The appellant the Commission’s decision not to refer his case back to the court. They had agreed that a miscarriage of justice might have occurred, but concluded that it was not in the interests of justice to make such a referral. His statement had been obtained without the presence or availability of a lawyer in a manner subsequently ruled unlawful in Cadder.
Held: The Commission did not err in any of the respects complained of, as the courts below correctly held.
The fact that the evidence in question was and remains undisputed is plainly relevant to an evaluation of whether it is in the interests of justice to make a reference. It would not normally be in the interests of justice to quash a conviction merely because, under the law as now understood, there was a lack of admissible corroboration of a fact which had never been in dispute.
As to the failure to challenge the police interview before Cadder, Lord Pentland said: ‘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.’
Given that the appellant’s admission that sexual intercourse had taken place was admissible under the law as it then stood, he was entitled to have the whole of the interview placed before the jury, as a matter of fairness, so that the jury were aware that the admission was made in the context of his also maintaining that intercourse had been consensual. The result was that, although he was entitled to give evidence in his own defence, he did not have to do so in order for his defence to be placed before the jury: they had already heard his account to the police. He did not, therefore, have to expose his account to cross-examination. That afforded him an opportunity which would not have existed if the interview had been inadmissible. In the event, he availed himself of that opportunity. That was a matter which could properly be taken into account by the Commission when evaluating the course of action which the interests of justice required.
Judges:
Lord Kerr, Lord Clarke, Lord Reed, Lord Hughes, Lord Hodge
Citations:
[2017] UKSC 20, 2017 GWD 11-144, 2017 SLT 365, UKSC 2015/0125
Links:
Bailii, SC, SC Summary, SC Summary Video
Statutes:
Criminal Procedure (Scotland) Act 1995 194B(1)
Jurisdiction:
Scotland
Citing:
Cited – Cadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
Appeal from – Gordon, for Judicial Review SCS 29-Nov-2013
(Extra Division, Inner House) Challenge to refusal of order for review of failure of the Scottish Criminal Cases Review Commission to refer the reclaimer’s case to the High Court.
Held: Appeal refused. . .
See Also – Gordon v Her Majesty’s Advocate HCJ 24-Apr-2009
. .
Cited – A v The Governor of Arbour Hill Prison 10-Jul-2006
Supreme Court of Ireland
Murray CJ said: ‘[T]he retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position … No one has ever suggested that every time there is a judicial . .
Cited – Salduz v Turkey ECHR 27-Nov-2008
(Grand Chamber) The applicant had been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate.
Held: There had been a violation of art 6(3)(c) of the . .
See Also – Gordon v HM Advocate HCJ 6-May-2010
Appeal rejected.
Lord Carloway considered each of the grounds of appeal with meticulous care, and reflected his evaluation of the likely effect on the jury’s verdict of the additional or undisclosed evidence, and of the potential evidence which . .
Cited – Regina v Budimir and Another CACD 29-Jun-2010
The defendants sought leave to appeal out of time saying that their convictions had been under the 1984 Act which was later found to have been unenforceable for failure to comply with notification requirements under European law. The 1984 Act had . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – RM and Another, Re Scottish Criminal Cases Review Commission HCJ 25-Apr-2012
Lord Justice-General Hamilton considered the role of the Commission and its relationship with the court, and stated: ‘Although this court has been given the power to reject a reference in language that replicates the provision applicable to the . .
Cited – Chamberlain-Davidson, Re Scottish Criminal Cases Review Commission HCJ 25-Apr-2012
. .
Cited – RMM v Her Majesty’s Advocate ScSf 29-Nov-2012
. .
See Also – Gordon, Re Judicial Review SCS 24-Jan-2013
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.
Held: The application was refused.
As to the . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 25 July 2022; Ref: scu.581027