Criminal Procedure (Scotland) Act 1995, section 106

Right of appeal

PART VIII Appeals from Solemn Proceedings

(1)Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court—

(a)against such conviction;

(b)subject to subsection (2) below, against the sentence passed on such conviction;

[F958 (ba)against the making of an order for lifelong restriction;F958]

[F959 (bb)against any decision not to exercise the power conferred by section 205A(3), [F960 or 205B(3)F960] of this Act;F959]

(c)against his absolute discharge or admonition;

[F961 (d)against any drug treatment and testing order;

(dza)against any disposal under section 227ZC(7)(a) to (c) or (e) or (8)(a) of this Act;F961]

[F962 (da)against any decision to remit made under section 49(1)(a) of this Act;F962]

F963 (db). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F963 (dc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)against any order deferring sentence; or

(f)against

[F964 (i)F964] both such conviction and, subject to subsection (2) below, such sentence or disposal or order.

F965 (ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F965 (iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)There shall be no appeal against any sentence fixed by law.

[F966 (3)By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on—

(a)subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; and

(b)the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned.

(3A)Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard.

(3B)Where the explanation referred to in subsection (3A) above or, as the case may be, (3C) below is that the evidence was not admissible at the time of the original proceedings, but is admissible at the time of the appeal, the court may admit that evidence if it appears to the court that it would be in the interests of justice to do so.

(3C)Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence—

(a)which is—

(i)from a person; or

(ii)of a statement (within the meaning of section 259(1) of this Act) by a person,

who gave evidence at the original proceedings; and

(b)which is different from, or additional to, the evidence so given,

it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.

(3D) For the purposes of subsection (3C) above, “independent evidence” means evidence which—

(a)was not heard at the original proceedings;

(b)is from a source independent of the person referred to in subsection (3C) above; and

(c)is accepted by the court as being credible and reliable.F966]

(4)Any document, production or other thing lodged in connection with the proceedings on the trial of any person who, if convicted, is entitled or may be authorised to appeal under this Part of this Act, shall, in accordance with subsections (5) to (9) below, be kept in the custody of the court in which the conviction took place.

(5)All documents and other productions produced at the trial of a convicted person shall be kept in the custody of the court of trial in such manner as it may direct until any period allowed under or by virtue of this Part of this Act for lodging intimation of intention to appeal has elapsed.

(6)Where no direction is given as mentioned in subsection (5) above, such custody shall be in the hands of the sheriff clerk of the district of the court of the second diet to whom the clerk of court shall hand them over at the close of the trial, unless otherwise ordered by the High Court on an intimation of intention to appeal being lodged, and if within such period there has been such lodgement under this Part of this Act, they shall be so kept until the appeal, if it is proceeded with, is determined.

(7)Notwithstanding subsections (5) and (6) above, the judge of the court in which the conviction took place may, on cause shown, grant an order authorising any of such documents or productions to be released on such conditions as to custody and return as he may deem it proper to prescribe.

(8)All such documents or other productions so retained in custody or released and returned shall, under supervision of the custodian thereof, be made available for inspection and for the purpose of making copies of documents or productions to a person who has lodged an intimation of intention to appeal or as the case may be, to the convicted person’s counsel or agent, and to the Crown Agent and the procurator fiscal or his deputes.

(9)Where no intimation of intention to appeal is lodged within the period mentioned in subsection (6) above, all such documents and productions shall be dealt with as they are dealt with according to the existing law and practice at the conclusion of a trial; and they shall be so dealt with if, there having been such intimation, the appeal is not proceeded with.

Definitions used in section 106 17

indictment

“indictment” includes any indictment whether in the sheriff court or the High Court framed in the form set out an Act of Adjournal or as nearly as may be in such form;

Defined in s.307(1) · see it in the full Act
appeal

(a) “appeal” includes an appeal under section 288AA of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998 ; and

Defined in s.121(5) · see it in the full Act

(5) In subsections (1) and (3) above, “appeal” includes an appeal under section 288AA of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998 .

Defined in s.122(5) · see it in the full Act
High Court

“High Court” and “Court of Justiciary” shall mean “High Court of Justiciary” and shall include any court held by the Lords Commissioners of Justiciary, or any of them;

Defined in s.307(1) · see it in the full Act
conviction

“conviction”, in relation to a previous conviction by a court outside Scotland, means a final decision of a criminal court establishing guilt of a criminal offence;

Defined in s.307(1) · see it in the full Act

(1) For the purposes of paragraph (b) of subsection (1) of each of sections 205A and 205B of this Act “conviction” includes—

(a)a finding of guilt in respect of which the offender was admonished under section 181 of the Criminal Procedure (Scotland) Act 1975 (admonition); and

(b)a conviction for which an order is made placing the offender on probation,

Defined in s.205C(1) · see it in the full Act
sentence

“sentence” includes any order of the High Court made on conviction with reference to the person convicted or his wife or children, and any recommendation of the High Court as to the making of a deportation order in the case of a person convicted and the power of the High Court to pass a sentence includes a power to make any such order of the court or recommendation, and a recommendation so made by the High Court shall have the same effect for the purposes of Articles 20 and 21 of the Aliens Order 1953 as the certificate and recommendation of the convicting court.

Defined in s.132 · see it in the full Act

“sentence”, whether of detention or of imprisonment, means a sentence passed in respect of a crime or offence and does not include an order for committal in default of payment of any sum of money or for contempt of court;

Defined in s.307(1) · see it in the full Act
order for lifelong restriction

“order for lifelong restriction” means an order under section 210F(1) of this Act ;

Defined in s.307(1) · see it in the full Act
drug treatment and testing order

“drug treatment and testing order” has the meaning assigned to it in section 234B(2) of this Act ;

Defined in s.307(1) · see it in the full Act
order

“order” means any order, byelaw, rule or regulation having statutory authority;

Defined in s.307(1) · see it in the full Act
justice

“justice” includes the sheriff and any ... justice of the peace;

Defined in s.307(1) · see it in the full Act
proceedings

“proceedings” includes any process before a court, or any office holder of a court (for example, a process by which a warrant may be obtained for the purpose of investigating a suspected offence),

Defined in s.303O(1) · see it in the full Act
court

“court” means any of—

(a)

the High Court of Justiciary,

(b)

the Sheriff Appeal Court when exercising criminal jurisdiction,

(c)

the sheriff courts when exercising criminal jurisdiction, and

(d)

justice of the peace courts,

Defined in s.303O(1) · see it in the full Act
document

(b) “document” includes a copy of a document.

Defined in s.303F · see it in the full Act
sheriff clerk

“sheriff clerk” includes sheriff clerk depute, and extends and applies to any person duly authorised to execute the duties of sheriff clerk;

Defined in s.307(1) · see it in the full Act
diet

“diet” includes any continuation of a diet;

Defined in s.307(1) · see it in the full Act
judge

“judge”, in relation to solemn procedure, means a judge of a court of solemn criminal jurisdiction and, in relation to summary procedure, means any sheriff or any judge of a JP court ;

Defined in s.307(1) · see it in the full Act
procurator fiscal

“procurator fiscal” means the procurator fiscal for a sheriff court district, and includes assistant procurator fiscal and procurator fiscal depute and any person duly authorised to execute the duties of the procurator fiscal;

Defined in s.307(1) · see it in the full Act
existing

“existing” means existing immediately before the commencement of this Act;

Defined in s.307(1) · see it in the full Act

Cases considering section 106 5

Jude and others v Her Majesty’s Advocate (Scotland)

[2011] UKSC 55 · 23 November 2011Interprets

The section supplies the procedural vehicle for solemn criminal appeals. It does not alter the conclusion that an appeal relying on Convention rights remains part of criminal proceedings brought by the Lord Advocate (see paras [14]; [43]; [49]). The provision identifies matters, including conviction and sentence, against which a convicted person may appeal. It formed part of the statutory context showing that the 1995 Act contains its own appellate scheme (see para [43]). The language permitting an appellant to bring an alleged miscarriage of justice under review did not determine whether the appeal was separate proceedings brought by the convicted person for section 100 purposes (see paras [14]; [47]).

Fraser v Her Majesty’s Advocate (Scotland)

[2011] UKSC 24 · 25 May 2011Limits

The expression “miscarriage of justice” has no fixed statutory definition. In a non-disclosure case it must be read compatibly with the right to a fair trial and is satisfied where there is a real possibility of a different verdict (see paras [18]-[20]; [26]-[29]). An appeal may allege a miscarriage based on the existence and significance of evidence not heard at the original proceedings. This statutory fresh-evidence threshold differs from the disclosure threshold applicable to an article 6 claim (see paras [18]-[20]; [25]). The provision identifies an unreasonable jury verdict as another possible basis for alleging a miscarriage of justice (see para [18]). Fresh evidence may found an appeal only where there is a reasonable explanation why it was not heard at the original proceedings. That requirement does not define the disclosure threshold for an article 6 claim (see paras [18]-[20]; [25]). The provision permits admission of evidence which was inadmissible at trial but has become admissible under the law current at the appeal (see para [18]). The provision concerns a trial witness who seeks to change their account on appeal (see para [18]). The provision concerns a trial witness who seeks to change their account on appeal (see para [18]).

McInnes v Her Majesty’s Advocate (Scotland)

[2010] UKSC 7 · 10 February 2010

The statutory miscarriage-of-justice ground enables the appeal court to remedy an article 6 breach by assessing whether the trial as a whole was fair and allowing the appeal if it was not (see paras [20]; [23]).

What each judgment says about section 106 is in the case-law panel in the full Act.

Amendments and notes

14 notes from legislation.gov.uk

Amendments

  1. F958S. 106(1)(ba) inserted (19.6.2006 for certain purpose and otherwise prosp.) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 1(2), 89, Sch. 1 para. 2(4); S.S.I. 2006/332, art. 2 text inserted prospectively or the amendment may be in effect for limited purposes, see the commentary.
  2. F959S. 106(1)(bb) inserted (20.10.1997) by 1997 c. 48, s. 18(1); S.I. 1997/2323, art. 3, Sch. 1
  3. F960Words in s. 106(1)(bb) substituted (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 para. 119; S.I. 1998/2327, art. 2(1)(y)(2)(kk)
  4. F961S. 106(1)(d)(dza) substituted for s. 106(1)(d) (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 14(2), 206(1), Sch. 2 para. 7; S.S.I. 2010/413, art. 2, Sch. (with art. 3)
  5. F962S. 106(1)(da) inserted (1.8.1997) by 1997 c. 48, s. 23(b); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4 , 5)
  6. F963S. 106(1)(db) (dc) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 14(a) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))
  7. F964Words in s. 106(1)(f) become s. 106(1)(f)(i) (10.1.2005) by virtue of Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(2)(b), 22(2); S.S.I. 2004/522, art. 2
  8. F965S. 106(1)(f)(ii) (iii) repealed (28.2.2011) by Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), s. 101(2), sch. 4 para. 14(b) (with ss. 90, 99); S.S.I. 2011/157, art. 2(a) (with art. 5(1))
  9. F966S. 106(3)-(3D) substituted (1.8.1997) for s. 106(3) by 1997 c. 48, s. 17(1); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4 , 5)

Modifications

  1. C91S. 106 amended (1.4.1996) by 1995 c. 43, ss. 10(5), 50(2)
  2. C92S. 106 extended (19.2.2001) by 2000 c. 11, ss. 7(4)(b), 8(1)(c)(ii); S.I. 2001/421, art. 2
  3. C93S. 106 extended (15.12.2011) by Terrorism Prevention and Investigation Measures Act 2011 (c. 23), s. 31(2), Sch. 3 para. 4(3)(c) (with Sch. 8)
  4. C94S. 106 extended (12.2.2015) by Counter Terrorism and Security Act 2015 (c. 6), s. 52(5), Sch. 4 para. 4(3)(c)
  5. C95S. 106 extended (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 9 para. 4(3)(c) (with s. 97); S.I. 2023/1272, reg. 2(b)