- Asked by: Bill Kidd, MSP for Glasgow, Scottish National Party
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Date lodged: Wednesday, 30 April 2008
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Current Status:
Answered by Kenny MacAskill on 9 May 2008
To ask the Scottish Executive what constitutes defective representation by solicitors.
Answer
The approach to be taken by the courts in cases in which there is an allegation of defective representation is defined in
Anderson vs H.M. Advocate (1996 SCCR 114). The then Lord Justice General stated that the conduct of the defence by the accused''s legal representative can only provide a ground for appeal if it deprives the accused of a fair trial. He further stated that this can only have occurred where the conduct was such that the accused''s defence was not presented to the court.
This may be because the accused was deprived of the opportunity to present his defence; or because his legal representative acted contrary to his instructions as to the defence he wished to be put forward; or because of other conduct which, because his defence had not been put, had the effect of denying him a fair trial.
In considering applications for review based on defective representation, the SCCRC applies the above approach.
- Asked by: Bill Kidd, MSP for Glasgow, Scottish National Party
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Date lodged: Wednesday, 30 April 2008
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Current Status:
Answered by Kenny MacAskill on 9 May 2008
To ask the Scottish Executive whether it considers it to be in the public interest to disclose the names of solicitors referred to the Scottish Criminal Cases Review Commission for defective representation.
Answer
Solicitors are not referred to the SCCRC. Once an application has been reviewed by the SCCRC it can be referred to the High Court.
When the court considers a case, the details of that case (including the names of any solicitors or other legal representatives involved) will be contained in any published opinion and will be a matter of public record.
Section 194J of the Criminal Procedure (Scotland) Act 1995 makes it an offence for any member or employee of the SCCRC to disclose information obtained by the SCCRC in the exercise of any of its functions. The possibility of information provided by applicants, witnesses and/or victims subsequently being disclosed, other than in court, could undermine public confidence in the criminal justice system, including the work of the SCCRC. Witnesses and/or people under investigation should not be inhibited or deterred from co-operating in investigations by the possibility that information provided may be disclosed or that their identity is revealed to the public, outwith the protection of the court. Accordingly, such information is not normally made available.
- Asked by: Bill Kidd, MSP for Glasgow, Scottish National Party
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Date lodged: Wednesday, 30 April 2008
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Current Status:
Answered by Kenny MacAskill on 9 May 2008
To ask the Scottish Executive how many freedom of information requests received by the Scottish Criminal Cases Review Commission since the Freedom of Information (Scotland) Act 2002 came into force have been referred to the Scottish Information Commissioner.
Answer
One such request had been referred to the Scottish Information Commissioner by 31 March 2008.
- Asked by: Bill Kidd, MSP for Glasgow, Scottish National Party
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Date lodged: Wednesday, 30 April 2008
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Current Status:
Answered by Kenny MacAskill on 9 May 2008
To ask the Scottish Executive how many freedom of information requests have been received by the Scottish Criminal Cases Review Commission since the Freedom of Information (Scotland) Act 2002 came into force.
Answer
The Scottish Criminal Cases Review Commission had received a total of 32 such requests by 31 March 2008.
- Asked by: Bill Kidd, MSP for Glasgow, Scottish National Party
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Date lodged: Tuesday, 29 April 2008
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Current Status:
Answered by Kenny MacAskill on 9 May 2008
To ask the Scottish Executive what powers the Cabinet Secretary for Justice has to determine what is defined as an operational matter for Chief Constables.
Answer
I refer the member to the answer to question S3W-12400 on 8 May 2008. All answers to written parliamentary questions are available on the Parliament''s website; the search facility for which can be found at
http://www.scottish.parliament.uk/webapp/wa.search.
- Asked by: Bill Kidd, MSP for Glasgow, Scottish National Party
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Date lodged: Wednesday, 30 April 2008
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Current Status:
Answered by Kenny MacAskill on 9 May 2008
To ask the Scottish Executive how many freedom of information requests received by the Scottish Criminal Cases Review Commission since the Freedom of Information (Scotland) Act 2002 came into force have been (a) disclosed in the first instance, (b) refused in the first instance, (c) disclosed after review and (d) refused after review.
Answer
Nineteen requests for information, made under the Freedom of Information (Scotland) Act 2002, have resulted in information being released, while eight have been refused. Two requests resulted in partial disclosure. To date, four requests for review have been received and, in each case, the original decision to withhold information was found to have been correct.
In addition, in one case the SCCRC did not hold the information requested and, in another, the information requested was obtained from another source.
- Asked by: Bill Kidd, MSP for Glasgow, Scottish National Party
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Date lodged: Wednesday, 30 April 2008
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Current Status:
Answered by Kenny MacAskill on 9 May 2008
To ask the Scottish Executive how many freedom of information requests received by the Scottish Criminal Cases Review Commission since the Freedom of Information (Scotland) Act 2002 came into force, referred to the Scottish Information Commissioner and ordered to be disclosed have been appealed by the Scottish Criminal Cases Review Commission.
Answer
The Scottish Information Commissioner has never instructed the Scottish Criminal Cases Review Commission to disclose information, therefore no such appeals have ever been made.
- Asked by: Bill Kidd, MSP for Glasgow, Scottish National Party
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Date lodged: Wednesday, 30 April 2008
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Current Status:
Answered by Kenny MacAskill on 9 May 2008
To ask the Scottish Executive how many appeals against convictions have been received by the Scottish Criminal Cases Review Commission in each year since 1999, broken down by grounds for appeal.
Answer
The information requested is set out in the following table.
Number of applications received by the SCCRC, broken down by main grounds of review - 1 April 1999 to 31 March 2008
| Ground of Review | 1999-2000 | 2000-01 | 2001-02 | 2002-03 | 2003-04 |
| 110 Day Rule | 0 | 0 | 0 | 0 | 0 |
| Advanced Technology | 1 | 3 | 0 | 1 | 0 |
| Change in the Law | 1 | 0 | 1 | 0 | 2 |
| Change of Witness Testimony | 2 | 0 | 0 | 0 | 0 |
| Commission''s Powers Required | 0 | 0 | 0 | 1 | 0 |
| Comparative Justice | 0 | 0 | 0 | 0 | 0 |
| Conspiracy | 0 | 0 | 0 | 1 | 2 |
| Credibility/Reliability of Evidence | 1 | 3 | 5 | 1 | 9 |
| Credibility/Reliability of Witness | 0 | 0 | 0 | 1 | 3 |
| Defective Representation | 23 | 20 | 19 | 19 | 17 |
| Denies Acting in Concert | 0 | 1 | 0 | 0 | 0 |
| Diminished Responsibility | 0 | 0 | 4 | 3 | 0 |
| Duress | 0 | 0 | 0 | 3 | 0 |
| Excessive Sentence | 3 | 3 | 0 | 2 | 5 |
| False Accusations | 0 | 1 | 0 | 1 | 0 |
| False Confession | 0 | 0 | 1 | 0 | 0 |
| Human Rights Issue | 5 | 2 | 2 | 2 | 2 |
| Illegal Search | 0 | 0 | 0 | 1 | 0 |
| Improper Service of Indictment | 0 | 1 | 0 | 0 | 0 |
| Jury Misconduct | 0 | 1 | 0 | 0 | 0 |
| Lack of Corroboration | 1 | 2 | 0 | 2 | 0 |
| Mental Health Issues | 0 | 0 | 0 | 0 | 0 |
| Misdirection by Trial Judge | 1 | 4 | 4 | 6 | 4 |
| Mistaken Identity | 0 | 0 | 1 | 0 | 1 |
| New Evidence | 34 | 16 | 12 | 5 | 4 |
| New Witness | 0 | 0 | 3 | 4 | 2 |
| Perjury | 15 | 3 | 3 | 2 | 1 |
| Point of Law | 1 | 0 | 0 | 0 | 0 |
| Police Misconduct | 4 | 1 | 3 | 7 | 3 |
| Procedural Irregularity | 2 | 0 | 2 | 1 | 0 |
| Review of Art and Part | 1 | 0 | 0 | 0 | 0 |
| Self Defence | 1 | 0 | 0 | 0 | 0 |
| Sufficiency | 0 | 0 | 0 | 2 | 0 |
| Unfair Trial | 10 | 0 | 4 | 9 | 16 |
| Unreasonable Jury | 2 | 0 | 4 | 1 | 0 |
| Wrong Sentence Imposed | 0 | 0 | 0 | 0 | 0 |
| Wrongful Conviction | 0 | 1 | 0 | 2 | 4 |
| Not Stated | 12 | 7 | 3 | 2 | 7 |
| Totals | =SUM(ABOVE) 120 | =SUM(ABOVE) 69 | =SUM(ABOVE) 71 | =SUM(ABOVE) 79 | =SUM(ABOVE) 82 |
| Ground of Review | 2004-05 | 2005-06 | 2006-07 | 2007-08 | Total |
| 110 Day Rule | 2 | 0 | 0 | 0 | =SUM(LEFT) 2 |
| Advanced Technology | 0 | 0 | 0 | 0 | =SUM(LEFT) 5 |
| Change in the Law | 0 | 0 | 0 | 0 | =SUM(LEFT) 4 |
| Change of Witness Testimony | 0 | 0 | 0 | 0 | =SUM(LEFT) 2 |
| Commission''s Powers Required | 0 | 0 | 0 | 0 | =SUM(LEFT) 1 |
| Comparative Justice | 1 | 2 | 1 | 0 | =SUM(LEFT) 4 |
| Conspiracy | 0 | 3 | 0 | 2 | =SUM(LEFT) 8 |
| Credibility/Reliability of Evidence | 27 | 24 | 18 | 13 | =SUM(LEFT) 101 |
| Credibility/Reliability of Witness | 2 | 5 | 3 | 6 | =SUM(LEFT) 20 |
| Defective Representation | 9 | 22 | 20 | 19 | =SUM(LEFT) 168 |
| Denies Acting in Concert | 0 | 0 | 0 | 0 | =SUM(LEFT) 1 |
| Diminished Responsibility | 0 | 0 | 0 | 0 | =SUM(LEFT) 7 |
| Duress | 0 | 0 | 0 | 0 | =SUM(LEFT) 3 |
| Excessive Sentence | 6 | 7 | 1 | 2 | =SUM(LEFT) 29 |
| False Accusations | 1 | 4 | 1 | 2 | =SUM(LEFT) 10 |
| False Confession | 1 | 0 | 0 | 0 | =SUM(LEFT) 2 |
| Human Rights Issue | 2 | 1 | 0 | 0 | =SUM(LEFT) 16 |
| Illegal Search | 0 | 0 | 0 | 0 | =SUM(LEFT) 1 |
| Improper Service of Indictment | 0 | 1 | 0 | 0 | 2 |
| Jury Misconduct | 1 | 4 | 1 | 1 | 8 |
| Lack of Corroboration | 1 | 14 | 0 | 0 | 20 |
| Mental Health Issues | 1 | 3 | 5 | 1 | 10 |
| Misdirection by Trial Judge | 3 | 5 | 2 | 4 | 33 |
| Mistaken Identity | 0 | 1 | 1 | 1 | 5 |
| New Evidence | 3 | 3 | 3 | 3 | 83 |
| New Witness | 0 | 0 | 0 | 0 | 9 |
| Perjury | 0 | 0 | 0 | 1 | 25 |
| Point of Law | 0 | 1 | 0 | 0 | 2 |
| Police Misconduct | 4 | 5 | 0 | 0 | 27 |
| Procedural Irregularity | 0 | 0 | 0 | 0 | 5 |
| Review of Art and Part | 0 | 0 | 0 | 0 | 1 |
| Self Defence | 1 | 2 | 2 | 0 | 6 |
| Sufficiency | 0 | 1 | 1 | 1 | 5 |
| Unfair Trial | 7 | 7 | 17 | 13 | =SUM(LEFT) 83 |
| Unreasonable Jury | 1 | 0 | 1 | 1 | 10 |
| Wrong Sentence Imposed | 0 | 2 | 0 | 0 | 2 |
| Wrongful Conviction | 2 | 2 | 4 | 2 | =SUM(LEFT) 17 |
| Not Stated | 5 | 3 | 0 | 1 | =SUM(LEFT) 40 |
| Totals | =SUM(ABOVE) 80 | =SUM(ABOVE) 122 | =SUM(ABOVE) 81 | =SUM(ABOVE) 73 | =SUM(LEFT) 777 |
It should be noted that other grounds of review may subsequently be identified. However the commission''s system records only the main ground in the first instance.
- Asked by: Bill Kidd, MSP for Glasgow, Scottish National Party
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Date lodged: Wednesday, 30 April 2008
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Current Status:
Answered by Kenny MacAskill on 9 May 2008
To ask the Scottish Executive what action can be taken against solicitors referred to the Scottish Criminal Cases Review Commission for defective representation.
Answer
Solicitors are not referred to the Scottish Criminal Cases Review Commission. Where the Commission refers a case to the High Court, and the court overturns a conviction on the grounds of defective representation, it may be possible for disciplinary proceedings to be taken against the legal representative concerned. The Law Society of Scotland and the Faculty of Advocates are responsible for investigating complaints against solicitors and advocates respectively.
The Scottish Legal Services Ombudsman (SLSO) looks into complaints about how the professional bodies handle complaints against legal practitioners. Under the terms of the Legal Profession and Legal Aid (Scotland) Act 2007, the SLSO will be replaced by the Scottish Legal Complaints Commissioner (SLCC). The SLCC will receive complaints about legal practitioners where local resolution between the practitioner and client has been attempted but has proven unsuccessful. The SLCC will investigate complaints about service while the professional bodies will continue to address concerns relating to conduct. We anticipate that the new body will become operational in late 2008.
- Asked by: Bill Kidd, MSP for Glasgow, Scottish National Party
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Date lodged: Wednesday, 30 April 2008
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Current Status:
Answered by Kenny MacAskill on 9 May 2008
To ask the Scottish Executive how many appeals against convictions have been referred to the high court in each year since 1999, broken down by grounds of appeal.
Answer
The information requested is provided in the following table.
Conviction Referrals from 1 April 1999 to 31 March 2008
| Year | Number of Referrals | Main Grounds |
| 1999-2000 | 2 | 1 x New Evidence 1 x Change in Witness Testimony |
| 2000-01 | 4 | 2 x Change in the Law 1 x New Evidence 1 x Unfair Trial |
| 2001-02 | 9 | 6 x New Evidence 1 x Defective Representation 1 x Sentencing Issue 1 x Reasonable Doubt as to Applicant''s Guilt |
| 2002-03 | 10 | 4 x New Evidence 2 x Jury Impropriety 1 x Reasonable Doubt as to Applicant''s Guilt 1 x Defective Representation 1 x Sentencing Issue 1 x Disclosure of Evidence |
| 2003-04 | 2 | 2 x New Evidence |
| 2004-05 | 6 | 5 x New Evidence 1 x Procedural Irregularity |
| 2005-06 | 3 | 1 x Misdirection by Trial Judge 1 x Change in the Law 1 x Insufficiency of Evidence |
| 2006-07 | 7 | 2 x Misdirection by Trial Judge 1 x Sentencing Issue 1 x Disclosure of Evidence 1 x Change in the Law 1 x New Evidence 1 x Abuse of Process |
| 2007-08 | 3 | 1 x Multiple Referral Grounds 1 x New Evidence 1 x Unreasonable Verdict |
| Total | =SUM(ABOVE) 46 | |
It should be noted that there may be other grounds of review. The commission''s system records only the main ground in the first instance.
