APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Menzies Lord Wheatley	[2012] HCJAC 121 Appeal No: XC797/11 XC40/12 OPINION OF THE COURT delivered by the LORD JUSTICE GENERAL in the References by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the cases of (1) RM; and (2) EDWARD WILLIAM GALLACHER _______

For RM: Carroll, McClure; McClure Collins, Glasgow

For Edward William Gallacher: McDonald, Rodger; Philpott Platt & Niblett, Dumbarton

For the Crown: Ms Wade, AD; Crown Agent

25 April 2012

Introduction

[1] The Scottish Criminal Cases Review Commission (the Commission) has referred these cases under Part XA of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). Each reference raises the question whether we should reject it in terms of section 194DA of the 1995 Act.

The relevant legislation

[2] Section 194B(1) of the 1995 Act provides inter alia that the Commission on the consideration of any conviction of a person may, if it thinks fit, at any time, and whether or not an appeal against such conviction has previously been heard and determined by the High Court, subject to section 194DA of the Act, refer the whole case to the High Court and that the case shall be heard and determined, subject to any directions that this court may make, as if it were an appeal under Part VIII of the Act.

[3] The grounds on which the Commission may refer a case to this court are that it believes that a miscarriage of justice may have occurred; and that it is in the interests of justice that a reference should be made (1995 Act, s 194C(1)). In determining that question, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings (s 194C(2)). Where the Commission makes a reference it must give to the court a statement of its reasons for making the reference (s 194D(4)(a)). The grounds for an appeal arising from a reference to this court must relate to one or more of the Commission's reasons for making the reference (s 194D(4A)). Despite that provision, this court may, if it considers that it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds (s 194D(4B)).

[4] Section 194DA provides that where the Commission has referred a case to this court under section 194B, the court may, despite section 194B(1), reject the reference if it considers that it is not in the interests of justice that any appeal arising from it should proceed (s 194DA(1)). In determining that question, the court must have regard to the need for finality and certainty in the determination of criminal proceedings (s 194DA(2)).

The 1997 legislation
The Sutherland Committee

[5] Since the enactment of the Criminal Appeal (Scotland) Act 1926, the law has provided for the referral of possible miscarriages of justice to the Appeal Court. Until 1997 the power to refer was vested in the Secretary of State for Scotland. The report of the Committee on Criminal Appeals and Alleged Miscarriages of Justice (June 1996) (the Sutherland Committee) recommended that there should be a new body, independent of the Executive, to carry out this function. The Committee considered, and rejected, the giving of additional powers to the Appeal Court to carry out its own investigations into potential miscarriages. Its reasons were as follows:

"5.45 ... We doubted whether petitioners or the public would regard it as a satisfactory arrangement that the body which had already refused an appeal should be given the responsibility of considering and investigating whether there were grounds in effect for a further appeal and should then determine it. We did not regard this as a sensible solution in relation to miscarriages of justice."

The Crime and Punishment (Scotland) Act 1997 (the 1997 Act)

[6] The recommendations of the Sutherland Committee were implemented by the 1997 Act. The Act established the Commission. The provisions relating to references by the Commission differed from their current form in three respects. First, section 194C of the 1995 Act, inserted by the 1997 Act, referred to the interests of justice criterion without further qualification. Secondly, the Appeal Court had no discretion to reject a reference. Finally, on the making of a reference the appellant was free to table grounds of appeal whether or not they were raised by the terms of the reference (eg Campbell v HM Adv 2004 SLT 397, at para [49]).

The 2010 legislation

Cadder v HM Adv (2011 SC (UKSC) 13)

[7] In Cadder v HM Adv the Supreme Court decided that the interviewing of a suspect by the police in terms of section 14 of the 1995 Act, which did not allow the suspect to have access to legal advice beforehand, constituted a breach of article 6 of the Convention. At the hearing in that appeal the Lord Advocate invited the Court to limit any ruling that would benefit accused persons so that it had only prospective effect. Lord Hope of Craighead expressed anxiety about the disruption that the court's decision might cause (at para [56]). Had it been open to the Supreme Court to do so, he would have favoured its making the limitation that the Lord Advocate proposed; but section 102 of the Scotland Act 1998 precluded that option (at para [59]). In that context Lord Hope made the following obiter observations:

"60. That is not to say that the principle of legal certainty has no application. On the contrary, I think that there are strong grounds for ruling today, on the basis of this principle and bearing in mind the fact that the Salduz objection could have been raised at any time after the right of challenge on Convention grounds became available, that the decision in this case does not permit the re-opening of closed cases. Cases which have not yet gone to trial, cases where the trial is still in progress and appeals that have been brought timeously ... but have not yet been concluded will have to be dealt with on the basis that a person who is detained must have had access to an enrolled solicitor before being questioned by the police, unless in the particular circumstances of the case there were compelling reasons for restricting this right. As for the rest, I would apply Murray CJ's dictum that the retrospective effect of a judicial decision is excluded from cases that have been finally determined: A v The Governor of Arbour Hill Prison
[2006] IESC 45, [2006] 4 IR 88, para 36.

61. That was a case where the statutory provision under which the applicant was convicted was later declared by the Irish Supreme Court to be unconstitutional. In paras 125-126 the Chief Justice set out the general principle in these terms:

'125 In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is the general principle.

126 I do not exclude, by way of exception to the foregoing general principle, that the grounds upon which a court declares a statute to be unconstitutional, or some extreme feature of an individual case, might require, for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice, that verdicts in particular cases or a particular class of cases be not allowed to stand.'

In para 127 he observed that the applicant, like all persons in his position, could have sought to prohibit prosecution on several grounds including that the section was inconsistent with the Constitution and that, not having done so, they were tried and either convicted or acquitted under due process of law. Once finality is reached in these circumstances, he said, the general principle should apply.

62. The same approach was recently adopted by the Court of Appeal in England in a case where the statute under which the appellants were convicted had not been notified as required by EU law: R v Budimir
[2010] EWCA Crim 1486. Reference was made in that case to Marckx v Belgium and Walden v Liechtenstein, as well as to Murray CJ's observations in A v Governor of Arbour Hill Prison. In the 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 the police interview. The Scottish Criminal Cases Review Commission must make up its own mind, if it is asked to do so, as to whether it would be in the public interest for those cases to be referred to the High Court. It will be for the appeal court to decide what course it ought to take if a reference were to be made to it on those grounds by the Commission."

[8] Lord Rodger of Earlsferry observed that since 1999 the Scottish courts had dealt with "many thousands of cases" in which the Crown secured convictions by relying, at least in part, on answers given by the accused to questioning by police officers when the accused had not had the opportunity to take legal advice (at para [98]). Lord Rodger also referred with approval to A v The Governor of Arbour Hill Prison (supra). He thought that, as in Ireland, legal developments in Scotland had no effect on "completed cases." That was an aspect of legal certainty that was necessary to prevent widespread injustices. It was inherent in Convention law. These were his conclusions:

"102 ... And that policy is, of course, embodied in section 124 of the 1995 Act which makes interlocutors and sentences pronounced by the appeal court 'final and conclusive and not subject to review by any court whatsoever', except in proceedings on a reference by the Scottish Criminal Cases Review Commission ...

103. The only way, therefore, in which the Court's decision in this case could have any effect on completed cases would be, indirectly, through the mechanism of such a reference by the Review Commission. It is, however, no part of this Court's function, in an appeal to which the Commission is not a party, to comment on the approach that it should adopt in handling any application for such a reference. It is for the Commission to consider where the public interest lies if an application is made to it for a reference to the High Court in a case that was properly conducted according to the law as understood at the time. A fortiori, it is no part of this Court's function on this occasion to comment on the approach to be adopted by the appeal court if the Commission should make a reference in such a case. That would be a matter for the appeal court to determine in the light of the arguments presented to it."

The legislative response to Cadder

[9] The legislation governing references by the Commission acquired its present form by virtue of section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (the 2010 Act). The Act was an emergency response to the Cadder case. The Bill was introduced on the day after the publication of the Supreme Court's decision. When moving for the Bill to be considered on an emergency timetable, the Cabinet Secretary for Justice said that:

"Certainly and finality are important principles. It is vital that we ... ensure that the Scottish Criminal Cases Review Commission takes account of those principles. Passing the Bill today will ... signal our intention to bring certainty to concluded cases as quickly as possible, which is very much in line with the spirit of the judgment." (27 October 2010, Col. 29555).

The Bill passed through all of its legislative stages on that day. At Stage 1, the Cabinet Secretary was asked to explain the introduction of the reference to finality and certainty now set out in section 194C of the 1995 Act (supra). He said:

"Lord Hope and Lord Rodger referred to those matters, and advised that they should be dealt with so that there was not a back route by which people would seek to bring through the SCCRC cases of some vintage that would not be brought in through the front door of the High Court of appeal.

That is appropriate where an appeal was made timeously or the relevant point was made, but we must balance matters. According to the Crown Office, there could be up to 120 appeals outstanding among the live cases that are currently affected, so we need to ensure that we protect the validity of those judgments and provide some certainty.

The bill applies the principle of finality through the remaining common-law appeal route and to consideration of cases by the SCCRC. That is why we have introduced section 7, which relates to the issues to which Lord Hope and Lord Rodger have referred. It makes clear that finality and certainty are essential for legal judgments, but it does not preclude the possibility of other factors being taken into account: it simply requires the SCCRC to take that factor-along with others-into account to decide whether a case should proceed through that body."

[10] At Stage 2, when the specific changes relevant to Commission referrals were being debated, the Cabinet Secretary said:

"The Bill provides an interim measure to bring in a parallel test so that the decision is not simply in the interests of justice. We provide for the requirement of finality and certainty that Lords Hope and Rodger correctly flagged up in our judgment, but we undertake that the provision will be reviewed by Lord Carloway and could be amended thereafter." (cols. 29642-29643).

[11] The reference to Lord Carloway related to the Review by him of pre-trial procedures in light of the Cadder decision. This Review had been announced by the Cabinet Secretary on the previous day.

[12] On 30 October 2010, the 2010 Act came into force. It added the qualification of finality and certainty to the interests of justice test; it gave this court the power to reject a reference by the Commission, and it required an appellant to obtain this court's leave before arguing any ground that did not arise from the reference. Although these reforms were prompted by the Cadder decision, they were not confined to cases that were affected by it.

The Carloway Review

[13] On 17 November 2011 the Report of Lord Carloway's Review was published. The Report observed that:

"8.2.11 Although the power to reject a reference has not yet been exercised, it might be envisaged that the High Court may refuse to entertain a reference in circumstances where, if an application for a late appeal were to have been made, it would have refused to grant such an application. Equally, it might refuse a reference, if it had already refused to entertain a late appeal and there was no change in circumstances. There may be cases in which the SCCRC and the High Court could reach a different decision on where the interests of justice may lie."

[14] The Report observed that the Commission, by its very nature, was an exception to the principle of finality in criminal proceedings (para 8.2.13). Even before the emergency amendments made by the 2010 Act, the Commission would normally have taken the principles of finality and certainty into account when applying the interests of justice test (para 8.2.17). The Review noted that the Commission plays an important role in retaining public confidence in the criminal justice system (para 8.3.19). On the new gate-keeping function it observed that if the court could reject references from the Commission in limine for reasons other than there being no miscarriage of justice, this might deter applicants from applying to the Commission in the first place. This in turn could undermine the role of the Commission. The Review said that it was widely accepted, despite the occasional lapse, that the Commission had been a conspicuous success in discharging its duties conscientiously and responsibly (para 8.2.22). The flood of referred cases to which it was feared that Cadder might lead had not materialised. Before Cadder was decided, fourteen applications had been made that raised the same issue. Between October 2010 and July 2011 a further 38 applications were made. Of these 52 applications, 24 had been fully processed by the Commission. None was referred (para 8.2.23).

[15] In these circumstances, the Review recommended that the High Court's gate-keeping function should be repealed (para 8.2.24). However, the Review recommended that an additional criterion would have to be satisfied after a full hearing of the appeal; namely that the court would allow an appeal on a reference by the Commission only where it was in the interests of justice to do so, in addition to the normal requirement that a miscarriage of justice had occurred in the original trial (para 8.8.25).

The references

RM

[16] On 19 May 2009, RM was convicted of rape and was sentenced to five years imprisonment. He did not appeal against conviction. On 5 December 2011, the Commission referred his case to this court.

[17] The appellant was charged that:

"on 9 March 2008 at [locus] you did assault [the complainer], residing there and did seize hold of her arm, pull her into the livingroom, kiss her face and neck, force her to the floor, lie on top of her, hold her down, pull her hair, pull down her top and bra, kiss, lick and handle her body, struggle with her, pull down her trousers and underwear, repeatedly force her legs apart, lick her private parts, insert your fingers into her private parts, follow her into a bedroom, force her onto a bed, lie on top of her, seize her by the throat, hold her down, forcibly remove her underwear tearing same, all to her injury and you did repeatedly rape her."

The jury convicted the appellant of the charge under deletion of the word "repeatedly."

[19] The complainer and the appellant spent the late evening and early morning of 8 and 9 March 2008 at the complainer's flat. The complainer said that the appellant raped her in the early morning, first in the living room and then in her bedroom. The appellant said that consensual sex took place in the living room and that nothing happened in the bedroom.

[19] The appellant was detained by the police that morning. He was not offered the opportunity to consult with a solicitor. He gave several potentially incriminating statements on the question of consent. He said that he over-reacted and had continued after the complainer said no.

[20] The Commission decided that the admission of the appellant's interview might have resulted in a miscarriage of justice. They also found that the form of the jury's verdict, and in particular the deletion of the word "repeatedly," left it unclear as to whether the appellant was convicted of raping the complainer in the living room or in the bedroom. The lack of clarity in the verdict might have violated article 6 of the Convention.

[21] The Commission considered that a reference was in the interests of justice. The charge was grave. As the appellant's sentence was to expire in 2014, a successful appeal would be likely to have an immediate practical effect. The appellant was virtually a first offender. A conviction for rape was likely to have continuing and severe adverse consequences for him. The Commission considered the importance of finality and certainty. In light of the recent date of the conviction, it thought that this was not a significant factor.

Edward Gallacher

[22] In April 2004 the appellant was convicted of a series of acts of public indecency, lewd and libidinous behaviour and indecent assaults committed in Bonhill, Alexandria. He was sentenced to an extended sentence of four years, of which the custodial term was two years. He did not appeal against conviction or sentence. In July 2004 he applied to the Commission for a referral of his conviction. He made certain criticisms of the strength of the Crown case upon which he was convicted. The Commission treated this as a submission that no reasonable jury could have convicted him. It rejected the application. In November 2010, soon after the Cadder decision, he made a further application on the basis of Cadder. On 17 January 2012 the Commission decided to refer the conviction.

[23] Corroboration for the offences was sought from certain incriminating responses by the appellant when he was in police custody. On 21 December 2003 he was arrested regarding an incident on the previous day. He denied that he had been involved. The police evidence, which he denied, was that he told the officers that he had a problem and that he needed help. He was cautioned. One of the officers knew that there had been a series of sexual offences in the Bonhill area. He decided to obtain the relevant papers. The appellant was interviewed again. He was given a 15-minute break for a drink. After the break he made certain admissions that could be held to show special knowledge.

[24] At the trial, he denied that he had said that he needed help. He said the police had bullied him and put pressure on him during the 15-minute break. They had briefed him as to how he should reply to their questioning when the tape was re-started. This was how he came to show special knowledge.

[25] As was the law at the time, the appellant did not have the opportunity of a meeting with a solicitor before the interview began.

[26] The Commission's view is that, apart from the comment made en route to the police station, the appellant's incriminating statements are struck at by Cadder. It considers that the admission of these statements may have caused a miscarriage of justice.

[27] The Commission believes that it is in the interests of justice to refer this case. It notes that the appellant did not appeal against conviction and that the present application was made about six years later; but it sees this in a broader context. The appellant's first application was made only three months after the conviction. He had not acquiesced in his conviction, nor had he drawn a line under it only to seek review in the light of subsequent events. He continued to deny his guilt while in prison. From the outset, he had disputed the fairness of the police interview. The offences were serious. They incurred public opprobrium. This consideration would not in itself justify referral, but it was relevant when considered along with other factors. The appellant had only a limited criminal record.

Additional grounds

[28] The Notice of Appeal on behalf of RM raises questions that go beyond the matters covered by the reference. This appellant requires leave to argue them (1995 Act, s 194D (4B). That question arises only if the court does not reject the reference in limine.

Submissions for the Crown

[29] The advocate depute submitted that the question whether the references should be rejected in terms of section 194DA of the 1995 Act was one for the discretion of the court. The Crown did not seek to act as contradictor on the merits of our permitting the references to proceed. It offered submissions only on the appropriate test that should apply in change of law cases such as these.

[30] The advocate depute founded on the reference in section 194DA to finality and certainty. Parliament had indicated that these were important matters. Special considerations applied where a trial had been conducted correctly and in good faith according to the legal standards of the time. Trials held before Cadder that were now impugned on the basis of that decision were examples of this. A reference should proceed only where there were wholly exceptional circumstances amounting to a denial of justice. This was the test articulated in A v The Governor of Arbour Hill Prison (supra) which had been cited with approval in Cadder.

Submissions for the appellants

RM

[31] The solicitor advocate for this appellant submitted that the need for finality and certainty was only one of several considerations. Those considerations had always been relevant to the Commission's exercise of its discretion. In cases of miscarriage of justice, the interests of justice would always weigh heavily when compared with the need for finality and certainty. This court could exercise a gate-keeping function if the Commission's reasons were seriously flawed. That was not the case here.

Edward Gallacher

[32] Counsel for this appellant submitted that the court should support the Commission's reasons. The observations in Cadder about the need for finality and certainty were subject to the right of the Commission to refer cases to this court. The report of the Carloway Review observed that the Commission had carried out its functions responsibly. The 2010 legislation was prompted by a fear of an inundation of cases as a result of Cadder; but this had not happened.

Conclusions

[33 An independent body specifically entrusted with considering cases of possible miscarriages of justice has decided that it is in the interests of justice that it should make these references (1995 Act, s 194C(1). In making that decision the Commission has considered the interests of finality and certainty (s 194C(2)). Although this court has been given the power to reject a reference in language that replicates the provision applicable to the Commission (s 194DA(1), (2)), it cannot be right for us simply to duplicate the Commission's function and give effect to our own view. In light of the impressive record of the Commission, it is unlikely that we will have cause to differ from its judgment on this point. I think that we are entitled to assume, unless the contrary is apparent, that the Commission has considered the criteria set out in section 194C and has duly made its independent and informed judgment on them. In my view, we should reject a reference only where the Commission has demonstrably failed in its task; for example, by failing to apply the statutory test at all; by ignoring relevant factors; by considering irrelevant factors; by giving inadequate reasons, or by making a decision that is perverse.

[34] I am not satisfied in either of these cases that our power under section 194DA should be exercised. I can see no flaw in the Commission's approach. My own view is that the interests of justice test is satisfied in both cases.

Disposal

RM

[35] I propose to your Lordships that we should allow the reference to proceed. We can decide later whether to grant leave to argue the additional grounds under section 194D(4B).

Edward Gallacher

[26] I propose that we should allow the reference to proceed.