This is the Second part of the answer to an E-mail that I received from a reader a while back about how the Scottish Criminal Cases Review Commission first into the overall appeal process in Scotland. If you have no understanding of basic criminal procedure in Scotland then it might be helpful for you to read Part One.
The Scottish Criminal Cases Review Commission is a independent body who are funded by the Scottish Government. They are independent from the Crown Office, Procurator Fiscal, defence teams, judiciary etc.
They can review cases where it is believed that there has been a miscarriage of justice, but only once the normal appeals process has been exhausted. A panel will review the case in an independent and impartial way (although they have faced criticism in the past for their apparent lack of independence and impartiality) and have the power to refer a case back to the High Court where they believe a miscarriage of justice may have taken place (and if it is in the interests of justice to do so).
People can make an application to the SCCRC as many times as they wish, but the SCCRC may refuse to look at cases it has decided not to refer where no new issues are being raised. Judicial Review of a decision by the SCCRC is possible where they have decided not to refer the case back to the High Court.
There are lots of small procedural rules that it’s not worth getting bogged down in (mainly in relation to time bars following a referral).
So, essentially the SCCRC fits into the appeals process as the final stages of appeal as it is normally a requirement that the normal appeals process has been followed.
I’ve decided to address (briefly) the issue of impartiality and independence here as it is bound to come up from someone having read the post.
There are questions surrounding the independence and impartiality of the SCCRC given that it is funded by parliament, its members are appointed by the Queen on the advice of the First Minister and that it is accountable to parliament in relation to its funding. At the same time it claims to be an independent body.
I believe that these questions are entirely valid and are some that should be addressed by the Scottish Government while they are carrying out consultations on the legal profession. It’s not the most independent and impartial organisation when it is accountable to Parliament. Yes, its funds have to come from somewhere and they should be public given the SCCRC’s role in the Criminal Justice System. Should its accountability be to Parliament? That’s a tough one. Thoughts welcome on the back of a postcard to the usual address.
prout de jure 