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Number of posts : 399
Location : Glasgow
Registration date : 2008-09-03

PostSubject: MOHAMMED RAZA   Sat Sep 06, 2008 6:04 pm


[2007] CSOH 152


in Petition of




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.

Submissions for the Commission on section 194C(a)
[4] In reply Mr Moynihan, Q.C., submitted that the Commission went about its task in the correct way, and in accordance with the proper interpretation of its powers under the Act. Having regard to the terms of section 106(3) of the Act, the sift judges must ask themselves whether there is a reasonable basis upon which it may be alleged that there has been a miscarriage of justice - the "arguability test". If the answer is yes, then leave to appeal is mandatory. However the Commission operates under a very different statutory regime, and thus there is no good reason to equiparate the Commission's task with that of the sifting judges. The role of the Commission is to be viewed in the context of the finality provisions in section 124(2) of the Act. It exists to deal with cases where there are good grounds for believing that there may have been a miscarriage of justice. Section 194B(1) confirms that the Commission is exercising a discretionary power. This can be contrasted with the mandatory terms of the sift provisions. The Commission can decline to refer even if there are arguable grounds for a miscarriage of justice. The Commission considers each case on its own merits. The statutory grounds in sections 194B and 194C allow the Commission to refer a case if and when it considers that the appeal court may wish to reconsider the law or review current practice; for example, as to whether the time has come for an irregularity, which was previously considered not to amount to a miscarriage of justice, now to be a good ground of appeal. Where a fundamental point of law is involved, the Commission may apply a lower threshold for referral. However arguability is a very low threshold, and quite different from the statutory test of whether the Commission believes that there may have been a miscarriage of justice. There is no necessary inconsistency between recognising that there are arguable grounds for an alleged miscarriage of justice, and the Commission itself not being satisfied that such a miscarriage may have occurred. It was submitted that this approach is consistent with that outlined in the case of Crombie v Clark 2001 S.L.T. 635. Mr Crombie pled guilty by written intimation to a charge of fraudulent evasion of betting duty. Nonetheless he did not accept that there was a basis for the amount of money alleged by the prosecution to be involved in the crime. Subsequently his motion to withdraw the plea was refused, and he was fined £500. On advice he did not appeal. He then applied to the Commission, which referred the case to the High Court. In the course of the opinion of the court it was noted, with surprise, that the Commission abstained from considering the merits of any possible defence, and thus whether there was any miscarriage of justice in the eventual outcome. Rather the Commission concentrated upon the allegation that Mr Crombie's solicitor failed in his professional duty by ignoring his client's position that he did not accept the whole amount of the betting tax mentioned in the libel, and thus caused a delay in the presentation of the aforesaid unsuccessful motion. The bill of suspension presented to the court did not reveal that there was any defence to the libel over and above the accused's non-acceptance of the amount stated. In the court's view, whether or not the solicitor failed in his duties, there was no basis for concluding that his conduct had any impact on the eventual outcome, either in terms of conviction or sentence, thus there was no miscarriage of justice.

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