The Scottish Law Commission has today published its Report on Crown Appeals (Scot Law Com no 212), including an eight section draft bill, the Criminal Appeals etc. (Scotland) Bill. The report follows the reference from Scottish ministers (no 703) following the acquittal in the World's End murder trial (nos 679, 681, 684, and 685).
The project involved consideration of the upholding of a submission of “no case to answer” in a case involving a jury (Criminal Procedure (Scotland) Act 1995 s 97); the common law submission that a jury should not convict; and rulings on the admissibility of prosecution evidence that so weakens the prosecution case that the case is abandoned.
The Commission has (by a majority, with the chairman and Professor Gretton in the minority – see para 2.25 n 58) recommended an extension to the current right of the accused to make a no case to answer submission at the end of the Crown case. Currently the provision as interpreted only allows a successful submission where there is no corroboration on at least one of the essential elements of the offence. The majority recommendation will allow the accused to submit at the end of the Crown case that "on the evidence led by the Crown, no reasonable jury, properly directed, could convict of the offence charged." (Para 2.25, recommendation 1) The majority (this time with Professors Thomson and Maher in the minority – para 2.25, n 59) rejected a proposal to allow the charge to be amended at the end of the Crown case. Given the restricted remit of the reference to the Commission the recommendation is limited to solemn cases, although the Commission notes (para 2.25, n 60) that the recommendation could be extended to summary prosecutions.
The Commission has also recommended that on conclusion of hearing the whole evidence in the case a submission can be made by the defence dealing with any of the following:
"(i) an insufficiency of evidence to support a charge;
(ii) an insufficiency of evidence to support the charge libelled, together with a contention that an alternative charge should be substituted;
(iii) in matters where corroboration is not required,89 a lack of evidence to support part of a charge;
(iv) a contention that, on the evidence led, no reasonable jury properly directed could convict of the charge libelled." (Para 2.42, recommendation 2 (a))
and that the Crown will have a right of reply in relation to any such submission.
On the matter which prompted the reference, whether the Crown should have a right of appeal against a judicial ruling to acquit without the consideration of the jury, the Commission recommends that there should be a general right of appeal in at least some of the cases (para 3.11, recommendation 3) if the judge's ruling was wrong in law (para 3.14, recommendation 4). The Crown right of appeal would be available following a successful no case to answer submission (para 3.27, recommendation 7) provided the appeal is lodged within seven days of leave to appeal being given (para 3.28, recommendation 8); and would also be available against decision resulting from the new statutory right of challenge that could be made at the close of the whole of the evidence in the case (para 3.38, recommendation 9). Any application for leave to appeal in such a case would have to be made "forthwith" (paras 3.39 – 3.41, recommendation 10) and the appeal would have to be lodged within 7 days of the grant of leave to appeal (para 3.41, recommendation 11). The Commission also consider that the Crown should have a right of appeal against evidential rulings made during a trial (para 3.52, recommendation 12).
Given that an appeal would typically be some time after the original decision appealed against the result of a successful Crown appeal would at best for the Crown be a re-trial (para 3.20, recommendation 5) – although it is recommended that the Appeal Court should only permit the Crown to bring a new prosecution where it is not "contrary to the interests of justice" (para 4.9, recommendation 14). With the support of consultees no examples are given of when a new prosecution would be "contrary to the interests of justice" (para 4.7). While a retrial will be the typical result the Commission note that expedited appeals may be possible in some cases allowing the trial to continue (para 3.20, recommendation 6) but it is stressed by the Commission that "such expedited appeals would not be the norm." (para 3.19)
Further recommendations on the rules relating to leave to appeal are made in Part 4, as well as a recommendation that a judge be permitted to order reporting restrictions where the Crown is given leave to appeal – to reduce the risk that prejudicial publicity may render a re-trial impractical (para 4.38, recommendation 22).
On the publication of the report Lord Drummond Young, the chairman of the Commission, said,
"The trial judge rightly has the power to bring the prosecution to an end where the Crown does not present sufficient evidence against the accused; but, at present, the trial judge's decision cannot be reviewed. In rare cases, this may result in a well-founded prosecution being wrongly dismissed and the accused person not being properly held to account. We recommend, therefore, that the Crown should be able, with leave of the trial judge, to challenge a number of judicial rulings, including a ruling that there is no case to answer."
The report is a substantial well-argued and well-researched document, particularly given the time pressures faced by the Commission. These time pressures are acknowledged by the Commission at para 1.2 – where it is noted that the consultation period on the discussion paper was a compressed six weeks – and at para 1.15 (where concerns we had expressed here on Scots Law News (subsequently published in more detail at (2008) 12 Edinburgh Law Review 293 are addressed)). The Commission writes in relation to this project
"We have already referred to the restricted timescale that has been available for the preparation of this Report. This has attracted comment in certain academic circles. We would emphasise that this has been a narrowly focussed project, concerned with certain very specific issues of criminal procedure. We are satisfied that in the time available it has been possible to carry out all the research that is necessary; indeed, we do not think that any other research would be useful. In this connection, although we have made reference to comparative material, we have not used this to suggest procedures that Scots law might adopt; it is rather designed to set Scottish procedure in context. As we point out above, Scottish criminal procedure has its own history and its own distinctive forms. These are largely grounded on the requirement of corroboration, a requirement which is unique to Scotland in jurisdictions where criminal cases are decided by the verdict of a jury alone. In other jurisdictions it is quite possible that comparative material will be of much greater importance; this applies in particular to England and Wales and the various systems whose law is based on English law. For this reason we do not think that it is appropriate to draw comparisons with the timescale adopted by other law reform bodies in undertaking similar projects. Likewise, it is not appropriate to make comparisons between this project and other projects that we have carried out; this project is unusual in its tightly focussed nature. Consequently the timescale that we have been able to meet in this project should not be regarded as a precedent for other projects."
The Commission now turns its attention under the World's End reference to double jeopardy, with a report due in 2009.