Gordon v Scottish Criminal Cases Review Commission

When deciding whether a possible miscarriage of justice should be referred to the High Court, the Scottish Criminal Cases Review Commission must make an independent and broad evaluation of the interests of justice. It must have regard to finality and certainty, but the statutory test cannot be applied mechanically.

In a case affected by a subsequent change in the law governing police interviews, the Commission may consider that the accused has always accepted the truth of the relevant admission, never challenged the fairness of the interview or its use, and relied on the interview to present a defence without giving evidence. It will not normally serve the interests of justice to quash a conviction merely because the law as subsequently understood left no admissible corroboration of a fact which was never disputed.

The appellant was convicted of rape after the Crown used admissions from a police interview, conducted without prior access to legal advice, to corroborate that sexual intercourse had occurred. He maintained that intercourse was consensual and relied on the same interview to place that defence before the jury without giving evidence.

After two unsuccessful appeals, the decision in Cadder v HM Advocate [2010] UKSC 43 altered the law governing access to legal advice before police questioning. The Commission accepted that a miscarriage of justice might have occurred because the admission supplied the only corroboration that intercourse occurred. It nevertheless concluded under section 194C of the Criminal Procedure (Scotland) Act 1995 that a reference was not in the interests of justice.

The Lord Ordinary refused judicial review in [2013] CSOH 13, and the Extra Division upheld that decision in [2013] CSIH 101. The issue before the Supreme Court was whether the Commission had erred in considering the continuing acceptance of the admission, the absence of earlier fairness challenges, and the appellant’s reliance on the interview at trial.

1. Appeal dismissed unanimously. Lord Reed, with whom Lord Kerr, Lord Clarke, Lord Hughes and Lord Hodge agreed, held that the Commission had committed none of the alleged errors of law. The courts below had therefore reached the correct conclusion.

2. The Commission was entitled to consider that the appellant had never disputed the truth of his admission that sexual intercourse occurred. It will not normally be in the interests of justice to quash a conviction merely because the law as subsequently understood leaves no admissible corroboration of a fact which was never disputed. Relevant countervailing matters included whether legal advice might have led the suspect to remain silent and whether other corroborative evidence could have been obtained. Those possibilities did not remove the relevance of the continuing acceptance of the admission.

3. The absence of any challenge during two appeals to the fairness of the interview or the Crown’s use of it was also relevant. Although Cadder v HM Advocate [2010] UKSC 43 established a new basis for excluding answers obtained without access to legal advice, established grounds of objection based on unfair conduct or unfair use already existed. The Commission was entitled to distinguish a case in which no such complaint had ever been made.

4. The Commission could take account of the appellant’s reliance on the interview to present his defence of consent. Admission of the whole interview enabled him to put that defence before the jury without giving evidence and exposing his account to cross-examination. His use of that opportunity remained relevant even though the Crown had already introduced the interview.

5. The Commission’s task under section 194C of the Criminal Procedure (Scotland) Act 1995 is an independent judgment. It is not identical to the High Court’s function under section 194DA. The expression “interests of justice” has no precise definition capable of mechanical application. It requires a broad evaluation of the circumstances of the individual case, including the statutory need for finality and certainty.

6. The cases relied on by the appellant did not establish an inconsistent approach. In M v HM Advocate; Gallacher v HM Advocate [2012] HCJAC 121, the disputed interview statements bore on contested issues and their truth was not accepted. The circumstances were therefore materially different. The proceedings in Chamberlain-Davidson v HM Advocate did not suggest that the Commission was prohibited from considering the matters relied on here.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The Commission had not erred in law: [2017] UKSC 20.
2. Inner House of the Court of Session, Extra Division: The Lord Ordinary’s refusal of judicial review was upheld: [2013] CSIH 101.
3. Court of Session, Outer House: Lord Pentland refused the application for judicial review: [2013] CSOH 13.