in line with normal practice at the time. On 26 September 2002 the petitioner was sentenced to 5 years' imprisonment in respect of the rape conviction.

[4] The petitioner appealed against his conviction on a number of grounds: defective representation; oppression; prejudicial pre-trial publicity; lack of corroboration in relation to mens rea; and misdirection by the trial judge. On 29 September 2004 the appeal against conviction was refused.

[5] On 14 March 2005 the petitioner applied to the respondents for review of his conviction on various grounds, namely prejudicial pre-trial publicity; the effect of the change in the law of rape between the incident and the trial; sufficiency of evidence; misdirection on the law of rape; failure by the Crown to disclose that the complainer's clothing had been seized by the police; police misconduct; failures by the police in relation to the investigation of the incident; the gathering of evidence; and the disclosure of evidence. On 2 April 2007 the respondents decided to refer the case to the High Court because they believed that a miscarriage of justice might have occurred as a result of the "cumulative effect of Grampian Police enquiry errors and other irregularities". The reference was also made on the grounds that the Crown had failed to disclose to the defence a statement from the complainer and because the respondents believed that they had uncovered certain fresh evidence. On 15 June 2007 a note of appeal was lodged, based upon the respondents' statement of reasons. Over the following two years a number of procedural hearings took place before the criminal appeal court. In the course of this period the petitioner dispensed with the services of two sets of solicitors and counsel. The extensive procedural history of the appeal is explained in detail in an opinion by Lord Carloway dated 24 April 2009 (2009 SCCR 570). On that date, the court appointed a hearing on the three grounds of appeal reflecting the grounds of the respondents' referral.

[6] The petitioner presented the appeal himself at a hearing between 26 and 28 January 2010, his legal representatives having withdrawn from acting for him shortly before the hearing. On 6 May 2010 the appeal was refused (2010 SCCR 589). On 28 May 2010 the petitioner's motion for leave to appeal to the Supreme Court was refused.

[7] On 7 May 2011 the petitioner applied to the respondents for a second review of his conviction on the basis of a statement provided by a forensic scientist, Professor A D Barclay, dated 21 January 2010. The statement expressed the opinion that there was evidence that a pair of trousers seized by the police were not those worn by the complainer at the material time. The respondents accepted the case for review on that sole ground. In August 2010 the petitioner provided the respondents with an opinion of counsel referring to the pending decision in Cadder and asking that this point be included in his application. On 29 October 2010, three days after the Supreme Court's decision in the case of Cadder was issued (Cadder v HMA 2011 UKSC 13), the petitioner wrote to the respondents confirming that he wished them to consider Cadder "taking cognisance of the cumulative effect which may have affected my right to a fair trial as a whole, including the way I was briefed by police prior to the interview and this material being oppressively used by the advocate depute in trial and in summing up to the jury." In November 2010 and again in August 2011 the petitioner expanded on his submissions in relation to Cadder. The respondents decided to defer consideration of the petitioner's arguments insofar as based on Cadder until the outcome was known of several pending decisions of the Supreme Court on the further implications of the decision.

[8] On 25 February 2011, following a full review of the issues arising from Professor Barclay's statement, the respondents decided not to refer the petitioner's case to the High Court. They issued a statement of reasons in relation to that aspect of matters. In response the petitioner made further representations to the respondents. Then on 30 September 2011 the respondents issued a supplementary statement of reasons finally deciding not to refer the petitioner's case to the High Court on the issues relating to Professor Barclay's statement. That left for consideration by the respondents the petitioner's contention that his case should be reconsidered in the light of the decision of the Supreme Court in Cadder.

[9] In a statement of reasons issued in January 2012, the respondents concluded, having fully considered the Cadder point, that although a miscarriage of justice may have occurred in respect of the petitioner's conviction, it was not in the interests of justice to refer his case again to the High Court. The respondents confirmed this decision in a supplementary statement of reasons they issued in April 2012. On 10 September 2012 the petitioner lodged the present petition.

The respondents' reasoning on the interests of justice test
[10] At the first hearing the parties' submissions focussed on the reasoning expressed in the respondents' statement of reasons of January 2012 and in the supplementary statement of reasons issued in April that year. It will, therefore, assist if I now refer to the pertinent parts of those documents.

[11] In the January 2012 statement the respondents accepted that there may have been a miscarriage of justice at the petitioner's trial because there had been insufficient evidence without the admission made in his police interview that he had had sexual intercourse with the complainer. That admission constituted the only source of evidence corroborating the complainer's account that she had been vaginally penetrated by the petitioner's penis. There was no other evidence, apart from the admission at interview, capable of providing support for or confirmation of the complainer's evidence that sexual intercourse had occurred. There was, for example, no DNA or other scientific evidence. The respondents proceeded on the basis that if Cadder had applied at the time of the petitioner's interview, evidence as to what the petitioner said during the interview would have been inadmissible at the trial. That was not the end of the matter, however. Before the respondents may refer a case to the High Court they must believe not only that a miscarriage of justice may have occurred, but also that it is in the interests of justice that a reference be made. The test for the respondents is a two-fold one and, as such, they must decline to make a reference to the High Court, even where there may have been a miscarriage of justice, if they believe that a reference would not be in the interests of justice (M v SCCRC 2006 SCCR 433, at paragraph 54). In Cochrane v HMA 2006 SCCR 213 at paragraph 9 the High Court suggested that the clear intention of Parliament was that, in relation to redress by way of the respondents' cumulative test, a wider issue than the possibility of a miscarriage of justice should be addressed. In considering the interests of justice, the respondents have a broad discretion which they may exercise after they have had regard to all of the factors which they consider are relevant to the justice of the situation (Raza v SCCRC 2007 SCCR 404 at paragraph 7).

[12] One of the matters to which the respondents must have regard in addressing the interests of justice is the need for finality and certainty in the determination of criminal proceedings (section 194C(2) of the Criminal Procedure (Scotland) Act 1995, as amended by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010). I shall have more to say about this later.

[13] In their January 2012 statement of reasons, the respondents addressed the interests of justice test in detail. It will assist if I quote their reasoning.

"19. In the Commission's view, the amount of time that has passed since the applicant was convicted is significant. This factor weighs against it being in the interests of justice to refer his case on the basis of Cadder. In light of the various challenges the applicant has made to his conviction, the Commission acknowledges that he has never acquiesced in his conviction. On the other hand, whilst so far as the Commission is aware the applicant has been consistent in his denial that he raped the complainer on the night in question, the Commission notes that at no stage has the applicant disputed the veracity of what he said to the police or suggested that the crucial admissions he made to them i.e. that he had sexual intercourse with the complainer, were anything other than true; indeed he relied upon the contents of his police interview in order to present his defence of consent, electing not to give evidence at trial. In the Commission's view, this is also an important factor in considering the interests of justice, and weighs against the Commission referring his case to the High Court on the basis of Cadder.

20. In considering the need for there to be finality in criminal proceedings, the Commission notes that the applicant takes issue with the manner in which he was 'detained' and questioned by the police on 13 August 2001 and with the use made by the Crown at trial of the evidence of his police interview. The Commission has taken into account the fact that the Crown made considerable use of the applicant's interview not only as corroboration of intercourse having taken place but also to undermine the credibility of the applicant. However, the Commission also notes that no objection was taken at trial to the admissibility of the police interview of 13 August 2001 on these grounds (whereas objection was taken successfully to the admissibility of the applicant's second police interview of 25 October 2001). Furthermore, in the Commission's view, whilst the applicant cannot be criticised for raising a Salduz-type objection only now (see Birnie v HMA [2011] HCJAC 46 at paragraphs 22-30, per the remarks of the Lord Justice Clerk), it is significant that in the course of two full appeals no ground of appeal was directed towards police unfairness in the manner in which the interview was conducted or unfairness by the Crown in the use made of the interview. In the Commission's view, these are also important factors in considering the interests of justice, and weigh against the Commission referring his case to the High Court on the basis of Cadder.

...

22. Taking account of what it considers to be the relevant factors as outlined above, including the need for finality and certainty in the determination of criminal proceedings, the Commission has concluded that it is not in the interests of justice to refer the applicant's case to the High Court for determination.

CONCLUSION

23. Based on the content of this statement of reasons, the Commission believes that, although a miscarriage of justice may have occurred in respect of the applicant's conviction, it is not in the interests of justice to refer his case to the High Court. Accordingly, the Commission has decided not to refer his case to the High Court at this time. As indicated, the Commission will consider any further submissions in the applicant's case, based upon the present grounds of review, and may reconsider its decision ..."

[14] Thereafter the petitioner made further submissions to the respondents. These submissions included an opinion of counsel (Mr Shead) dated 28 February 2012 together with a number of emails, letters and a bundle of other documentation. In summary, the petitioner submitted at this stage that it was in the interests of justice to refer his case to the High Court having regard to the particular circumstances of the case. These were that his legal representatives withdrew from acting shortly before the appeal in January 2010; the High Court refused to adjourn the hearing to enable the petitioner to obtain fresh representation; he was unable in the time available to obtain fresh representation; and he himself drafted and lodged a devolution minute which made no reference to the decision in Salduz v Turkey (2008) 49 ECHR 19 as he did not fully understand the significance of that decision. The petitioner also submitted that he was not competent to address such highly complex legal matters and that he informed the court of this immediately after his legal team withdrew from acting. The petitioner submitted that his appeal was still "alive" as the High Court had not addressed his devolution minute and certain other of his submissions and he was wrongly told by the court that these matters would be dealt with later. In his opinion Mr Shead said that in all the circumstances it might have been anticipated that the High Court would itself have raised the issue of Salduz at the appeal. Counsel also set out what he saw as the various possible outcomes if the point had been raised. Mr Shead questioned whether the petitioner's case fell to be viewed as a "closed" case in the sense in which those words were used by Lord Hope in Cadder and whether the observations of the Supreme Court on closed cases should be interpreted as absolutely as might appear on a first reading, having regard to Kelly v HMA 2012 SCCR 86.

[15] In its consideration of the further arguments advanced by the petitioner, the respondents said the following in their supplementary statement of reasons issued in April 2012:

"7. In considering whether the applicant's case is a closed case in the sense that expression was used by Lord Hope in Cadder, the Commission has had regard to the case of Kelly in which the court was prepared 'for the purposes of this decision' to proceed on the basis that the following observation by Lord Hope at paragraph [62] in Cadder need not be treated as absolute and that there may be circumstances where intimation to appeal has not been lodged timeously which would justify extending the time:

"... in light of these authorities I would hold that convictions that have become final because they were not appealed timeously, and appeals that have been finally disposed of by the High Court of Justiciary, must be treated as incapable of being brought under review on the ground that there was a miscarriage of justice because the accused did not have access to a solicitor while he was detained prior to police interview."

The Commission considers that Kelly falls to be distinguished from the applicant's case in that it concerned an application under section 111(2) of the 1995 Act for an extension of the period of time within which to lodge an intimation to appeal against conviction and the court's concession was expressly limited to the decision in that application. In the Commission's view, the High Court in its Opinion of 6 May 2010 fully addressed the grounds of appeal as contained in the Note of Appeal and disposed finally of the appeal. Therefore the only mechanism by which the applicant's case may be reopened is by a reference from the Commission."

[16] The respondents' supplementary statement of reasons went on to say the following:

"9. As stated at paragraph 20 of the statement of reasons, the Commission considers that the applicant cannot be criticised for raising a Salduz-type objection only now (see Birnie v HMA [2011] HCJAC 46). Therefore, in the Commission's view, the reasons why the applicant did not raise Salduz at his second appeal and the possible outcomes if he had raised that matter are not relevant to the issue of whether it is now in the interests of justice to refer his case to the High Court on the ground of Cadder.

10. For the foregoing reasons, and for the reasons stated at paragraphs 18 to 22 of the statement of reasons, taking account of what it considers to be the relevant factors, including the need for finality and certainty in the determination of criminal proceedings, the Commission remains of the view that it is not in the interests of justice to refer the applicant's case to the High Court. In particular, the Commission considers that the fact that the applicant has at no stage disputed the veracity of what he said to the police or suggested that the crucial admissions he made to them i.e. that he had sexual intercourse with the complainer were anything other than true, together with the fact that he relied upon the contents of his police interview in order to present his defence of consent, electing not to give evidence, are factors which militate against it being in the interests of justice for the Commission to refer his case to the High Court on the basis of Cadder."

The statutory scheme

[17] This is to be found in part XA of the Criminal Procedure (Scotland) Act 1995, as amended ("the 1995 Act"). Section 194B(1) provides inter alia as follows:

"The (respondents) on the consideration of any conviction of a person ... on indictment ... may, if they think fit, at any time, and whether or not an appeal against such conviction ... 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 ... of this Act."

[18] Section 194C of the 1995 Act provides as follows:

"(1) The grounds upon which the (respondents) 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.

(2) In determining whether or not it is in the interests of justice that a reference should be made, the (respondents) must have regard to the need for finality and certainty in the determination of criminal proceedings."

[19] Section 194(2) was inserted with effect from 30 October 2010 by sections 7(3)(b) and 9 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. This was legislation passed by the Scottish Parliament in the wake of the Supreme Court's decision in Cadder.

The petitioner's arguments

[20] Senior counsel for the petitioner argued firstly that the respondents had erred in paragraph 19 of their January 2012 statement of reasons by treating the passage of time since the conviction as significant. It was contended that the respondents' approach was flawed because they had grouped the Cadder point together with the procedural history of the petitioner's case. The respondents should, it was argued, have considered the Cadder point entirely on its own. All the other factors referred to in paragraph 19 were, at best, neutral. The same applied to the various considerations mentioned in paragraph 20. The respondents should have left all of them entirely out of account. The passage of time was not significant in the circumstances of the present case because Cadder had only been decided in October 2010, long after the petitioner was convicted. Until the Supreme Court's decision in Cadder the petitioner could not have had any realistic hope of challenging his conviction on the ground that he was interviewed without legal representation. The lengthy procedural history of the case was irrelevant. This line of argument was said to be underpinned by the reasoning of the Lord Justice-Clerk (Lord Gill) in Jude v HMA 2011 JC 252 at paragraphs [27] to [30] where his Lordship accepted that it was not until after the decision of the Supreme Court in Cadder that an accused person could have been expected to challenge the use of evidence obtained at an interview on the ground of lack of legal representation. In what I understood to be a secondary branch of his first argument, senior counsel argued that the respondents should at least have given greater weight to the fact that Cadder was only decided in October 2010.

[21] Secondly, senior counsel for the petitioner argued that the respondents should have given greater weight to what he described as the petitioner's poor performance during his police interview. He referred to paragraphs [26], [31] and [33] of the opinion of the court in his appeal against conviction (2010 SCCR 589); in the first of these paragraphs the court observed that not all members of the jury were likely to have been impressed by what the interview revealed about the petitioner's attitude towards women in general and the complainer in particular. Senior counsel submitted that the interview must have given an impression of flippancy, coarseness, indelicacy and selfishness on the part of the petitioner. The appeal court had, he said, been very much aware of the significance of the interview for the Crown's case and the adverse impact it would have had on the jury so far as the petitioner was concerned. The argument was that the respondents should have borne all this in mind, particularly since the presence of a lawyer was necessary to ensure respect for the interviewee's right not to incriminate himself. Reference was made to paragraph [35] of Lord Hope's judgment in Cadder.

[22] The next argument advanced on behalf of the petitioner at the first hearing was that the respondents ought to have lent more weight to the fact that at the time when the appeal against conviction was heard in early 2010 it had been widely understood that there was the potential for a fundamental change in the law because of the pending appeal in Cadder. Senior counsel submitted that the respondents ought to have identified that the appeal court should have advised the petitioner to seek an adjournment of the appeal until the Supreme Court had issued its decision in Cadder. That had been the view of Mr Shead in his opinion. The petitioner had understood, from what was said during the appeal hearing, that he would have the opportunity to advance argument at a later stage in support of a devolution issue minute he had lodged, although it was accepted that this had not raised the issue of the admissibility of his police interview.

[23] Senior counsel then moved on to examine certain parts of the supplementary statement of reasons issued in April 2012 and, in particular, the respondents' approach to the need for there to be finality in criminal proceedings. He said that the petitioner was not seeking to garner any windfall benefit from the change in the law brought about by the Supreme Court's decision in Cadder. Unlike the applicant in the Irish Supreme Court case of A v Governor, Arbour Hill Prison [2006] IESC 45, the petitioner had maintained his innocence throughout. Reference was made to the view expressed by the Lord Justice General (Hamilton) in Kelly v HMA supra that Lord Hope's observations at paragraph [62] of Cadder need not be treated as absolute. Kelly was authority for the view that there might be circumstances where time to appeal on the Cadder point should be extended, notwithstanding Lord Hope's observations.

[24] Senior counsel for the petitioner submitted that the circumstances of the present case were exceptional and that the respondents should have recognised their exceptional character. The exceptional circumstances were said to be these:

i. The petitioner had represented himself at the hearing of his appeal;

ii. At the time of the appeal hearing it was widely understood that the Supreme Court's decision in Cadder had the potential to have a highly significant impact on the criminal justice system;

iii. The closeness in time between the decision in the appeal (6 May 2010) and the Supreme Court hearing in Cadder (24-26 May 2010); this should have prompted the appeal court to raise with the petitioner the possible availability of a Cadder argument; and

iv. The fact that the petitioner had lodged a devolution issue minute, although this was not argued and did not raise a Cadder issue.

[25] Finally, after some discussion at the first hearing, senior counsel for the petitioner made it clear that he was no longer seeking to place any reliance on article 6 of the European Convention on Human Rights. There are certain averments on this in the petition, but counsel advanced no argument to support them at the first hearing.

The respondents' reply

[26] In response to the petitioner's various submissions, senior counsel for the respondents said that the issues concerned the respondents' statutory discretion under section 194C(2) of the 1995 Act. The use of the word "believe" in sub-section (1) was significant because it served to emphasise that the respondents' duty was to form a reasonably-based opinion. In the final analysis, the petitioner's arguments amounted to no more than saying that he disagreed with the outcome of the respondents' decision-making.

[27] The respondents argued that the principle of finality and certainty was of the utmost importance in the present case. The principle had been enshrined in statute following the Supreme Court's decision in Cadder. In Cadder the Supreme Court had said that for all so-called closed cases, it was a matter for the respondents to decide whether a case should be referred back to the appeal court. The amendment to the statute had been enacted in the light of those observations. In Lang & Hastie v United Kingdom (2012) 55 EHRR SE7 the fourth section of the Strasbourg Court emphasised the importance of the principle of legal certainty "the Supreme Court properly sought to introduce when it limited the effect of its ruling in Cadder" (paragraph 32). Reference was made also to Toal v HMA [2012] HCJAC 123 at paragraphs 108 and 116 and to Beggs v The United Kingdom (6 November 2012 at paragraph 266).

[28] Senior counsel observed that counsel for the petitioner, in his submissions, sought merely to attack the weight given by the respondents to certain factors. But questions of weight were matters for the respondents in the exercise of their statutory discretion. I was reminded of the well-known observations of Lord Hoffman in Tesco Stores Ltd v Environment Secretary [1995] 1 WLR 759 at 780F-G and of what Lord Collins of Mapesbury said on the same matter in R (Sainsburys Supermarkets Ltd) v Wolverhampton City Council [2011] 1 AC 437 at paragraph 70. The petitioner accepted that the passage of time was a relevant consideration. He challenged only the weight accorded to that factor by the respondents in their decision-making. This was fundamentally misconceived. From the approach taken by the appeal court in the references by the respondents in the cases of RM and Edward Gallagher [2012] HCJAC 121 at paragraph [21] it was clear that the passage of time since the date of a conviction was to be regarded as a material consideration. The right approach in a case such as the present one was to identify what had really been at issue in the trial. This could be seen from the decision in the appeal by RM (RMM v HMA [2012] HCJAC 157; see also RM and Edward Gallagher supra at paragraphs [24] and [27]). In the present case this was exactly the reasoning and approach taken by the respondents. They did not criticise the petitioner for taking the Cadder point at a late stage, but they attached importance to the fact that at the trial the petitioner at no time disputed the truth of what he had said to the police and indeed relied on his interview for presentation of his defence of consent. It was entirely legitimate for the respondents to attach importance to the realities of what had taken place at the trial and not to approach matters now on a theoretical basis, which disregarded the real issues in the case.

[29] Senior counsel went on to submit that it was unrealistic for the petitioner to suggest that his appeal should have been delayed because of the possibility that the Supreme Court might change the law in Cadder. There was an inherent possibility that this might happen in any appeal.

[30] Finally, senior counsel for the respondents noted that in Raza v Scottish Criminal Cases Review Commission 2007 SCCR 403, it was held that there was nothing in article 6 ECHR which would compel the respondents to refer a case to the appeal court. In any event, article 6 did not apply to proceedings concerning a failed request to re-open a case (Vanyan v Russia 15 March 2006, paragraph 56; Stepanyan v Armenia 27 January 2010, paragraph 30).

The petitioner's final submissions

[31] In a short reply, senior counsel for the petitioner reiterated that the special feature of the present case was that the petitioner had been unrepresented at his appeal. It should also be recalled, counsel said, that the petitioner continues to be affected by his conviction because he is subject to the notification requirements imposed on him as a sex offender.

Decision

[32] In my opinion, all the grounds of challenge relied on by the petitioner in the present case are unsound and fall to be rejected. The principle of finality and certainty, now enshrined in the applicable legislation, is of particular importance in the circumstances of the present case. The Irish Supreme Court considered the scope and effect of that principle in detail in Arbourhill Prison supra in judgments which were acknowledged by Lords Hope and Rodger in Cadder to be of considerable importance. Murray C J said the following at paragraph 85:

"The application of a principle of absolute retroactivity ... in the field of criminal law would render null and of no effect final verdicts or decisions ... which at the time had been presumed or acknowledged to be constitutional and otherwise had been fairly tried. Such unqualified retroactivity would be a denial of justice to the victims of crime and offend against fundamental and just interests of society.

In addition to causing injustice it would undermine one of the fundamental objectives of the administration of justice, namely finality and certainty in justiciable disputes. As Hamilton C J observed in Greendale Developments Ltd (No 3) [2000] 2 I.R. 514 at p.527: 'The finality of proceedings both at the level of trial and, possibly more particularly, at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly be breached.'

In my view when an Act is declared unconstitutional a distinction must be made between the making of such a declaration and its retrospective effect on cases which have already been determined by the courts. This is necessary in the interests of legal certainty, the avoidance of injustice and the overriding interests of the common good in an ordered society."

[33] At paragraph 281 Geogheghan J said the following:

"It cannot have been the intention of the draftsmen of the Constitution and more properly of the Oireachtas and perhaps more properly still of the people that if a statutory provision creating an offence was found to be unconstitutional, every past conviction and sentence, perhaps going back a large number of years were ipso facto nullities ... If such was the devastating effect of a declaration of unconstitutionality in all cases, it would fly in the face of common sense, would be manifestly unjust and would be contrary to any good order in a civilised society."

[34] I note that in his judgment in Cadder (at paragraph 102) Lord Rodger of Earlsferry said that he emphatically agreed with the views expressed by Geogheghan J in the passage I have just quoted.

[35] With these powerful observations in mind, I turn to examine the various arguments advanced on behalf of the petitioner at the first hearing.

[36] In my opinion, there is no substance in the petitioner's first line of argument to the effect that the respondents were wrong to take account of the passage of time since his conviction or that they attached too much weight to this factor. In a case where an applicant to the respondents seeks to have his conviction reconsidered because of a change in the law, the interests of justice demand that full account should be taken of the time which has passed since the conviction was secured. This is because of the vitally important general principle that convictions should not be lightly disturbed long after conclusion of the trial and normal appeal processes, even though the law may subsequently have changed in favour of a convicted person. Adherence to this principle is in the interests of society and particularly in the interests of the victims of crime. In general, the longer it has been since the applicant was convicted the more difficult it will become for the respondents to say that it is in the interests of justice for the conviction to be reconsidered by the appeal court. This approach attaches an appropriate margin of respect to the fact that there has been a conviction and serves also to promote finality and certainty in criminal cases.

[37] It is true, of course, that the Supreme Court's decision in Cadder was issued some years after the petitioner was convicted, but this cannot mean that the passage of time since the conviction should simply be left out of account, as the petitioner sought to argue at the first hearing. It remains an important consideration; in some cases it may be the most important consideration. The weight to be given to it was a matter for the respondents in the exercise of the discretion conferred upon them by statute.

[38] As to the other factors referred to in paragraphs 19 and 20 of the statement of reasons, I consider that the respondents were entitled to have regard to each of these; they all seem to me to be of obvious relevance in the context of evaluating where the interests of justice lie. For example, it was clearly relevant for the respondents to recognise that the petitioner has never disputed the truth of what he told the police in his interview and, in particular, that he has never suggested that he did not have sexual intercourse with the complainer. What he now seeks to do is to take advantage of a subsequent change in the law rendering inadmissible evidence which was not in dispute at the trial, videlicet evidence that he admitted having intercourse with the complainer. It would, in my opinion, be repugnant to the interests of justice if the petitioner were now to be permitted to invoke Cadder for the purpose of ruling out uncontested evidence that was essential to the technical sufficiency of the Crown case at his trial. To do so would allow the petitioner to transform what was a non-issue at the trial into an issue of critical importance years later. That would run counter to the principle of finality and certainty that is central to the fair working of the criminal justice system.

[39] I also consider that it was plainly important for the respondents to acknowledge that in the course of two full appeals against his conviction the petitioner never challenged the fairness of the manner in which the police conducted the interview. Nor did he seek to argue on appeal that the use made of the interview by the Crown at his trial was unfair. For these various reasons, I consider that there is no substance in the petitioner's first line of argument.

[40] The second point taken by the petitioner is also without merit, in my opinion. The submission was that the respondents should have given greater weight to the tone of the interview and to the manner in which the petitioner expressed himself during the interview. But questions of weight are quintessentially matters for the decision-maker and cannot be opened up by judicial review. In any event, I doubt whether it would have been appropriate for the respondents to indulge in speculation about the impression or impact which the interview may have had on individual members of the jury. Having elected to rely on his police interview to present his consent defence, it would be unjust for the petitioner now to be allowed to say that the interview should be disregarded because of the way he chose to express himself in the course of it. Moreover, there is no reason to suppose that the respondents were not themselves well aware of the content and tone of the interview. So it cannot be said that they have, in some sense, left a relevant consideration out of account in this regard.

[41] The next submission made on behalf of the petitioner was also advanced on the basis that the respondents had given insufficient weight to a particular aspect of matters, namely the fact that the appeal court did not advise the petitioner to seek an adjournment of the appeal until the Supreme Court had issued its decision in Cadder. Insofar as the argument depends on a question of weight, it falls to be rejected as outwith the scope of judicial review. But in any event, the point appears to me to be unrealistic. Particularly in view of the unsatisfactory procedural history of the case, there was never any prospect that the appeal court would themselves suggest to the petitioner that he should seek an adjournment of the appeal.

[42] As to the petitioner's challenge to the supplementary statement of reasons, I am unable to see merit in any of the points he sought to raise. It seems to me that the reasoning in paragraph 10 of that document cannot be faulted. It succinctly draws together the main strands of the respondents' thinking in what, to my mind, is a convincing assessment of where the interests of justice lie. Thus, the respondents reiterate that the fact that the petitioner has never disputed the truth of what he told the police and the fact that he relied on the interview to present his defence of consent are considerations pointing strongly against it now being in the interests of justice to refer the case on the Cadder point. In my opinion, that was a view which it was entirely open to the respondents to come to. But I would myself go further and say that it was, in the circumstances of the case, clearly the correct conclusion for them to reach.

[43] Finally, the petitioner sought to identify certain features of the case as exceptional and to argue that the respondents had failed properly to understand this. In my view, this is groundless. When one looks at the respondents' reasoning in the statement of reasons and the supplementary statement of reasons, it is clear that they have correctly understood all the material features of the case and have adopted a reasonable and properly balanced approach in discharging their statutory duties. In the final analysis, the petitioner's various submissions amounted to no more than expressing disagreement with the respondents' judgments and their exercise of the statutory discretion conferred on them. That does not provide a valid basis for granting judicial review.

[44] As I have explained, at the first hearing senior counsel for the petitioner did not seek to support the averments in the petition insofar as they referred to convention rights. In my view, he was correct to take this stance. It is clear that article 6 of ECHR does not apply to an application to the respondents; nothing that they do or omit to do in the performance of their statutory duties can be said to concern the determination of a criminal charge (Vanyan v Russia supra; Stepanyan v Armenia supra).

[45] It follows that the petition must be refused. I have accordingly sustained the respondents' pleas-in-law and repelled the petitioner's pleas. I have reserved all questions of expenses.