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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 112
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P2117/05
P2118/05
P2116/05
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OPINION OF LORD EMSLIE
in the Petitions of
(1) BM
(2) KK and
(3) DP
Petitioners;
for
Judicial Review of
decisions 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
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Petitioners: O'Neill, Q.C., O'Brien; McClure Collins
Respondents: Moynihan, Q.C.; Scottish Criminal Cases Review
Commission
19 July 2006
Introduction
[1] In
late 2000, after a trial which lasted for approximately two weeks, the three
petitioners were together convicted of raping a girl in a flat in Edinburgh. Following the imposition of 6-year custodial
sentences, they were all duly released on licence in the course of 2004. Appeals taken against conviction were refused
in June 2002, but in around May 2003 the petitioners asked the Scottish
Criminal Cases Review Commission ("the respondents") to consider referring
their cases back to the High Court under the provisions of section 194B of
the Criminal Procedure (Scotland)
Act 1995. By decisions dated in March and
November 2004 the respondents refused to take that course and, in these three
parallel petitions for judicial review, the petitioners now challenge the
validity of that refusal.
[2] So
far as material for present purposes, the Criminal Procedure (Scotland)
Act 1995 provides inter alia as
follows:
"92(1) ... no part of a trial shall
take place outwith the presence of the
accused.
***
194A(i) There shall be established a body corporate to be
known as the
Scottish Criminal Cases Review
Commission (in this Act referred to
as 'the
Commission').
***
194B(i) The Commission on the consideration of any
conviction of a
person... who has been
convicted on indictment... may, if they think
fit, at
any time, and whether or not an appeal against such conviction... 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... as if it were an appeal under
Part VIII... of this Act.
***
194C 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.
194D(i) A reference of a conviction... may be made under
section 194B of
this Act whether or not an application has been made by or
on behalf of the person to whom it relates.
(ii) In considering whether to make a reference
the Commission shall have regard to ―
(a) any
application or representations made to the Commission by or on behalf of the
person to whom it relates;
(b) any
other representations made to the Commission in relation to it; and
(c) any
other matters which appear to the Commission to be relevant.
***
(v) In
every case in which ―
(a) an
application has been made to the Commission by or on behalf of any person for
the reference by them of any conviction...;
but
(b) the
Commission decide not to make a reference of the conviction...,
they shall give a statement of the reasons for their
decision to the person who made the application.
***
194F The Commission may take any
steps which they consider appropriate for assisting them in the exercise of any
of their functions and may, in particular ―
(a) themselves undertake
inquiries and obtain statements, opinions or reports; ..."
The respondents' investigatory
powers further include the power to request precognitions on oath
(section 194H), and a wide-ranging power to obtain documents
(section 194I).
[3] At
the first hearing which has now taken place before me, as supplemented by
written submissions relative to the case of Adam
v HMA 2006 SLT 621, senior
counsel for the petitioners contended that the respondents' decisions were
invalidated by three particular errors of law, namely (i) applying the wrong
test for "miscarriage of justice" under section 194C(a) of the 1995
Act; (ii) taking the wrong approach to
the assessment of certain fresh evidence which was not available at the trial,
contrary to the decision of the High Court in Megrahi v HMA 2002 JC 99; and (iii) wrongly failing to recognise a juror's unauthorised visit to
the locus, in breach of
section 92(1) of the 1995 Act, as a fundamental irregularity vitiating the
whole trial proceedings. The
respondents' position, on the other hand, was that in refusing the petitioners'
applications they had been guilty of no error of law, addressing the correct
questions at every stage;
and that the applications having been lawfully determined, there
was no ground on which any court of review might interfere.
[4] The
parties were, however, in agreement that it was not the function of this court
to treat these proceedings as an appeal or to purport to decide whether the
respondents' decisions were right or wrong on their merits. In the exercise of its supervisory jurisdiction
the court could only consider whether the decisions complained of were ultra vires, and thus reviewable, on one
or more of the recognised grounds, notably (i) a material error of law going to
the root of a decision; (ii) taking
account of irrelevant matters; (iii)
failing to take relevant matters into account;
or (iv) otherwise reaching a conclusion which no reasonable
decision-making body, correctly applying the law, could properly have reached.
The trial
[5] The
evidence at the petitioners' trial in October 2000 is detailed at some length
in paragraphs 7-58 of the respondents' initial Statement of Reasons no. 7/1 of
process. For the purposes of these
proceedings the relevant parts of that evidence may be briefly summarised as
follows:-
(a) On
the evening in question the complainer had been drinking vodka with
friends in a flat on the fourteenth floor of a multi-storey
block at Little France House, Craigour Place,
Edinburgh.
All were under the influence of alcohol.
In the early hours, following a telephone conversation with an
ex-girlfriend, a boy named SB became upset, left the flat and ran downstairs
towards ground level. For some reason
the complainer followed him, but when she reached the main entrance on the
ground floor he had disappeared, and she was unable to see him in the street.
(b) Shortly
thereafter, she became involved in a conversation with one or more of
the petitioners, who were in a flat on the third floor of
the same building. She did not know any
of them. Originally, she thought that
this conversation had taken place when she was out on the pavement in front of
the flats; that
she had seen someone at the window at that time; and that the entrance door to the building had
by then closed and locked behind her.
However, when confronted with the relevant CCTV footage, she accepted
that (contrary to her recollection) the door had not in fact closed behind her,
and that she may not have gone out quite as far as the pavement.
(c) Importantly,
the complainer came to accept that (as shown by the CCTV
footage) she had buzzed for entry to the third-floor flat at
a time when she was holding the main entrance door open, and thus had no need
to buzz for entry at all. She also
accepted (again on the basis of the CCTV footage) that after coming up in the
lift she had voluntarily walked into the flat on the third floor despite
knowing no-one who lived there. Her only
explanation for this behaviour in the early hours of the morning was that, in
the shouted conversation when she was outside the entrance to the flats, one or
more of the petitioners had led her to believe that SB was with them in the
flat.
(d) The
rape of which the petitioners were convicted took place soon after the
complainer realised that SB was not in the flat and tried to
leave. By that time, on her own
admission, the conversation had turned from football to sex, and she herself
had spoken of her experiences and fantasies.
As she went to leave the flat, however, all three petitioners prevented
her from doing so, and began to touch her all over with their hands. She was pushed into a bedroom, undressed from
the waist down, and forced face-down over a bed. She was then subjected to a sustained sexual
assault, in the course of which one or more of the petitioners had vaginal,
anal and oral sex with her. According to
her, she cried and pleaded with them to stop, making it clear that she did not
want this, and struggled to some extent.
However, the three petitioners easily overcame her resistance, and in
any event she was too frightened of what might happen to do more than she did.
(e) When
her ordeal was over, the complainer hurriedly dressed and rushed
upstairs to the flat on the fourteenth floor where her
friends, and her 2-year-old child, were waiting. The general tenor of her friends' evidence was
to the effect that she arrived in a dishevelled and highly distressed state; that she appeared
frightened; and that she was apparently
unable to sit down on account of pain in her back passage. She was also upset because she would not
normally have had unprotected sex. For
some time she remained crouched in a corner, with her hands over her face, but
eventually she disclosed that she had been attacked, asking 'How could it
happen to me?'
(f) The
police were called without delay, and after making a rape allegation the
complainer was taken to St Leonard's
Police Station where she was medically examined by a police surgeon. While she had only a few external bruises,
mainly on her back, and none visible on her arms, legs or mouth, it was clear
that she was in a great deal of pain and was unable to sit or walk. In confirming this, one police officer
described her as pale, shaken and dazed, and another gave evidence that, in the
flat, she had been crying, out of control, very upset, very distressed and appearing
to be traumatised. On genital
examination the complainer's labia minora were very swollen and very red,
especially near the posterior fourchette.
There were three or four superficial mucosal tears on the left side of
the remnants of the hymen, which were not of a kind commonly seen in a sexually
active woman. In addition, there was
bleeding at the outside of the complainer's anus, with further bleeding inside
and, at the 12 o'clock position, a
superficial tear. According to the
police surgeon, these findings indicated that the complainer had been the
victim of a sexual assault in which significant force had been used. These were blunt force injuries, consistent
with penile penetration, and the inevitable pain (even if dulled by alcohol)
would have been so severe as to make consensual sex
highly unlikely. Moreover, in the view
of the police surgeon, there was no reason why the natural lubrication of the
complainer's vagina should have been abnormally depressed, so as to render her
liable to excess friction and consequent injury in the course of consensual
sex. In the police surgeon's experience,
this was among the worst cases that she had seen.
(g) Subsequent
forensic tests disclosed traces of semen in the complainer's
vagina, mouth and anus. DNA profiles obtained from the vagina and anus
matched one of the petitioners, but not the other two. The semen in her saliva was insufficient to
provide a profile.
(h) The
complainer's credibility and reliability were severely shaken by the fact
that, both to
her friends and to the police, she initially gave a graphic account of being
seized by strangers, and subjected to a serious sexual assault involving
vaginal and anal penetration, on the stairs of the multi-storey flats as she
made her way back up towards the flat on the fourteenth floor. At that time, she made no mention of entering
the petitioners' flat on the third floor, nor of any
prior conversation with the men who attacked her.
(i) Against
that background, the complainer's apparent uncertainty as to where
she had been
when the initial conversation with the petitioners took place might have
assumed some real significance had it not been for the evidence of at least two
of the petitioners confirming (i) that they had heard her shouting for SB
downstairs; and
(ii) that she had indeed had a conversation with one or more of them at the
window before coming up to the flat.
(j) When
re-interviewed by the police a few days later, the complainer stated that
her previous account of having been attacked and raped on
the stairs by strangers was untrue, and proceeded to give an account which
broadly coincided with her evidence in court.
(k) For
their part, the petitioners gave evidence (both in police interviews and at
the trial) to the effect that the complainer had voluntarily
entered the flat after a shouted conversation with one or more of them at the
window. Having entered the flat, she had
willingly participated in a sexually-explicit conversation, talking about her
experiences and fantasies, and had made it clear that she was interested in
having sex. She had led the way into the
bedroom, and after undressing had intimately touched all three of the
petitioners and performed various sexual acts.
Subject to a suggestion in court that one of the petitioners had had
difficulty in getting an erection, the petitioners respectively admitted having
vaginal and anal, anal and oral, and oral and vaginal, sex with the complainer
before she left the flat in a happy and friendly state. According to all three petitioners, the
complainer had been a willing and active participant in everything that went
on.
[6] Against
that background, the majority of the jury must have accepted the complainer as
a credible and reliable witness on the critical disputed issues, notwithstanding
the completely untrue account which she had initially given to her friends and to
the police. They must also have been
prepared to accept that the vaginal intercourse which took place was forcible
and non-consensual; that the petitioners
all actively participated in sexually assaulting the complainer; and that they must therefore all have known
that she was not consenting, or at least been reckless as to whether she was
consenting or not.
The petitioners' appeals
[7] Appeals against conviction
were subsequently pursued on behalf of all three petitioners. These were exclusively founded on alleged
misdirections by the trial judge, and were rejected by the High Court on 5 June 2002.
The issues before the respondents
[8] There
were, in the end, two grounds on which it was submitted that the respondents
should refer the petitioners' cases to the High Court under section 194B of the
1995 Act. First, a reference was sought on the strength of certain fresh
evidence which had emerged since the date of the trial, and perhaps even since
the date on which the petitioners' appeals were rejected. In broad terms, this fresh evidence consisted
of precognitions from witnesses who did not give evidence at the trial, to the
effect that, in various different circumstances, they had heard the complainer
say that she had not been raped at all, and that sex with the three boys had
been consensual. As narrated by the
respondents in their initial Statement of Reasons, the situation regarding this
fresh evidence was as follows:-
(a) The first witness (SB)
described how, approximately one week after the incident, the complainer
admitted that she had made false allegations of rape in order to obtain money
and attention. However, the witness
could not recall the "two or three others" who were also present at the time,
nor could he explain why he had never mentioned this before when interviewed by
the police, and when he was listed as a Crown witness for the trial.
(b) The second witness (DF)
stated that, at about the same time, the complainer at a party confided that
she had had consensual sex with one boy only, and had alleged rape in order to
secure money from the Criminal Injuries Compensation Board. According to this witness, SB was one of
those present at the time, along with three others, namely LM, RN and SC. However, when LM and RN were interviewed,
they denied hearing the complainer make any such admission, and maintained that
the only apparent retraction she ever made was as a result of threats and
violence towards her by SC at their house.
SC was, on 14 March 2000
convicted of assaulting the complainer in an attempt to get her to change her
story before the trial. In addition, DF
could not satisfactorily explain why she had taken no steps to draw this
conversation to the attention of the authorities at any earlier stage.
(c) The third witness, (CS)
stated that at an unspecified date in 2000 or 2001, somewhere in Princes
Street, Edinburgh, the
complainer volunteered that she had made false allegations of rape against two
boys. According to her, she had wanted
to drop the charges, but had been prevented from doing so by the police. The complainer further stated that she had
made the allegations "for a laugh". CS's
friend JC had been present at the time, but apparently had no recollection of
the conversation. All three girls had
been drinking, and CS herself was drunk.
(d) The fourth witness (DD),
in an undated precognition, maintained that in the days following the incident
the complainer was not at all distressed, and had admitted that she was not
raped. Again this witness was unable to
explain why he took no steps to bring this conversation to the attention of the
authorities prior to the trial, in circumstances where he was friendly with
several individuals who he knew were to be Crown witnesses.
(e) As recorded in paragraph
7 of the respondents' supplementary Statement of Reasons, no. 7/2 of process,
these fresh allegations were put to the complainer herself, who denied making
the statements attributed to her.
[9] Second, the respondents were asked to
refer the petitioners' cases to the High Court on account of a procedural
irregularity which arose during the trial, and which was said to be so serious as to vitiate the whole proceedings. Apparently, some members of the jury believed
that, in the course of her evidence, the complainer had described seeing and
talking to the petitioners at the window of their flat when she was right at
the ground floor entrance door and holding it open. Since there was a substantial canopy
projecting forward above that entrance towards the street, the jurors doubted
the credibility and reliability of what, on their understanding, the complainer
had said. Overnight, one member of the
jury who lived fairly close to the locus
went to an identical block of flats nearby.
There, he stood by the entrance door and confirmed that the substantial
canopy indeed blocked any view up the face of the building. On the following morning he reported this
finding back to his fellow jurors, and the trial proceeded without anyone else
becoming aware of what had taken place.
Accordingly, although the juror's actings arguably constituted a breach
of section 92(1) of the 1995 Act, the trial judge had no opportunity to
consider their effect on the future of the trial, nor did she (even as a last
resort) have an opportunity to direct the jury that they must decide the case
solely on the evidence heard in court, and correspondingly ignore, and put out
of their minds, any factual enquiries of their own.
[10] On both of these grounds, it was argued, a clear miscarriage of
justice could be identified, and in the proper exercise of their statutory
discretion the respondents had no real option but to make the references which
were sought.
The respondents' decision
[11] On the basis set out in their initial Statement of Reasons no.
7/1 of process, as amplified in their Supplementary Statement of Reasons no.7/2
of process, the respondents declined to refer the petitioners' cases to the
High Court. They considered the fresh
evidence, not in isolation, but against the background of (i) the character and
strength of the evidence at the trial on which the petitioners were convicted,
and (ii) the other post-trial evidence which tended to cast doubt on the complainer's
alleged admissions. Having formed an
adverse view of the credibility and reliability of the fresh evidence on which
the petitioners relied, they concluded (in paragraph 7 of their Supplementary
Statement of Reasons) that "... the additional evidence was not of such
significance (sic) to lead to the
conclusion that a miscarriage of justice may have occurred".
[12] As regards the juror's visit to an identical block of flats
during the trial, the respondents accepted that this breached section 92(1) of
the 1995 Act, but in all the circumstances declined to hold that a miscarriage
of justice might have occurred. In any
event, as explained in paragraph 14 of their Supplementary Statement of
Reasons, they took the view that it would not be in the interests of justice
for this matter to be the subject of any reference.
Submissions for the petitioners
[13] Senior
counsel began by reminding me of the different statutory provisions which
governed the role of the English and Scottish Commissions respectively. The test for an appeal against conviction
south of the border was whether it was "unsafe", whereas the comparable test in
Scotland was
whether a "miscarriage of justice" had occurred. The latter test had been retained as the sole
ground of appeal against conviction following the report of the Sutherland
Committee in 1999, and the initial issue to be addressed by the respondents under
section 194C was expressly defined by reference to that concept. Furthermore, the role of the Commission south
of the border was restrictively prescribed, in respect that under section 13 of
the Criminal Appeals Act 1995, no reference could be made to the Court of
Appeal "... unless ... the Commission consider that there is a real possibility
that the conviction... would not be upheld were the reference to be made". By contrast, sections 194B and 194C appeared
to confer a wider discretion on the respondents, permitting them to make a
reference "...if they (thought) fit", and then particularising the grounds on
which such a reference might be made.
[14] For a reference to be justified under section 194C(a), the respondents need only believe in the
possibility that a miscarriage of justice might have occurred. Accordingly, subject to section 194C(b), the respondents could refuse to make a reference
only where satisfied that there was no possibility of the Court overturning the
relevant conviction. Whether or not a
miscarriage of justice had in fact occurred was a matter for the appellate court
alone, and in the context of fresh evidence the judgment of the court would
have to be reached by reference to the view which a reasonable jury might take
on the twin issues of credibility/reliability and materiality. In other words, it was not open to the
respondents to rule on an application by substituting their own assessment of
fresh evidence for the view which might, on a reference, be taken by the court
or, at a trial or re-trial, by a reasonable jury. The only proper enquiry open to the
respondents was as to whether, in their view, a miscarriage of justice might
have occurred.
[15] Against that background, the respondents had clearly
misdirected themselves on the proper meaning and application of the test under
section 194C(a).
Miscarriage of justice was a technical concept, or term of art, and as
pointed out in Harper v HMA 2005 S.C.C.R. 245 (at paragraph 33)
it had to involve more than some unspecified general concern or unease
regarding a conviction. Significantly,
published literature emanating from the respondents themselves in the form of
their annual report for 2004/5 ("the annual report") revealed that they saw
themselves as a "truth seeking body" with an overriding objective of assessing
whether the outcome of a case was "fair, just and equitable". The respondents did not appear to recognise
that, since the same term - "miscarriage of justice" - appeared in both
sections 106 and 194C of the same Act of Parliament, it was necessary to apply
their minds to the same issue as would be considered by the court on any reference. Similarly, in certain articles and a letter
written by members of the Commission in 2001 and 2005, the respective authors
wrongly stated that the respondents had "... no need to 'second-guess' the appeal
court's approach to a referral"; that
the respondents "...will have to engage in the evaluation of evidence and act
upon such assessments and, further, ... should not consider themselves bound by
the often highly technical rules of the law of evidence"; that "... the primary function of the
Commission is to assess the likelihood that the accused did not actually commit
the act which led to his conviction";
and that "...the Commission has a unique role in Scotland as an
inquisitorial or 'truth seeking' body which is not unduly bound by the formal
court rules of evidence and procedure, and ... it has always been guided by
considering whether the outcome of a case was 'fair, just and equitable'."
[16] Although ex concessu
it was only the respondents' decisions which were subject to review in these
proceedings, senior counsel submitted that these published materials must
inevitably colour the view which this court might form of Statements of Reasons
in which the correct legal tests were not clearly and unequivocally
applied. Judged on the basis of the
foregoing published materials, the respondents appeared to see themselves, not
just as entitled to make a reference
on grounds wider than those on which
an appeal might, under hitherto established jurisprudence, be expected to
succeed before the court, but also as entitled to withhold a reference on the basis of their own assessment of the
"truth" or "popular justice" of a case without regard to what the court might
do in the event of a reference being made.
[17] Turning to the decisions under review, an examination of the
Statements of Reasons disclosed that, in considering the fresh evidence
tendered on the petitioners' behalf, the respondents had applied the wrong
legal test contrary to the explicit guidance given by the High Court at
paragraph 219 of their decision in Megrahi
v HMA 2002 JC 99. There, the court spelled out the need to
address two separate questions, namely (1) whether the fresh evidence was
capable of being regarded as credible and reliable by a reasonable jury; and (ii) whether it was likely to have had a
material bearing on ... the determination by such a jury of a critical issue at
the trial.
[18] Not only had the respondents made no reference to Megrahi in their Statements of Reasons,
but they had altogether failed to address the first of the questions identified
by the court. There was nothing to
indicate that they had considered what a reasonable jury might make of the
credibility and reliability of the fresh evidence, or even what view the court
might take on that matter. Instead - no
doubt in pursuit of their self-proclaimed "truth finding" role - the
respondents had purported to reach their own conclusions on the credibility and
reliability of the material now before them, and on that false footing had
declined to make the references sought.
[19] Admittedly, the respondents had also purported to reach a view
on the issue of materiality, but since they had done so on the same grounds as
those on which credibility and reliability had been determined, this could not
qualify as a separate exercise pursuant to the court's guidance in Megrahi.
Accordingly, the respondents having failed to address the correct
questions, the decisions under review were ultra
vires and fell to be reduced.
[20] On the issue of the juror's unauthorised visit to the locus, the respondents accepted that
this constituted a breach of section 92(1) of the 1995 Act. However, after considering certain
authorities, they had declined to hold that this might constitute a miscarriage
of justice, and had then, on essentially the same grounds, held that a
reference of the petitioners' cases to the court would not be in the interests
of justice. According to senior counsel,
this was again open to challenge on the basis that the respondents had applied
the wrong legal tests. By reference to a
range of decisions such as Aitken v Wood 1921 J.C. 84; Brims & Others v MacDonald 1993 S.C.C.R. 1061;
Cunningham v HMA 1984 J.C. 37; Drummond
v HMA 2003 S.C.C.R. 108; R.
v Smyth & Others, The Times, 16
September 1998; and R. v Karakaya 2005 EWCA Crim 346, it was accepted that a breach of section 92(1) would not
automatically, and in all situations, amount to a miscarriage of justice. The issue must always be one of fact and
degree in the particular context under consideration. In the circumstances of the present cases,
however, it had to be at least possible that the court would regard the
admitted breach as constituting a miscarriage of justice, bearing in mind that
proof of actual prejudice to the petitioners would not necessarily be required. As Lord Clyde observed in Millar v Dickson 2002 SC (PC) 30 "...The appearance that justice is being
done is as important as the actual doing of justice".
[21] The real problem here for the respondents was that no-one could
now know what had transpired in the jury room when the "investigating" juror
passed on his findings. It was possible
that the effect might have been to damage the complainer's credibility and
reliability, but was it not equally possible that news of the unauthorised
visit might have had the opposite effect, engendering a degree of sympathy for
the complainer and prejudicially affecting the interests of the petitioners? Standing this material uncertainty, the
respondents could not legitimately say (as they now attempted to do) that only
the complainer's interests could have been adversely affected. Applying Lord Marnoch's dictum in Drummond, supra,
it could not be "...affirmed with certainty that no prejudice to the accused
could possibly have occurred".
[22] In this context, the case of Gray and O'Rourke v HMA
2005 J.C. 233 could readily be distinguished on two principal grounds. First,
the juror's unauthorised visit to the locus
in that case was not made for any particular purpose connected with evidence
which had been led at the trial. And second, since the matter came to light
at the time, the trial judge there had an opportunity to give specific
directions to the jury that, in considering their verdict, they must proceed
only on the evidence before them, ignoring altogether the results of any
personal inquiries. Similarly, the recent
decision in Adam v HMA, supra,
could be distinguished on the basis (i) that in that case it was not
established that the juror had in fact sought to gather evidence at the
relevant locus (thus rendering many
of the court's observations obiter); and (ii) that the
jury there impliedly confirmed that their verdict had not been influenced by
what occurred.
[23] While it was true that, at paragraph 14 of their supplementary
Statement of Reasons, the respondents had purported to rely on the "interests
of justice" test as a further basis for refusing the petitioners' applications, that could not avail them for present purposes. This was because, in doing so, the
respondents plainly had not carried out any separate assessment, but had sought
to rely on exactly the same considerations as they had already taken into
account in the context of "miscarriage of justice". Legitimate "interests of justice"
considerations were illustrated at page 15 of the annual report, but no
such matters were mentioned here.
[24] For all of these reasons, senior counsel submitted that the
decisions under review should be reduced, and that the petitioners' cases
should be remitted back to the respondents for reconsideration.
Submissions for the respondents
[25] In response, senior counsel for the respondents began by
addressing me at some length on his clients' practice and policy in determining
applications under the 1995 Act. Part XA
of the Act conferred on the respondents a unique jurisdiction which, in law and
in fact, went well beyond the scope of the jurisdiction exercised by the High
Court in determining appeals. Under
section 194C(a), for example, the Commission had to
consider, not whether a miscarriage of justice had occurred, but whether they
believed that one "... may have
occurred". Moreover, under part (b) of
the same section, the respondents uniquely had to consider whether it would be
in the interests of justice for a reference to be made. The breadth of the discretion thus conferred
was confirmed by the terminology of section 194B.
[26] In addition, the respondents were clothed with extremely wide
powers of investigation in the performance of their functions. Under section 194D, they could act ex proprio motu. Section 194F empowered them to take any steps
which they considered appropriate for assisting them in the exercise of any of
their functions, including the undertaking of enquiries and the obtaining of
statements, opinions or reports. Under
section 194H, precognitions on oath could be requested from "any person", which
would include the accused, the complainer or any witness, or even a member of
the jury. Section 194I conferred a
wide-ranging invasive power to obtain documents. The nature and scope of these various
statutory powers suggested that the respondents were intended by Parliament to
undertake, and act on, whatever factual enquiries they thought fit. It was open to them to assess the
credibility, reliability and significance of any evidence which they obtained,
although in the end the grounds on which a reference might be made were limited
to those spelled out in section 194C of the Act.
[27] The fact that section 194C(a) required the respondents to
consider whether in their view a miscarriage of justice "...may have occurred" was a clear indication of the true width of
their remit. This enabled them to
identify, in the public interest and as a last resort, real concerns about a
conviction which, under existing jurisprudence or under existing rules of
evidence and procedure, might not necessarily be recognised in the context of
an appeal. Nevertheless, if the
interests of justice seemed to warrant such a course, it was open to the
Commission to refer such matters for consideration under section 194B in the
hope that, on reconsideration, the court might yet be persuaded to take a
favourable view.
[28] Applicants such as the petitioners could have no complaint if,
in the exercise of their unique jurisdiction, the respondents took a broader
view than the courts of what might constitute a miscarriage of justice. The thrust of the petitioners' argument was
that, in deciding these applications, the respondents had taken a narrower view
of such matters, and had declined to make references irrespective of what view
the court might be expected to take. However,
senior counsel was at pains to affirm that this was not, and never had been, the
respondents' practice or policy, and that all applications were lawfully determined
by applying the correct legal tests under section 194C(a)
and (b).
[29] In this context the annual report, and the various other
published materials to which reference had been made, were of only peripheral
relevance. They were not themselves the
subject of review. They were addressed
to lawyers and non-lawyers alike. While
they no doubt contained challenging discussion of abstract hypothetical
questions, such as the circumstances in which a miscarriage of justice might
conceivably be identified, the court should resist the petitioners' attempt to
shift the focus of argument away from the respondents' actual decisions in this
instance. The only question for the court
was whether, in the decisions themselves, there could be identified any of the
traditional grounds on which a court of review might interfere. As Lord Bingham of Cornhill, CJ, observed in R. v Criminal
Cases Review Commission, ex parte
Pearson 1999 3 A.E.R. 498, at p. 520,
"We are not
sitting as a court of appeal but as a court of review, and it is no part of our
duty to decide whether the Commission's conclusion was right or wrong but only
whether it was lawful or unlawful. We
are clearly of opinion that it was not irrational. Nor was it vitiated by legal
misdirection. That does not mean that we
would unreservedly indorse every legal observation the Commission made... It is not, however, in our judgment
appropriate to subject the Commission's reasons to a rigorous audit to
establish that they were not open to legal criticism. The real test must be to ask whether the
reasons given by the Commission betray, to a significant extent, any of the
defects which entitle a court of review to interfere. In our judgment the criticisms made of the
reasons given by the Commission do not entitle this court to do so."
[30] Against that background, even acknowledging that the phrase
"miscarriage of justice" by itself should prima
facie denote the same thing under sections 106 and 194C of the 1995 Act,
the jurisdiction of the respondents was framed in broader terms, and it could
not be said that in a given case their decision-making process had to be
restricted to "second-guessing" the likely outcome of an appeal or reference
before the court. Proper emphasis had to
be given to the word "may" in
section 194C(a), and to the width of the further
express discretions conferred under sections 194C(b) and 194B. On a proper analysis of the statutory regime
under which the respondents operated, it was clear that their remit was far
wider than senior counsel for the petitioners had sought to suggest, and in
particular was not limited to considering the very same issues as would arise
before the court on an appeal. In any
event, given the width of the discretions conferred on them elsewhere, there
was no need for the respondents to adopt an unduly restrictive approach to the
question arising under section 194C(a), nor was
there anything in their published literature to suggest that they actually did
so. For example, immediately after the
passage which senior counsel for the petitioners had sought to criticise in the
annual report, there appeared the following unexceptionable statement:
"The Commission
must thereafter determine, taking account of any relevant statutory directions
and case law..., whether it is satisfied that a miscarriage of justice may have
occurred."
As demonstrated by cases such as Crombie v Clark 2001 S.L.T. 635 and Harper
v HMA, supra, the respondents' conception of what might constitute a
miscarriage of justice was not narrower, but considerably wider, than what
would necessarily be expected to succeed before the court on appeal.
[31] Turning now to the petitioners' specific grounds of complaint,
there was nothing to suggest that the respondents' approach to the matter of
the juror's unauthorised visit was tainted by any error of law. Even acknowledging, as the respondents did,
that the visit breached section 92(1) of the 1995 Act, it was clear that
such a breach would not necessarily and automatically constitute a miscarriage
of justice. Even where prejudice to the
accused was involved, miscarriage of justice was only to be presumed: Hume on
Crimes, Vol.II, at pp.404-5. Any
such presumption could be rebutted. A fortiori, in the absence of any
prejudice to the accused, no such presumption would apply. On the authorities, the petitioners accepted these
principles, and in the circumstances of this case it was open to the
respondents to consider, as a matter of fact and degree, whether any possible
prejudice to the petitioners could be identified.
[32] In particular, Gray v
HMA 1994 S.L.T. 1237 and Gray and O'Rourke v HMA, supra, were cases in which appeals were refused despite jurors
having made unauthorised visits to the relevant locus, and despite the consequences of such visits within the jury
room remaining a matter of speculation.
The decision of the English Court of Appeal in R. v Smyth and Others, supra,
was to a similar effect. More
recently, in Adam v HMA, supra,
the court confirmed that a juror's visit to the locus of an alleged offence would not necessarily constitute a
miscarriage of justice, especially where there was no reason to infer that he
or she had thereby learned anything material that was not brought out at the
trial.
[33] In the circumstances of this case, it was legitimately open to
the respondents to conclude that they were not satisfied that a miscarriage of
justice might have occurred. The initial
concern of members of the jury may well have been based on a misunderstanding
of the evidence. Their concern no doubt
arose from the fact that it was obvious, from a common sense point of view, that someone standing under a substantial canopy could
not see upwards beyond it. The
investigating juror lived close to the locus,
and went to an identical building to confirm the position. Having done so, he reported his findings to
his fellow jurors. Importantly, however,
the complainer herself (Day 2, at pp.150-1) agreed in cross-examination
that if she was standing at the door to the flats, and under the canopy, she
could not have seen up to the top of the building. She also accepted that no-one at a flat
window looking down would have been able to see the area of the door. Moreover, as recorded by the respondents in
their initial Statement of Reasons, at least two of the petitioners accepted in
evidence that, from the window of their flat, they had indeed had a
conversation with the complainer as she claimed. The general situation was also confirmed by
the CCTV footage which was viewed in the course of the trial. There was, in the event, absolutely no issue
as to (a) whether the complainer had had a conversation with one or more of the
petitioners at the window of the third floor flat, or (b) whether there was a
direct line of sight between that window and someone standing underneath the
canopy. The live issues which remained
before the jury concerned quite different questions, namely (i) why, if the
complainer was never in fact locked out of the building, she buzzed up to the
petitioners' flat at all, and (ii) why she voluntarily went into that flat rather
than go back upstairs to where her friends and child were waiting on the
fourteenth floor. In the foregoing
circumstances, the respondents were entitled to take the view that the
subject-matter of the juror's visit was of no, or minimal, significance concerning
a matter of obvious common sense on which no issue actually arose at the
trial. The respondents were further
entitled to hold that, in any event, the only person whose credibility and
reliability were liable to be affected by what transpired was the complainer,
and that no possible prejudice to the petitioners could be identified.
[34] Furthermore, as was clear from paragraph 14 of their
supplementary Statement of Reasons, the respondents took the view that a reference
on this ground would not be in the interests of justice. Under section 194C(b)
of the Act they were perfectly entitled to take that decision, and it had not
been shown that they committed any error of law in doing so. No relevant matters had been ignored, nor
irrelevant matters founded on, and it could not be suggested that, in the whole
circumstances, the decision was perverse.
The petitioners' ground of complaint regarding the juror's visit had
therefore not been made out.
[35] As regards the respondents' treatment of the fresh evidence on
which the petitioners' relied, it was accepted that the Statements of Reasons
did not specifically mention Megrahi,
supra, or any other case law.
Equally, the reasons given could have been rather more fully, and less
broadly, expressed. Nevertheless, in
senior counsel's submission, the respondents' decision was reached on a
legitimate basis, and was not demonstrably tainted by any error of law. Paragraph 219 of the court's opinion in Megrahi should not be read as
prescribing a formalistic consideration, in a set order, of the twin issues of
credibility/reliability and materiality.
On the contrary, fresh evidence might be assessed on a broader,
cumulative basis which incorporated both issues, and it was significant that
such an approach had been taken by the court in Gray and O'Rourke, supra, and in William Gray v HMA 2005
HCJAC 104.
[36] Having said that, however, it was clear that the respondents
had in fact addressed both of the Megrahi
issues. Since their decision on
materiality was, word for word, in virtually the same terms as the prescribed
test laid down by the court, it was a reasonable
inference that they had also had in mind the correct legal test relative to
credibility and reliability. The "jury
perspective" was addressed in paragraph 7 of the supplementary Statement
of Reasons and, in line with Megrahi
and with Gray and O'Rourke, supra,
the fresh evidence had correctly been considered in light of all the
circumstances, including the character, quality and strength of the evidence at
the trial on which the petitioners had been convicted.
[37] In addition, the respondents were entitled to regard the fresh
evidence itself as suspicious and unconvincing.
Taking account of her own denials, it was intrinsically unlikely that
the complainer had made gratuitous admissions of perjury to a variety of people
in different circumstances. SB could not
recall who else was there, nor could he explain why he failed to mention the
matter prior to the trial. BF purported
to identify two people present when an alleged admission was made, but on
investigation they denied it and disclosed that the complainer had been
assaulted in an attempt to get her to change her story before the trial. The evidence of CS was inspecific, and
related to an occasion on which she, among others, was drunk. The evidence of DD conflicted with the strong
evidence of injuries and distress at the trial, and the witness was also unable
to explain why he had taken no steps to bring the complainer's alleged
admission to the attention of the authorities prior to the trial.
[38] For the foregoing reasons, the respondents' decision on fresh
evidence had been reached on a legitimate basis and without any demonstrable
error of law. The petitioners' challenge
on that issue was no more soundly based than their challenge regarding the
juror's visit to the locus. In all the circumstances the prayer of the
petition should be refused.
Discussion
[39]
In my view this case must be
approached on the footing that it is only the respondents' treatment of the
petitioners' applications that is under review.
Accordingly, the terms of the annual report, and of any other published
literature which may be thought to reflect the respondents' views, are relevant
only to the extent that they bear upon such review.
[40] In that regard, I have some sympathy
with the submissions of senior counsel for the petitioners. Insofar as such published materials proclaim
that the respondents are a "truth-seeking body" concerned to ascertain whether
the outcome of a case was "fair, just and equitable"; that they "... have to engage in the evaluation
of evidence, and act upon such assessments";
that they have no need to "second guess" the appeal court's approach to
a referral; and that they "... should not consider
themselves bound by the often highly technical rules of the law of evidence",
it seems to me that they risk inducing others to believe (rightly or wrongly)
that the respondents deal with applications as if they enjoyed a wholly
unfettered discretion, and as if, in reaching and acting on their own
conclusions, they were free to ignore the likely attitude of the court in the
event of a reference being made.
[41] Admittedly, the articles from 2001 and 2005 on which emphasis
was laid contain express disclaimers vis-เ-vis
the respondents, and assert that the views discussed are personally held by
their authors. However, the fact that
they respectively emanate from a prominent serving member of the Commission,
and from the respondents' chief executive, may still be thought to afford an
insight into how some of those involved perceive their role in this
context. Similarly, although the annual
report is no doubt a public relations document aimed at lawyers and non-lawyers
alike, the fact that it discusses "truth-seeking" and the search for what is
"fair, just and equitable" under the heading "The Miscarriage of Justice Test" may
arguably convey the impression that, on their own assessment of the merits of
an application, the respondents could properly decline to make a reference even
though, on the same materials, the court might be expected to hold that a
miscarriage of justice had occurred.
[42] Having said that, however, I am ultimately not persuaded that,
in approaching the decisions complained of, the respondents have demonstrably
committed any error of law such as would entitle a court of review to interfere. As regards the published articles (and the
letter which was intimately connected with the former of these), the stated
disclaimers in my view go a long way towards distancing the respondents as a
body from any potentially inappropriate content. More importantly, the passages complained of
in the annual report are immediately qualified by a sentence which is in my
view unexceptionable, and in which the word "thereafter" puts them into a
proper context:
"The Commission
must thereafter determine, taking account of any relevant statutory directions
and case law,... whether it is satisfied that a
miscarriage of justice may have occurred."
[43] On a fair reading, therefore, the relevant section of the
report seems to me to confirm, not only the respondents' laudable desire to see
justice done in an individual case, making full use of the wide-ranging
investigative powers conferred upon them for that purpose, but also their
overriding commitment to applying the correct legal test in line with the
relevant statutory provisions and case law.
This broadly mirrors senior counsel's contention that the respondents'
approach to what might constitute a miscarriage of justice for the purposes of
section 194C(a) was frequently broader, but never
narrower, than the view which the court might be expected to take on a reference
or appeal. In my opinion there is
nothing to prevent the respondents, in the course of exercising their statutory
powers, from searching for what they conceive to be "truth", "fairness",
"justice" or "equity", provided that
in the end of the day their decision is reached on a correct legal basis.
[44] On the matter of fresh evidence, there can be no doubt that the
decisions complained of are not as clearly expressed as they might have
been. In particular, they contain no
express reference to the leading authority of Megrahi, supra, and thus
leave room for argument as to the precise basis on which the respondents
declined to hold that a miscarriage of justice "... might have occurred". However, as senior counsel pointed out,
paragraph 7 of the supplementary Statement of Reasons determines the
question of materiality in virtually identical terms to the relevant guidance
in Megrahi, and I therefore accept
that, as a reasonable inference, the respondents must also be taken to have had
the Megrahi guidance in mind when
considering the issue of credibility/reliability. From there it is but a short step to reading
the respondents' consideration of the evidence before them as addressed to the
question of whether it was, in their judgment, capable of being regarded as
credible and reliable by the court or by a reasonable jury. The fact that, at some points, the respondents
express their own conclusions somewhat tentatively, in terms of "doubt", is
perhaps a further indication that they ultimately had the future perspective of
a court or jury in mind or, more accurately, a further reason why I am unable
to hold that they did not.
[45] It is unfortunate that this was not clearly spelled out in the
decisions complained of, especially when the respondents had two chances to
address the issues in a proper way. In
the end of the day, however, I am not prepared to hold, on the materials and
submissions before me, that the respondents' whole approach to the scope of
their statutory discretion under section 194C(a)
was fundamentally flawed. Significantly,
in Gray and O'Rourke, and in William Gray, the court reached conclusions
on fresh evidence in quite general terms similar to those employed by the
respondents here.
[46] In any event, even if the respondents' approach in law to the
assessment of credibility and reliability were open to serious challenge, I do
not consider that the same can be said of their approach to the question of the
materiality of the new evidence. Since,
on the authority of Megrahi, a
favourable decision on materiality is an essential prerequisite for success in
any appeal based on fresh evidence, and thus for the purposes of any reference
by the respondents, I regard this as a further ground on which the petitioners'
contentions must be rejected.
[47] The only other situation in which this court would be entitled
to interfere would be if the respondents' conclusions on the fresh evidence
were shown to be tainted by "Wednesbury
unreasonableness" or perversity. In my
opinion, no such criticism has been made out here. For the reasons outlined by senior counsel
for the respondents at the hearing, and summarised above at
paragraph [37], the respondents were in my view legitimately entitled to
conclude that the fresh evidence before them, fairly considered alongside the
evidence on which the petitioners were convicted after trial, fell far short,
in character, quality and strength, of what might be expected to impress the
High Court or a reasonable jury as credible and reliable. The evidence itself was vague and
intrinsically unconvincing. It was
substantially contradicted by the complainer and others. There was no plausible explanation as to why
none of the witnesses came forward at the appropriate time. And on the authority of cases such as Megrahi and Gray and O'Rourke, the respondents were further entitled to assess
the relative strength of the evidence on which the petitioners were convicted,
and to consider how far (if at all) the new evidence might be thought capable
of casting doubt upon it.
[48] For all of these reasons I reject the petitioners' contention
that the respondents must be taken to have addressed the credibility and
reliability of the fresh evidence on an erroneous basis.
[49] Turning to the matter of the juror's visit to the locus, I consider that the respondents'
position here is even stronger, and that the petitioners' attack on this ground
must also be rejected as unsound.
[50] In this context, I am not convinced that what happened should
properly be regarded as a breach of section 92(1) of the 1995 Act. Members of a jury are generally encouraged to
bring to a trial, and to the assessment of the evidence led before them, their
collective common sense and experience of life.
Furthermore, as Lord Eassie made clear at paragraph [28] of his opinion
in Gray and O'Rourke, they may also
bring to bear their general knowledge of the locality in which an alleged
offence has taken place, and in that regard merely passing or looking at the locus of an alleged offence, perhaps en route between court and home, would
not ipso facto constitute a breach of
the section. If, therefore, members of a
jury may legitimately doubt or reject evidence which conflicts with what they
consider to be obvious common sense, it is perhaps hard to see why a juror merely
seeking to confirm the obvious on his way home should necessarily be regarded
as committing a breach of section 92(1) capable of invalidating a solemn
criminal trial. I do not here seek to
encourage unauthorised visits or investigations by jurors in any way, but it is
not clear to me that, in the circumstances of the present cases, the borderline
of acceptability was transgressed. In
reaching this conclusion, I am fortified by the obiter observations of the Lord Justice Clerk in Adam, at paragraphs [30] to [32],
(with which the other members of the court agreed), to the effect that a
juror's private visit to the locus of
an alleged offence should not be seen as part of the trial, and accordingly
that in such cases the prohibition in section 92(1) would not be contravened.
[51] Be that as it may, the respondents (both in their Statements of
Reasons and at the hearing before me) bore to accept that the statutory
prohibition in section 92(1) was indeed breached in this case. In the face of that apparent (and in my view
inappropriate) concession, the question to be determined is whether, in
rejecting the proposition that a miscarriage of justice might thereby have
occurred, the respondents were guilty of a fundamental error of law entitling
this court to interfere. In my opinion
that question falls to be answered in the negative. As appears from their supplementary Statement
of Reasons in particular, the respondents correctly recognised that, on the
authorities, not every breach of section 92(1) necessarily constitutes a
miscarriage of justice. For instance, as
Lord Marnoch observed in Drummond,
and as the court confirmed in Adam,
there might be no miscarriage of justice in circumstances where no prejudice to
the accused could be identified. Appeals
arising out of unauthorised visits by jurors were also refused in Gray and Gray and O'Rourke respectively, and in this context it seems to me
that the critical issue is one of fact and degree to be considered in the
particular circumstances of an individual case.
Against that background I am not persuaded that, in approaching the
present case along such lines, the respondents committed any identifiable error
of law.
[52] The next question is whether, in all the circumstances, the
conclusion which the respondents reached on this aspect of the matter can be
branded as perverse. In my opinion that
question must also be answered in the respondents' favour. The juror's visit appears to have arisen as a
result of a misunderstanding by some of his colleagues of the complainer's evidence
at the trial. If an issue arose as to
whether a person standing under a substantial canopy could nevertheless see
vertically upwards through it, and if members of the jury could legitimately
have resolved such an issue on the basis of obvious common sense and their
general experience of life, I am not prepared to hold that a brief attempt by a
single juror to confirm the obvious by physical observation should necessarily have
required the respondents to reach a different decision under section 194C(a).
[53] This conclusion is reached all the more easily when it is borne
in mind that the juror's visit was not to the true locus at all, but to a different building some distance away. The report which he made to his fellow jurors
thus related, quantum valeat, to the
observed situation at that other building.
More importantly, perhaps, there was no live issue on the canopy
question at the trial, since the complainer herself accepted that, if she was
at the entrance door to the flats, she could not have seen up to the window of
the petitioners' flat on the third floor, nor could the petitioners have had
any sight of her. Moreover, at least two
of the petitioners in evidence accepted that they had indeed had a shouted
conversation with the complainer in the period before she re-entered the flats
and made her way up to the third floor.
[54] In these circumstances, it was in my view open to the
respondents to conclude that the juror's visit could not sensibly be regarded
as, even potentially, constituting a miscarriage of justice. As well as relating to an incidental, and
unimportant, detail on which no evidential issue arose at the trial, the
juror's visit told him nothing that was not brought out in evidence, nor indeed
anything which could be thought adverse to the defence. On the contrary, the only person whose
interests might have been prejudicially affected was the complainer. Moreover, in addition to being entitled to
decline to make a reference here under section 194C(a),
I consider that the respondents were in any event entitled to do so under part (b)
of the same section. In holding, as they
did, that in their view it was not in the interests of justice for the matter
to be the subject of a reference, I am not persuaded that they committed any
error of law or reached any perverse conclusion.
Decision
[55] For
all of the foregoing reasons, I consider that the petitioners' applications for
judicial review in this case are ill-founded and must be rejected. In each case, therefore, I shall repel the
petitioners' plea-in-law and refuse the prayer of the petition.
