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 Miscarriages of justice by Gerard Sinclair

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

PostSubject: Miscarriages of justice by Gerard Sinclair   Wed Sep 03, 2008 5:31 pm

The relationship between the Scottish Criminal Cases Review Commission and the appeal court, and their respective views on what constitutes a miscarriage

The Journal, August 2005,

In June, the Scottish Criminal Cases Review Commission published its 6th Annual Report (available on The Commission is now recognised, and accepted, as an integral part of the criminal justice system in Scotland, with both the public and the legal profession becoming more comfortable and familiar with its function and the manner in which cases are investigated and reviewed.

The report reveals that the Commission has reviewed 550 cases since its creation in 1999, and has referred 47 cases to the appeal court in that six year period. These figures are in sharp contrast to the substantially smaller figure of only 20 cases which were referred in the 73 year period prior to the creation of the Commission, when allegations of miscarriage of justice were investigated by the office of the Secretary of State for Scotland.

Although the Commission has been involved in a number of successful referrals (11 out of the 21 cases already decided by the appeal court), little has been written about the separate functions and powers of the Commission and the High Court in Scotland in dealing with a potential “miscarriage of justice”. In particular, apart from an early, but very useful, analysis of the role of the Commission by Professor Peter Duff, one of the present commissioners (“Criminal Cases Review Commissions and Deference to the Courts: The Evaluation of Evidence and Evidentiary Rules” [2001] Crim LR 341), there has been little consideration of whether there exists a dichotomy of views between the two bodies as to the meaning of the phrase “miscarriage of justice”, and, if there is, whether such a difference is to be viewed as a healthy and natural source of legal and academic debate, or as a defect in the appeal process within Scotland.

Gerard Sinclair, formerly a solicitor in private practice, is Chief Executive of the Scottish Criminal Cases Review Commission

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