8.2 FINALITY AND CERTAINTY
8.2.1 In introducing the provisions of the 2010 Act that relate to the SCCRC, the Government attempted to address the problem, recognised in Cadder, which can happen when "change the law" decisions, capable of having retroactive effect, are made by the courts. The difficulty created follows from the legal fiction that, as distinct from changes made by statute, the courts never change the law but simply declare what the law has always been. This can, and does, occur where a superior court overrules a decision, or series of decisions, taken by a lower court, which may have been applied in practice for years, if not generations. In theory, the new declaration of the law applies to all previous cases. However, of practical necessity, there must be a limit to any retroactivity.
8.2.2 In the Irish Supreme Court case of A v The Governor of Arbour Hill Prison, Murray CJ neatly set out the limit in the following terms :
"….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".
Thus, where there is a change of law after the expiry of a time limit for appealing a conviction, or where an appeal or leave to appeal has been refused, the general rule is that the conviction must stand. However, as tends to be common with generalities, there are exceptions. In Arbour Hill Prison the exception was expressed as applying if :
"for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice, … verdicts in particular cases or a particular class of cases be not allowed to stand".
8.2.3 In Cadder, both Lord Hope  and Lord Rodger  referred to the principle of finality which had been stressed in Arbour Hill Prison. Both said that it was for the SCCRC to determine whether it would be in the "public interest" to refer any case raising a Cadder point. It should be noted that the relevant part of the reference test in Scotland is the "interests of justice" and not the "public interest".
8.2.4 There are, or at least were, two concerns following Cadder. First, where a convicted person had not appealed a decision at first instance, he/she might apply to the High Court for leave to appeal late on Cadder grounds. In that event, it would be open to the Court to grant that application. An appeal, where the conviction may have occurred years previously, would then be "live" and not subject to the Arbour Hill Prison finality dictum. Similar considerations would apply where there was a live appeal but no Cadder ground and the appellant sought to introduce such a ground by way of an amendment to his/her Note of Appeal. It is understood that, since Cadder, there may have been some inconsistency in the approach of the judges to such applications. However, the correct approach is illustrated by Ahmad v HM Advocate , where the appellant was not permitted to introduce a Cadder ground in circumstances where his/her appeal ought to have been concluded before Cadder. Thus, where no Cadder ground has been raised and an appeal has been, or ought to have been, concluded by the time of that decision, no leave to proceed with such a ground ought generally to be given, whether by way of a late Note of Appeal or an amendment to the grounds in an existing Note. In either case, the alternative remains that, secondly, the SCCRC could refer a concluded case to the High Court, thereby reviving it into a state also not struck at by the Arbour Hill Prison finality dictum. Were an appeal or amendment allowed to be received late or such a reference to be made, the only decision for the Appeal Court, under the existing statutory provisions, would be whether a miscarriage of justice in the trial process had occurred. Whatever the date of any conviction and/or subsequent refusal of any appeal, that decision would have to be made in light of the "new" law as declared by the superior court .
8.2.5 Prior to 1997, if a convicted person's appeal, or application for leave to appeal, was refused, his/her remedy was to apply to the Secretary of State to have his/her case referred back to the High Court. However, in that year the SCCRC was established  as a body independent of the Government, Crown and Judiciary, to consider applications claiming that a miscarriage of justice had taken place.
8.2.6 The SCCRC may refer a case to the High Court if they :
(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".
This is a much less restrictive test than that current in England and Wales, where it is whether there is a real possibility that the conviction would not be upheld, if a reference were made, because of an argument, or evidence, not raised in the trial or prior appellate proceedings and an appeal has been determined or leave to appeal has been refused . There is no enthusiasm for any change in the Scottish test to make it similar to that in England and Wales .
8.2.7 It can be seen immediately that on the one hand, in deciding whether to refer a case, the SCCRC have to apply a different, and more stringent, test from that used by the High Court in determining whether to grant leave to appeal (i.e. arguability). On the other hand, the test is less stringent than that applied by the Court in allowing an appeal, i.e. that a miscarriage of justice has, and not just "may have", occurred in the trial process. But it does contain an important additional element beyond that presently applied by the Court either when granting leave or in allowing an appeal, i.e. that it is "in the interests of justice" that a reference should be made. Prior to the 2010 Act, there was no restriction or guidance on the matters which the SCCRC may take into account under this heading.
8.2.8 Because of the concern that Cadder might result in a flood of applications to the SCCRC and consequent references to the court, many of which, on one view, would have resulted in the quashing of the relative convictions, the 2010 Act expanded on the interests of justice element in the test to be applied by the SCCRC by providing that :
"In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings".
The intention was to ensure that, when assessing an application, the SCCRC would be bound to take into account the dictum in Arbour Hill Prison relative to "spent" cases (i.e. those where the time limits for an appeal had expired or the appeal, or application for leave to appeal, had been refused).
8.2.9 It was perceived that there would remain a problem if, nevertheless, the SCCRC did refer "spent" cases. As already noted, the High Court would not be able to take "the interests of justice" into account. Its role would be restricted to determining whether a miscarriage of justice had occurred in the particular trial process. For this reason, the 2010 Act introduced another provision  whereby:
"(1) Where the Commission has referred a case to the High Court under section 194B of this Act, the High Court may, despite section 194B(1), reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.
(2) In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings".
The amendments made by the 2010 Act were designed specifically to deal with cases where an applicant to the SCCRC, who had not appealed his/her conviction or had had his/her appeal or application for leave to appeal refused, sought to raise a Cadder point, even although the law was as stated in McLean at the time of his/her appeal and/or trial.
8.2.10 The amendments made by the 2010 Act apply to all SCCRC references and not just to those raising Cadder points. They give to the High Court a gate-keeping role, relative to the interests of justice, which formerly rested only with the SCCRC. Whereas, previously, the sole concern of the High Court was whether a miscarriage of justice had occurred in the trial process, it now extends to whether the Court considers that a reference ought to have been made "in the interests of justice" having regard, potentially, to a wide range of circumstances, including the reasons why the High Court might previously have refused leave to appeal late or treated an earlier appeal as abandoned.
8.2.11 This gate-keeping role has to be performed by the High Court at a preliminary (procedural) hearing in advance of any full hearing on the merits of the reference. 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.
8.2.12 There are three main questions to answer: first, is it appropriate that there should be a specific requirement for the SCCRC to consider finality and certainty in deciding whether to refer and, if so, should other aspects of the "interest of justice" test be similarly specified; secondly, should the High Court's "gatekeeping role", provided for in the 2010 Act, be continued; and thirdly, are there any other ways in which finality and certainty, or the wider interests of justice, should be considered in the reference or appellate processes?
SCCRC and the "interests of justice"
8.2.13 The significance of the SCCRC is that it provides, by its very nature, an exception to the principle of finality in criminal proceedings. It has that role because it is recognised that, no matter how proficient the High Court may be in rooting out miscarriages of justice in the trial process, there are some, albeit few, cases, where the High Court has failed to do this or where facts have come to light to demonstrate a miscarriage of justice after the exhaustion of rights of appeal.
8.2.14 As has been highlighted elsewhere in this report, the effect of continued litigation on victims and relatives of deceased persons, as well as those convicted, should not be underestimated. Certainty and finality remain important considerations for any criminal justice system. As a generality, it is in the interests of all of those involved in a case, whether it be victims, witnesses or accused, that it reach a conclusion. It is important, for purposes of public perception, that cases do end and are not subject to repeated appeals or changes of decision.
8.2.15 The need for finality and certainty is reflected in the SCCRC being limited to referring cases where it can be said that it is in the interests of justice for the reference to be made. This element in the reference process must involve taking into account considerations wider than those raised in the particular application such as whether, despite his/her perception that a miscarriage of justice may have occurred, an applicant decided not to appeal at the time or abandoned an appeal and effectively acquiesced in his/her conviction.
8.2.16 A SCCRC reference is an extraordinary process designed to deal with exceptional cases where something has gone wrong within the criminal justice system. But the form of process acknowledges that it is not enough to demonstrate that a miscarriage of justice may have occurred at the previous trial. A broader test, having regard to the wider interests of justice, must be applied before a case can be referred. It must take into account the dictum in Arbour Hill Prison, if the evidence adduced at trial was in accordance with the law then or at the appellate stage.
8.2.17 The Review accepts that, even in the absence of the new wording introduced by the 2010 Act, the SCCRC would normally have taken the principles of finality and certainty into account when applying the interests of justice test. The Review is confident that the SCCRC will continue to do so in the immediate future. But there have been instances in the past in which the High Court has not been entirely happy that the SCCRC has fully considered this aspect of a case . Retention of the new wording will ensure that it continues to be regarded as an important factor recognising, if it were not obvious, that the possibility of a miscarriage of justice having occurred in the trial process does not, of itself, mean that it is in the interests of justice that the relative conviction be quashed. This applies in all cases where a miscarriage of justice is alleged and not just in change of law situations.
8.2.18 The Review takes the point that, by specifying this particular aspect of the "interests of justice", the legislation may be seen as detracting from the importance of other elements. In this connection, the Review notes the terms of the SCCRC information leaflet, which make it a requirement that appeal procedures be exhausted. But the Review is confident that the SCCRC will continue to take into account all the other matters which it has customarily had regard to. It would be reluctant to recommend listing, in statutory form, other aspects of the interests of justice which might be taken into account and which could outweigh the occurrence of a miscarriage of justice at trial.
The High Court's "Gate-keeping Role"
8.2.19 The Review is acutely aware of the important role that the SCCRC plays in retaining public confidence in the criminal justice system. There is a perception that miscarriages of justice sometimes occur. That perception is well founded, even if it has to be put into a proper perspective relative to the total number of convictions recorded (approximately 140,000) and appeals marked (about 2000) in a given year. The SCCRC receives about 110 applications per annum and refers about 8 per annum to the appeal court. In conviction cases the SCCRC has referred 57 out of 1,000 cases since 1999. About two thirds of references result in convictions being quashed . Of course, there may be miscarriages which are neither complained of nor referred, but the figures do provide some illustration of the extent of any problem .
8.2.20 The fact that the High Court must consider a reference from the SCCRC is important in maintaining confidence in the SCCRC and thereby in the criminal justice system as a whole. Miscarriages of justice can arise for reasons not directly connected to the trial process. This is very often the case with "fresh" evidence claims . However, some miscarriages of justice arise as a result of the way in which a case has been dealt with by a trial or appellate court . It is unusual for the SCCRC to consider a case unless and until the applicant has either unsuccessfully appealed the decision at first instance or has been refused leave to appeal. Thus by the time an application is made to the SCCRC, the applicant, his/her friends, relatives and other supporters, may perceive that the Court is less than sympathetic to his/her position. This concern would be greater if the Court, when originally rejecting the applicant's appeal or refusing to grant leave to appeal, made negative comments about the merits of the grounds of complaint. If applicants were aware that, even if his/her case were to meet the criteria for a reference by the SCCRC, the Court could refuse to consider the reference in limine for reasons other than whether there was a miscarriage of justice, this may well deter them from applying to the SCCRC in the first place. If applicants are deterred from applying to the SCCRC because of that perception, this has a strong potential for undermining the important role of the SCCRC within the criminal justice system.
8.2.21 On the other hand, SCCRC references are not, or at least ought not to be, the same as appeals made in the ordinary manner. However egregious a potential miscarriage of justice may be, the SCCRC cannot refer the case to the High Court unless they also believe it would be in the interests of justice to do so. If the Court were to be allowed to consider the interests of justice test, all that it would be doing would be applying part of the same statutory test as that laid down by Parliament for making a reference in the first place. Of course, if the SCCRC apply the test appropriately, the Court should rarely have any basis upon which to reject a case on this ground. But if it is for the SCCRC to consider whether it is in the interests of justice to refer a case, then logically it may also be appropriate for the Court to consider such a test at least when determining the appeal. It is countered that, if the SCCRC does not appropriately consider the interests of justice, the Crown could elect to "judicially review" the reference . But introducing a civil process into this arena, and one involving an Outer House judge at least initially, may be seen as unnecessarily elaborate.
8.2.22 The case for maintaining a gatekeeping role for the High Court would have greater force if there were a perception that the SCCRC had a significant track record of frivolous or inappropriate references and it were thought that some further measure was required to bring greater discipline to their activities. The Review is content to note that there has been no suggestion from any source, nor is there any other reason to suppose, that this is the case. Indeed, it seems to be widely accepted that, despite the occasional lapse, the SCCRC has been a conspicuous success in discharging its duties conscientiously and responsibly.
8.2.23 The "flood" of referred cases that was feared following Cadder has not materialised. The Review understands that, in the period from the Cadder decision in October 2010 up until July 2011, there were thirty-eight applications to the SCCRC citing Cadder grounds. Added to fourteen similar applications made before Cadder was finally determined, this makes a total of fifty-two applications. Of these fifty-two applications, at least twenty-four have been fully processed by the SCCRC and none have been referred to the Court. It may be that a proportion of the remaining twenty-eight cases may result in references, but this cannot be said to be a deluge. The Review notes that more references may arise following Ambrose. However, the outcome of that case would suggest that they will be very few in number.
8.2.24 In all these circumstances, it is inappropriate for the Appeal Court to have a gate-keeping role in relation to references from the SCCRC because of the effect which such a role could have relative to the function committed by Parliament to the SCCRC. That new provision of the 1995 Act ought to be repealed.
References to the High Court
8.2.25 In references, there are wider considerations than exist in an ordinary appeal process, when the Court is generally only reviewing the proceedings in the trial court, although fresh evidence may also have an impact. By the time a reference is made, there may also have been a previous conscious decision by an applicant not to appeal, or not to do so on particular grounds. He/she may have abandoned an appeal or expressly departed from one or more grounds. There may have been a decision to refuse an applicant leave to appeal late either because of the absence of any arguable grounds or on the merits of the application as framed. In a reference, it may transpire that there is "fresh" evidence on both sides. Rather than continuing the process by, for example, ordering a re-trial , it may be more appropriate for the Court to be able to bring matters to a conclusion in a reference by considering, in whatever order it deems appropriate in the particular case, but after a final hearing, whether: (a) there has been a miscarriage of justice in the trial process; and (b) it is also in the interests of justice that the appeal be allowed. The law might thereby be advanced in so far as the Court can determine in appropriate cases what wider considerations of justice might result in a conviction being sustained, notwithstanding the finding of a material miscarriage in the original trial or appeal proceedings. Such a determination may assist the SCCRC when considering the interests of justice in subsequent applications.
I therefore recommend that:
- section 194 C(2) of the 1995 Act (as inserted by Section 7(3) of the 2010 Act) which introduces a requirement on the SCCRC to consider "finality and certainty" in considering a reference, should be retained. There should, however, be no further statutory listing of the criteria included in the "interests of justice" test for SCCRC references;
- section 194 DA of the 1995 Act (as inserted by Section 7(4) of the 2010 Act) which provides a "gate-keeping role" for the Appeal Court in relation to references from the SCCRC should be repealed; and
- when considering appeals following upon references from the SCCRC, the test for allowing an appeal should be that:
(a) there has been a miscarriage of justice; and
(b) it is in the interests of justice that the appeal be allowed.
  4 IR 88 at 143
 at para 62
 at para 103
 2011 SCCR 148, Lord Reed at para 11
 see generally the approach to new law and practices in Coubrough's Extx v HM Advocate 2010 SCCR 473 at para  -  under reference to R v Hanratty  2 Cr App Rep 30 Lord Woolf CJ at paras 98 - 100, Campbell v HM Advocate 2004 SCCR 220 LJ-C (Gill) at para 98; Boncza Tomaszewski v HM Advocate 2000 SCCR 657 LJG (Rodger) at para 5
 1995 Act s 194A, inserted by the Crime and Punishment (Scotland) Act 1997 following the recommendations of the Sutherland Committee
 1995 Act s 194C
 see R v CCRC ex parte Pearson  1 Cr App R 141 analysing the Criminal Appeal Act 1995 s 13. The CCRC must have regard to the test which the courts apply in refusing leave to appeal late, especially in change of law situations ( R v Hawkins  1 Cr App R 234), when considering whether to refer a case ( R v Cottrell  1 Cr App R 7) see Nobles and Schiff: Absurd Asymmetry  71 MLR 464 and Sinclair: The Relationship between the Commission and the Court
 England and Wales and Norway being the only two other jurisdictions with such a Commission
 s 7(3) introducing 1995 Act s 194C(2)
 s 7(4) introducing 1995 Act s 194DA
 see Hunt v Procurator Fiscal (Inverness) 2008 SCCR 919 and the sentence cases of Kelly v HM Advocate  HCJAC 20, Lord Kingarth at para 6; and Daffurn v HM Advocate  HCJAC 53, LJG (Hamilton) at para 11, although focusing on miscarriage of justice
 see SCCRC Anuual Report 2010-11, p16
 some, however, would say that a low percentage reflects on the SCCRC's willingness to refer cases; see in England Nobles and Schiff: The Criminal Cases Review Commission: Establishing a Workable Relationship with the Court of Appeals  Crim L R 173
 e.g. Campbell v HM Advocate 2004 SCCR 220, Johnston v HM Advocate 2006 SCCR 236 and Gilmour v HM Advocate 2006 SCCR 626
Campbell ( supra) and Campbell v HM Advocate 2008 SCCR 847
 for a challenge by applicants see M Petnr 2006 SLT 907, and in England see R (on the application of Director of Revenue and Customs Prosecutions) v Criminal Cases Review Commission  1 Cr App R 30
 e.g. Fraser v HM Advocate 2011 SLT 515