International Perspectives on Correcting Wrongful Convictions: The Scottish Criminal Cases Review Commission

Article excerpt

INTRODUCTION

Not surprisingly, the problem of wrongful convictions has become a global one.1 Of the many dimensions of the problem, one of the issues in the international discussion is the role of innocence commissions.2 In 1997, the United Kingdom created the first such commission, the U.K. Criminal Cases Review Commission (CCRC).3 This independent body has the power to investigate and refer claims of miscarriage of justice to the U.K. Court of Appeal.4 Norway has a similar body.5 While several U.S. states have study-and-report commissions,6 the only similar, that is, direct review commission in the United States is the North Carolina Innocence Inquiry Commission.7 One commission that has received virtually no international attention is the Scottish Criminal Cases Review Commission (SCCRC),8 which was created two years after the U.K.'s CCRC.9 Like its older sister, the SCCRC is an independent body with the power to investigate and refer claims of miscarriage of justice to the domestic appellate court.10 The SCCRC is the subject of this article.

It should be said at the outset that it is not an easy task to analyze and describe the SCCRC's work in correcting wrongful convictions. Unlike its U.K. counterpart, the SCCRC works under strict statutory non-disclosure rules that keep much of its work from public view.11 It is thus impossible, for example, to review cases that are considered and investigated but not referred to the court because the SCCRC is not permitted to disclose its statement of reasons (for referral or non-referral).12 For the same reason, it is not possible to know the basis for a referral, because the statement of reasons in referral cases is also confidential.13 While the basis for the referral is sometimes discussed in the ultimate court decision on a referred case, there have in fact been very few referrals and even fewer written decisions. From its inception in 1999 to March 2013, the SCCRC had referred only 115 cases.14 Only fifty-one have resulted in written decisions.15 While this may be an appropriate number of referrals, it is a challenge to discern patterns in such a small body of cases.

For these reasons, I requested and was given permission to visit the SCCRC's office in Glasgow, Scotland. During that visit I was graciously given the opportunity to speak at length with many members of the SCCRC staff, including its Executive Director, Gerard Sinclair. The staff was extremely forthcoming and it was a fascinating visit.

Ultimately, and despite these limitations, it is possible to draw some interesting conclusions about the work of the SCCRC.16 First, the SCCRC seems willing to refer cases to the courts based on fresh evidence (what we call "newly discovered evidence"), when the Commission concludes that evidence is important and credible, even if the court ultimately disagrees and holds that it is not significant enough to require quashing the conviction. In fact, the SCCRC seems quite confident in drawing its own conclusions about the credibility and significance of fresh evidence in cases in which the court's ultimate decision reveals this to have been a fairly debatable question. The same is true of the SCCRC's willingness to refer cases demonstrating that the Crown had improperly failed to disclose exculpatory evidence to the defense (what we call a Brady violation).17 Faced with a case involving serious prosecutorial non-disclosure, the SCCRC is likely to take a broad view of whether the non-disclosed evidence was important to the case, even when the court ultimately disagrees. Finally, the SCCRC takes very seriously the requirement that there be something new in the case before it can be referred;18 consistent with the Court of Criminal Appeal's scope of review, the SCCRC will not refer a case in which it is troubled by the reliability of the verdict in the absence of new evidence or a new legal ground to do so.19 This same position has led to some substantial criticism of the CCRC. …