POTENTIAL JUDICIAL REVIEW / SCCRC

The basis for the Judicial Review proceedings will be that the SCCRC has misdirected itself in law. It is our contention that the SCCRC has taken unto itself a discretion which was not conferred upon it by Parliament. One of the grounds in which a referral was sought involved the emergence of new evidence casting serious doubt on the credibility and reliability of the complainer herself. The new evidence consisted of numerous friends of the complainer stating she had confessed to fabricating the whole rape story for money and attention. The approach in which the SCCRC has adopted in relation to this collection of evidence has been to discount it as not being credible without allowing it to be received and tested by the Appeal Court. It has been suggested in Clayton & Tomlinson [2001 : 11:357] that were the Appeal Court itself to act in this manner there would be a breach of the fairness requirements of Article 6 of the European Convention on Human Rights. Perhaps the most breathtaking of the SCCRC’s conclusions in rejecting our application was that the misconduct of a juror in our case (apparently accepted by the SCCRC as amounting to a ‘fundamental irregularity’) does not require to be addressed by the Appeal Court. It appears the jury member unearthed evidence that proved the complainer was lying in court and the SCCRC have come to the conclusion to reject this ground of Appeal due to the fact this evidence only contradicted the complainer’s testimony in court. Such is the ‘Mad Hatters Tea Party’ world of the SCCRC.

In support of its position on this question the SCCRC has cited the case of Drummond V HMA :2003:SCCR 108 whose ratio stipulate that the ‘necessary result’ of such a ‘fundamental irregularity’ is ‘…that any ensuing conviction will fall.’ In that case Lord Marnoch suggested that the breach of such a fundamental jury provision did not require an exercise to look ‘behind’ or ‘beyond’ the irregularity since to do so would be ‘obtiose’. Perversely the SCCRC has embarked on such an exercise, but with none of the transparency required by the ‘Convention’. It seems that the SCCRC has latched onto the non-binding dicta of Lord Marnoch to justify its departure from his ratio: ‘The situation might be different if it could be affirmed with certainty that no prejudice to the accused could possibly have occurred.’ In our estimation the SCCRC is not in a position to offer such a guarantee in the circumstances of our case – even if the proposition behind such an enquiry were to be conceded by us.

Another major tranche of argument submitted on our behalf related to the issue of ‘mens rea’ or ‘state of mind’ of the accused in the case of a defence of an ‘honest belief’ that the complainer was consenting. In rejecting this ground the SCCRC has cited viz Gordon V HMA 2004 which is viewed by my solicitors as having being wrongly decided by the Appeal Court and which appears likely to give rise to further representations, perhaps to the Strasbourg Court. To further rub salt into our wounds it appears the SCCRC are currently investigating the Gordon case in their attempts to establish whether the rape conviction is safe. With reference to our case and Singh V HMA 2000 it is quite clear the SCCRC are rejecting cases with support and reference being made to a case in which they are currently treating as an alleged miscarriage of justice. This could raise serious repercussions if the SCCRC were to refer the Gordon case back to the Appeal Court thus proving the SCCRC’s actions to be totally unethical.

We were represented in our applications to the SCCRC by three of Scotland’s leading senior counsel, namely Mr Gordon Jackson QC, Mr John Carroll (Solicitor Advocate) and Mr James Keegan (Solicitor Advocate). Messrs McClure Collins, through their civil division in Glasgow have appointed leading senior counsel with extensive Judicial Review experience to provide to us an Opinion in respect of the merits of petitioning the Court of Session for Judicial Review of the SCCRC’s refusal to refer our case to the Appeal Court. We anticipate a favourable Opinion per Mr Aiden O’Neill QC in the not too distant future. Once in possession of the Opinion we will be instructing our lawyers to ask the Court of Session to set aside the preposterous decision of the SCCRC and require the SCCRC to reconsider the matter according to a proper construction of the applicable law. more....