Scottish Criminal Cases Review Commission

Annual Report

2018-19

2018-19

138 New applications received32 Applications accepted for full review145 Applications concluded overall34 Cases concluded after full review

1 April 1999 to 31 March 2019

140 Cases referred to the High Court127 Cases determined by the High Court83 Convictions quashed/sentences reduced44 Appeals unsuccessful

11 Appeals abandoned

Overview

Laid before the Scottish Parliament by the Scottish Ministers SG/2019/57

Chairman’s Foreword 04

20th Anniversary 08

The Commission 14

Case Statistics 17

Referrals 27

Legal Actions 37

Accountability 42

Performance Analysis 52

Our People 61

Contents

04Chairman’s Foreword

SCCRC ANNUAL REPORT 2018–19 05

Chairman’s ReportI am delighted to present the 2018-19 Annual Report of the Scottish Criminal Cases Review Commission, setting out the work and performance of the Commission in this its 20th year.

In terms of performance, 2018-19 has been another challenging yet successful year. I am pleased to report that the Commission continues to perform well against the targets set, largely down to the hard work and dedication of its staff under the direction of the Chief Executive, Gerard Sinclair. During the year we received 138 cases for review and concluded 145, within an average review time of 6.6 months. A total of 7 cases were referred to the High Court and 6 cases were determined, 4 of which resulting in a positive outcome for the applicants involved.

From a governance perspective, we continued to receive positive assurances from both our internal and external auditors. We operated effectively within our agreed resource allocation and undertook a number of internal enhancements, in line with the business plan objectives we set ourselves for the year.

BILL MATTHEWS

CHAIRMAN’S FOREWORD 06

At the end of the year we said farewell to Francis McMenamin Q.C., whose contribution since her appointment to the Board in October 2010 has been invaluable. Her legal expertise and active participation in Board debates will be missed and we wish her well for the future. We also concluded a recruitment campaign to bring the Board back to its full complement and I’m pleased to confirm that Laura Reilly and Dr. Alex Quinn have been appointed as legal and lay Members respectively from 1 April 2019. In addition, Carol Gammie was appointed as a legal Member from 1 September 2019 and I look forward to welcoming her to the Board in the coming months.

In June 2019, just after the end of our financial year, it gave me great pleasure to host the Commission’s 20th Anniversary Event, providing us all with the opportunity to reflect on the Commission’s achievements since its inception on 1 April 1999. We were privileged to be able to bring together a distinguished group of stakeholders and past Board Members and staff in order to mark the occasion and contemplate what lies ahead for the Commission. I am grateful for the backing we received for this event and the many kind words of support that we received.

07

I was also delighted to welcome our colleagues from both the Criminal Cases Review Commission (CCRC) and the Norwegian Criminal Cases Review Commission (NCCRC) to the 20th Anniversary Event and also to our tri-partite meeting. These meetings continue to be a valuable opportunity to exchange ideas and share experiences and I am grateful for all parties continued contributions and support. During the year we also hosted colleagues from the Government of New Zealand on a fact-finding mission, and it is reassuring that we are seen as credible contributors to the creation of a very similar Commission elsewhere.

BILL MATTHEWSChairman21 June 2019

CHAIRMAN’S FOREWORD

0820th Anniversary

SCCRC ANNUAL REPORT 2018–19 09

Our 20th Anniversary – A Brief ReflectionThis year marks the 20th anniversary of the SCCRC since its creation in 1999. It was not, perhaps, the easiest of births.

The SCCRC was established on 1 April 1999 as a result of a recommendation by the Sutherland Committee which had been created in 1994 to examine criminal appeals and the system for dealing with post appeal complaints of miscarriages of justice. The establishment of this committee had come about as a result of considerable unrest with the system operating at the time under the offices of the Secretary of State for Scotland. Concerns had been expressed in the press and media for several years about the historically poor quality of investigation within this government department and the low referral rates in cases where it was considered that a miscarriage of justice may have occurred. In fact, in over 70 years prior to the creation of the Commission, only 19 cases had ever been referred back to the appeal court in Scotland, resulting in 8 convictions quashed. It was not surprising that the Sutherland Committee was critical of the method of dealing with such cases and recommended the establishment of an independent review body when it issued its report in 1996.

20TH ANNIVERSARY 10

However, the initial recommendation to establish an independent body in Scotland did not immediately find favour with the Government at the time, which initially rejected the idea, notwithstanding such a body had been set up in 1997 for the rest of the UK. However, in the days running up to the general election that year, and in order to get the Crime and Punishment (Scotland) Act 1997 onto the statute books, the Government finally acceded to continuing opposition pressure to allow an amendment to the Act which brought into creation the SCCRC.

The Body was quickly established in Glasgow under the first Chairman, Professor Sheila McLean. The original Board of part-time Members, supported by a well-qualified and committed full time staff, immediately set to work on a number of cases it had inherited from the Scottish Office. In its first referral the Commission referred the case of George Fraser (Boncza Tomaszewski (aka George Fraser) v HMA, 2000 SCCR 195), a Polish National who had been convicted in 1948 of the abuse of his niece. The Appeal Court quashed his conviction.

In the 20 years since the establishment of the Commission in 1999 the organisation has become an established part of the criminal justice system in Scotland and the number of applications has substantially increased. The SCCRC has now reviewed over 2600 applications and in that time referred 140 cases (an average of 7 cases a year) back to the appeal court for further consideration.

20TH ANNIVERSARY 11

In comparison with the figures under the previous system operated by Scottish Office this is an increased referral rate of 2500%! Of the127 cases already decided at appeal, 83 have been successful, with 44 convictions quashed and 39 sentences reduced. Perhaps our best known referral was in 2007 when the Commission referred the case of Abdebaset Ali Mohmed Al Megrahi (the man known as “the Lockerbie bomber”) to the appeal court for a further review of his conviction.

When the Commission was first established it was a key feature of its composition that the Board of Members include not only members of the legal fraternity but also lay members who could actively contribute by utilising their own appropriate knowledge and experience of the various workings of the criminal justice system. During the past 20 years the Commission has greatly benefitted from the knowledge and experience of a number of highly qualified and committed Chairmen, Board members and Chief Executives who have served the Commission, and we recognise and thank them all here for their valuable contributions over the last 20 years during their respective terms of office.

20TH ANNIVERSARY 12

Scottish Criminal Cases Review Commission — 1999-2019

Board membersProfessor Sheila McLean Lay Chairman 1999-01Sir Gerald Gordon QC Legal Member 1999-08William Taylor QC Legal Member 1999-03Alistair Bonnington Lay Member 1999-01Professor Peter Duff Lay Member 1999-07Andrew Gallen Legal Member 1999-01Rev. Graham Forbes Lay Member & Chairman 1999-08David Belfall Lay Member 2002-09Jim McKay Lay Member 2002-08Ruth Anderson QC Legal Member 2002-07Graham Bell QC Legal Member 2004-12Sandy Wylie QC Legal Member 2004-05Robert Anthony QC Legal Member 2007-08Professor Brian Caddy Lay Member 2007-15Stewart Campbell Lay Member 2007-15Gerry McClay Legal Member 2007-15Jean Couper CBE Lay Chairman 2009-16Chris Shead Legal Member 2009-10George Irving CBE Lay Member 2009-16

20TH ANNIVERSARY 13

Gerry Bann Legal Member 2009-16Frances Mc Menamin QC Legal Member 2010-19Mhairi Richards QC Legal Member 2010-11Peter Ferguson QC Legal Member 2015-presentColin Dunipace Legal Member 2015-presentProfessor Jim Fraser Lay Member 2015-presentDr Rajan Darjee Lay Member 2015-18Bill Matthews Lay Chairman 2017-presentRaymond McMenamin Legal Member 2017-presentElaine Noad Lay Member 2017-present

Chief ExecutivesRobert Eadie 1999Carol Kelly 2000-03Gerard Sinclair 2003-present

GERARD SINCLAIRChief Executive21 June 2019

The Commission

Our Purpose

14To review potential miscarriages of justice in criminal cases in Scotland and refer appropriate cases to the High Court for an appeal.

SCCRC ANNUAL REPORT 2018–19 15

The Commission The Scottish Criminal Cases Review Commission was established as an independent public body in 1999 to review alleged miscarriages of justice. The Commission was created by section 194A of the Criminal Procedure (Scotland) Act 1995 and has the power to refer cases to the High Court for determination.

Anyone convicted of a criminal offence in Scotland can apply to the Commission to have their convictions and/or sentences reviewed (but normally only after a previously unsuccessful appeal). Thereafter the Commission has a statutory obligation to provide a statement of reasons for making a referral to the High Court or for deciding not to refer a case.

As at 31 March 2019, the Commission’s staff complement was as follows: a Chief Executive, a Director of Corporate Services, a Head of Casework, 2 Senior Legal Officers, 6 Legal Officers and 3 Administration Staff.

The Commission’s Legal Officers investigate cases under the direction of the Chief Executive and Board Members. The Board is responsible for deciding whether or not cases should be referred to the High Court.

THE COMMISSION 16

The Commission operates under statutory non-disclosure provisions, whereby it is a criminal offence for any Member or staff of the Commission to disclose information obtained by the Commission in the exercise of any of its functions, except under certain statutory exemptions.

Details of the Commission’s remit, specific powers of investigation and case review procedures can be found on our website, www.sccrc.org.uk, or by request from the Commission’s office.

17Case Statistics

SCCRC ANNUAL REPORT 2018–19 18

Case StatisticsBetween 1 April 1999 and 31 March 2019, the Commission received a total of 2614 cases, completed the review of 2590 cases and referred 140 cases to the High Court for determination.

Within this section of the Annual Report some of the Commission’s key case statistics relating to both case volumes and case related performance in 2018-19 are detailed. Where appropriate, these statistics are set within the context of comparative data from previous years.

Table 1 – shows a simple comparison of case related statistics over the Commission’s last 5 reporting years, as at the end of each reporting year, including cumulative figures to 31 March 2014.

Table 2 – shows the comparison of solemn/summary and conviction/sentence-only cases received by the Commission over the past 5 reporting years.

Table 3 – provides information on the nature of offences committed by applicants. The top 14 categories of offence are detailed separately with the remainder of offences classified as “other.”

CASE STATISTICS 19

Table 4 – provides information on the main grounds of review lodged by applicants. The top 12 grounds of review are detailed separately with the remainder of grounds classified as “other.”

Table 5 – provides information on the grounds upon which the Commission has referred the 80 conviction cases to the High Court.

Table 6 – provides information on the grounds upon which the Commission has referred the 60 sentence-only cases to the High Court.

The more detailed classification in tables 5 and 6 is that used in the 2008-09 Commission research project on referrals. Within these tables all grounds of referral are identified in each case and not just the “main” ground.

CASE STATISTICS 20

TABLE 1 – Cumulative case related statistics (as at 31 March each year) Cumulative 2014-15 2015-16 2016-17 2017-18 2018-19 Cumulative to 31 March Total 2014

Cases 1844 174 148 150 160 138 2614 Received

Pre-acceptance n/a 17 10 23 15 12 n/a Cases (Stage 1)

Cases under n/a 22 19 29 19 12 n/a review (Stage 2)

Cases 1805 172 159 128 181 145 2590 Concluded

CASE STATISTICS 21

TABLE 2 – All cases received from 1 April 2014 to 31 March 2019 2014-15 2015-16 2016-17 2017-18 2018-19 % Cumulative: % % % % % 1 April 1999 to 31 March 2019

Solemn 74 68 74 68 63 77

Summary 26 32 26 32 37 23

Sentence- 16 16 9 7 10 18 only review

Review 84 84 91 93 90 82 involving conviction

CASE STATISTICS 22

TABLE 3 – Nature of principal offence committed by applicants (applications received from 1 April 1999 to 31 March 2019) Principal Offence Number of Cases % Murder 500 19.1

Sexual Offences other than Rape 398 15.2

Rape 361 13.8

Other Assault 211 8.1

Drug Related Offences 186 7.1

Aggravated Assault 150 5.7

Breach of the Peace 136 5.2

Other Statutory Offences 134 5.1

Road Traffic Offences 129 3.5

Attempted Murder 92 4.9

Other Crimes of Dishonesty 74 2.8

Theft 52 1.8

Robbery 48 2.0

Culpable Homicide 27 1.0

Other 111 4.2 *Please note that a further five applications (0.25%) have been recorded as “unknown” as no details of the

offence were included in the application.

CASE STATISTICS 23

TABLE 4 – Main ground of review lodged by applicants (applications received from 1 April 1999 to 31 March 2019) Main Ground of Review Number of Cases %

Defective Representation 506 19.51

Excessive Sentence 359 13.84

Credibility or Reliability of Evidence 325 12.53

Unfair Trial 239 9.22

New Evidence 174 6.71

Misdirection by Trial Judge 141 5.44

Credibility or Reliability of Witness 139 5.36

Human Rights Issue 88 3.39

Wrongful Conviction 58 2.24

Police Misconduct/Wrong Procedure 57 2.20

Wrong Sentence Imposed 56 2.16

Perjury 26 1.00

Other 425 16.39

CASE STATISTICS 24

TABLE 5 – Main ground of referral in conviction cases (for cases referred from 1 April 1999 to 31 March 2019) Main Ground of Referral Frequency of Ground % of Referred Cases

Error in Law: 20 25%

Insufficient Evidence 12 16%

Evidence: Wrongful Admission 3 4%

Evidence: Wrongful Exclusion 2 3%

Refusal of No Case to Answer Submission 2 3%

Miscellaneous 5 6%

Irregular Proceedings: 9 12%

Conduct of Judge 2 3%

Conduct of Jury 3 4%

Conduct of Prosecutor 1 1%

Other 3 4%

CASE STATISTICS 25

TABLE 5 – Main ground of referral in conviction cases (for cases referred from 1 April 1999 to 31 March 2019) cont. Main Ground of Referral Frequency of Ground % of Referred Cases

Misdirection: 14 17%

On Evidence: Omission, Value, Weight 9 11%

On Law: Corroboration 2 3%

On Law: Other 5 6%

Other: 37 49%

Evidence Not Heard at Original Proceedings 27 36%

Failure to Disclose 11 15%

Defective Representation 11 15%

Unreasonable Verdict 3 4%

Lurking Doubt 1 1% It should be noted that the sub totals in each of the four main categories of referral ground may not add up to the heading total as there may be some cases referred on more than one of the grounds contained in the sub categories, e.g. under misdirection a case may have been referred on evidence and on law etc. This will have the same effect on the percentage figures.

CASE STATISTICS 26

TABLE 6 – Main ground of referral in sentence-only cases (for cases referred from 1 April 1999 to 31 March 2019) Main Ground of Referral Frequency of Ground % of Referred Cases

Improper Punishment Part Calculation 24 42%

Sentence Inconsistent with Precedent 18 30%

Incompetent Sentence 10 16%

Relevant Factor Not Taken Into Account 5 9%

Sentence Calculated on Inaccurate 1 2% Factual Basis

Inappropriate Weighting of Certain Factors 4 7%

The percentage figures in table 6 do not add up to 100% as some referrals have more than one ground of referral.

27Referrals

SCCRC ANNUAL REPORT 2018–19 28

ReferralsUnder section 194B of the Criminal Procedure (Scotland) Act 1995, the Commission has the discretionary power to refer to the High Court any conviction or sentence passed on a person convicted on indictment or complaint whether or not an appeal against the conviction or sentence has been heard and determined by the High Court.

Full details of the applicable legislation and the Commission’s two tier test for making referrals (i.e. whether the Commission believes there may have been a miscarriage of justice and that it is in the interests of justice that a referral is made) are available on the website, www.sccrc.org.uk, or within the Commission’s information leaflets, available upon request.

Section 3ZB CasesThe High Court, in deciding the case of Stewart v HMA (following a Commission reference/referral), clarified the correct application of section 3ZB of the Road Traffic Act 1988 (a section concerned with causing death whilst driving uninsured or outwith the terms of a licence). In the course of that appeal, the Crown told the court that there were seven convictions which its decision in Stewart might affect.

REFERRALS 29

Thereafter the Commission asked the Crown Office to provide full details of those seven cases so that it could invite those individuals concerned to apply to the Commission for a review of their cases. Four individuals asked the Commission to review their cases. One of those four subsequently died and another abandoned his application for personal reasons. The Commission referred the remaining two applications to the High Court; each case was successful and the conviction quashed.

High Court ReferralsAs at 31 March 2019, the Commission had referred a total of 140 cases to the High Court, 128 of which have been determined. From 1 April 1999 to 31 March 2019, the overall average time from referral to judgment was 16.4 months, a reduction of 0.8 months from the same period last year. It should however be noted that the timescales from referral to determination over the past 5 years continue to be substantially shorter than the cumulative average and there is currently 1 Commission referral waiting to be determined.

Of the 128 cases decided, 85 appeals have been granted and 43 appeals have been refused. In addition, 11 appeals were abandoned by appellants following referral by the Commission.

REFERRALS 30

Referral RatesAs at 31 March 2019 the Commission’s overall rate of referral to the High Court was 5.4%, based on a total of 2590 concluded cases and 140 referrals. The overall rate of referral in relation to conviction is 4.1%, based on a total of 1937 conviction cases concluded and 80 conviction referrals.

During 2018-19, the overall rate of referral was 4.8%, based on a total of 145 cases concluded and 7 referrals. The annual rate of referral in relation to conviction is 3.2%, based on 124 conviction cases concluded and 4 conviction referrals.

Case Referral DetailsTable 7 – shows a summary of cases referred by the Commission and cases determined by the High Court in each reporting year. The last five reporting years are detailed separately. Cases are not necessarily determined by the High Court in the same year that they are referred by the Commission.

REFERRALS 31

Table 8 – provides details of all cases referred by the Commission which have been determined by the High Court during 2018-19. A full listing of all cases referred by the Commission and determined by the High Court since 1 April 1999 is available on the website, www.sccrc.org.uk. This information is broken down by conviction and sentence-only cases, and includes details of appeals which were abandoned. Where a written judgment has been issued by the High Court, the appropriate hyperlink to the Scottish Court Service is provided.

Table 9 – provides details of all cases referred by the Commission during 2018-19 which have yet to be determined by the High Court.

32

TABLE 7 – Summary of cases referred by the Commission and determined by the High Court Cumulative 2014-15 2015-16 2016-17 2017-18 2018-19 Cumulative to 31 March Total 2014 31 March 2019

Cases 122 3 2 3 3 7 140Referred

Cases 104 8 4 1 4 6 127 Determined

Cases 11 0 0 0 0 0 11Abandoned

REFERRALS

REFERRALS 33

TABLE 8 – Cases referred to the High Court and determined 2018-19

Conviction: 3 Cases Name: Sean Connelly

Date Referred to Court: 30 November 2018

Offence: Drugs Offences (Production of Cannabis contrary to S.4 (2)(A) of misuse of drugs act 1971 & being concerned in the supply of Amphetamine contrary to 4(3)(b) of the misuse of drugs act 1971) & a contravention of the Electricity Act 1989 S.31

Date of Conviction: 3 February 2017

Appeal Outcome: Successful

Date of Appeal Outcome: 22 January 2019

Judgment: No written judgment available

Name: Shahid Butt

Date Referred to Court: 27 January 2019

Offence: Contravention of S.3ZB of Road Traffic Offence Act 1988

Date of Conviction: 23 October 2010

Appeal Outcome: Successful

Date of Appeal Outcome: 19 March 2019

Judgment: No written judgment available

REFERRALS 34

TABLE 8 – Cases referred to the High Court and determined 2018-19 cont.

Conviction: 3 Cases cont. Name: Martin Kinnell

Date Referred to Court: 27 January 2019

Offence: Contravention of S.3ZB of Road Traffic Offence Act 1988

Date of Conviction: 20 August 2012

Appeal Outcome: Successful

Date of Appeal Outcome: 21 March 2019

Judgment: No written judgment available

Sentence: 3 Cases Name: John Doherty

Date Referred to Court: 25 May 2018

Offence: Civic Government Act 1982 SS52A (1) & 52 (1)(B)

Date of Conviction: 11 January 2017

Appeal Outcome: Unsuccessful

Date of Appeal Outcome: 20 November 2018

Judgment: http://www.scotcourts.gov.uk/docs/default- source/cos-general-docs/

REFERRALS 35

TABLE 8 – Cases referred to the High Court and determined 2018-19 cont.

Sentence: 3 Cases cont. Name: Moira Hunter

Date Referred to Court: 30 November 2018

Offence: Contravention of S3(1) of Dangerous Dogs Act 1991

Date of Conviction: 30 November 2017

Appeal Outcome: Unsuccessful

Date of Appeal Outcome: 02 April 2019

Judgment: http://www.scotcourts.gov.uk/docs/default-source/cos-general- docs/pdf-docs-for-opinions/2019hcjac19.pdf?sfvrsn=0

Name: Alan Baker

Date Referred to Court: 27 January 2019

Offence: (1) Assault and Attempted Robbery & (2) Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010

Date of Conviction: 07 September 2017

Appeal Outcome: Successful

Date of Appeal Outcome: 07 March 2019

Judgment: http://www.scotcourts.gov.uk/docs/default-source/cos-general- docs/pdf-docs-for-opinions/2019hcjac17.pdf?sfvrsn=0

36

TABLE 9 – Referrals to the High Court in 2018-19 to be determined

Conviction: 1 Case Name: Carol Kirk

Date Referred to Court: 10 September 2018

Offence: Assault

Date of Conviction: 11 May 2018

Appeal Outcome: To be determined

Date of Appeal Outcome: To be determined

Judgment: To be determined

Sentence-only: 0 Cases

REFERRALS

37Legal Actions

SCCRC ANNUAL REPORT 2018–19 38

Legal ActionsIn recent years, the Commission, like many public bodies, has experienced a marked rise in the sums expended on legal fees to defend legal actions. Its total expenditure on legal fees has increased considerably in the last 5 years alone, rising from £12,892 in 2014-15 to £84,396 in the most recent accounting period 1, down from a peak of £100 045 in 2016-17.

The increase in expenses may be attributed to a number of factors:

(1) An increase in the variety of legal actions. In this period, the Commission has, for the first time, found itself defending reparation actions, in both cases from party litigants. Whilst the Commission deals with most legal work in house, it instructs external solicitors to deal with this specialised work.

(2) An increase in the volume of applications for judicial review. This may relate to the introduction in 2016 of a time limit for bringing such proceedings. This appears to have focused the minds of certain legal representatives on the possibility of judicial review.

(3) Petitioners in judicial review cases taking matters to a higher level than previously. In the period 2014-2019, the Commission has dealt with two Inner House cases and one in the Supreme Court. 1 See [link to relevant page of accounts]

LEGAL ACTIONS 39

(4) Legal expenses connected with the ongoing review of the Lockerbie case.

(5) The inherent variability of such expenditure for a small public body

In spite of the fact that the Commission has not been the subject of any adverse court decision in this period, it has been unable to recover any of these expenses in relation to the cases it has successfully defended. The absence of any recovery relates to the fact that those involved in taking legal actions against the Commission have been either legally aided or party litigants without any realisable assets. This is a particularly worrying trend for a body which now has to expend almost 10% of its budget on such defended actions.

A summary of the cases that contributed to the Commission’s legal expenses in 2018-19 follows.

M v SCCRCM lodged a petition for judicial review, arguing that the Commission had erred in relation to a number of points of law in reaching its decision not to refer his case to the High Court. The Commission lodged answers to the petition. The court refused permission to proceed.

LEGAL ACTIONS 40

Paterson v SCCRCP lodged a petition for judicial review in April 2017, arguing that a decision of the Commission dated February 2017 was procedurally unfair. The Commission lodged answers, arguing that it had made the decision that gave rise to the grounds of complaint in May 2016. The judicial review application was thus plainly time barred. In any event, the decision was not procedurally unfair. The Commission objected to the grant of Legal Aid on similar grounds. The court granted permission to proceed and the Scottish Legal Aid Board granted Legal Aid, having initially refused to do so. After a good deal of further procedure, the court held in November 2018 that the matter was time barred, and dismissed the petition. M lodged a reclaiming motion in December 2018. The matter is presently paused awaiting the outcome of a further application for Legal Aid, which the Commission has again opposed.

Sheridan v SCCRCS, who had instructed solicitors privately, lodged a petition for judicial review in 2016, arguing that the Commission had made various errors and had failed duly to investigate certain matters. The case came before the Outer House in December 2017. The Outer House subsequently dismissed the action. S appealed the decision. The Inner House heard the appeal in February 2019. The Inner House refused the appeal. S has applied to the court for leave to appeal the matter to the UK Supreme Court. The Commission has sought an order for the expenses of the action.

LEGAL ACTIONS 41

Robertson v SCCRCR, who was unrepresented, brought an action against the Commission for reparation in 2016, alleging, among other things, that the Commission had breached its obligations under the Equality Act 2010 and the Human Rights Act 1998. The action was dismissed in January 2018. Expenditure over the past year relates to recovery proceedings.

LockerbieThe Commission instructed senior counsel in respect of proceedings relating to the recovery of information pertinent to the case.

42Accountability

SCCRC ANNUAL REPORT 2018–19 43

AccountabilityThe Commission strives to maintain the highest levels of accountability with regard to how it undertakes its core function and delivery of its service to all stakeholders. The Commission has in place a number of governance related structures and processes which are outlined below.

Whistleblowing“Whistleblowing” is the term used when a worker passes on information concerning wrongdoing. The wrongdoing will typically (although not necessarily) be something they have witnessed at work.

To be covered by whistleblowing law, the disclosure must be a ‘qualifying disclosure’. This is any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show that one or more of the following has occurred, is occurring or is likely to occur:

• A criminal offence (this may include, for example, types of financial impropriety such as fraud); • a breach of a legal obligation; • a miscarriage of justice;

ACCOUNTABILITY 44

• danger to the health or safety of any individual; • damage to the environment; or • the deliberate covering up of wrongdoing in the above categories.

Anyone who makes a “qualifying disclosure” is entitled under the Employment Rights Act 1996 and the Public Interest Disclosure Act 1998 not to suffer any detriment as a result of making the disclosure.

Under the Public Interest (Disclosure) Order 2014 the Chief Executive of the SCCRC is listed as a “prescribed person” to whom potential “whistleblowers” may report to if they feel either that it would be inappropriate to make the disclosure to their employers, or they have made such a disclosure but they feel that their employers are not addressing the matter. Any such disclosure to the SCCRC should relate to the “description of matters” applying to the SCCRC – i.e., “actual or potential miscarriages of justice”. In such circumstances the Commission can choose to use its own statutory powers to investigate and review the allegation that a miscarriage of justice may have occurred.

During the current financial year the Commission was contacted separately by two external “whistleblowers” (both police officers) who wished to discuss their entitlement to make a “protected disclosure” in terms of the Public Interest Disclosure Act 1998. In both cases the Chief Executive of the SCCRC discussed the concerns directly with the potential whistleblower.

ACCOUNTABILITY 45

Only one of the cases where information was disclosed was classed as a qualifying disclosure. In the other case it was agreed that no action would be taken.

In relation to the case classed as a qualifying disclosure the Chief Executive wrote to Police Scotland identifying the nature of the matter disclosed and requesting further information. The matter is currently an ongoing investigation.

As this is the first year that the Commission has received disclosures under the Public Interest (Disclosure) Order 2014 it is reporting these matters in its annual report. Reports in future years will be recorded separately on our website.

Stakeholders EngagementThe Commission continues to focus on stakeholder engagement as a key priority within its 2018-19 Business Plan and has undertaken further work during the year to strengthen existing arrangements.

During 2018-19 the Commission continued to work closely with representatives at the CCRC and NCCRC, and in particular hosted a visit from the CCRC Management Team to discuss and compare working practices and procedures. Further talks were also held with representatives from the Ministry of Justice in New Zealand and the Canadian Government Department responsible for reviewing alleged miscarriages of justice.

ACCOUNTABILITY 46

During 2018-19 the Commission developed a new Communications Strategy to help inform how we engage with stakeholders in the future. These stakeholders specifically include: applicants and potential applicants; applicant’s representatives; the High Court; the Scottish criminal justice system and agencies within it; Scottish Ministers and the Scottish Government; the Scottish Parliament; key advocacy groups (MOJO, Rape Crisis, Human Rights Groups etc); community planning partnerships; law schools; educational institutes; the media; and members of the public.

Complaints ProcedureThe Commission has in place a formal complaints procedure which is available on the website and upon request from the Commission. The complaints procedure is limited to administrative matters and does not cover complaints about decisions issued by the Commission in respect of cases.

The number of formal complaints continued to be low with none being received in 2018-19. A letter of complaint was received during this period, however, upon review it was noted that this complaint did not fall within the remit of the Commission’s Complaints Procedure, as it specifically related to a case decision arrived at by the Board, and was therefore not registered.

ACCOUNTABILITY 47

Code of ConductThe Commission has in place a documented Code of Conduct for both Board Members and staff. As part of the Code of Conduct all Members and staff must declare any known conflicts of interest, e.g. where they have had previous involvement with an applicant or witness in a case. Conflicts of interest are recorded and the person involved is precluded from any involvement in the respective case. The Code of Conduct for both Board Members and staff was updated and reissued during 2018-19.

A Declarations of Interest Register is maintained and is available on the website or for inspection at the office.

ACCOUNTABILITY 48

Promoting Public Understanding of the Commission’s RoleIn accordance with its broad aims, the Commission continues to promote public understanding of its role. This work takes the form of targeting various interest groups as well as more general information events and talks. The programme for 2018-19 was extensive and included:

• Scottish Prisons Talks – delivered to HMP Dumfries, HMP Glenochil, HMP Low Moss, HMP Kilmarnock, HMP Inverness, HMP Perth, HMP Addiewell and HM YOI Polmont. • Scottish Prison Information – updated SCCRC Information Folders were distributed to all prisons during the year in order to make available to prisoners information currently on the SCCRC website.• Taiwanese Judges Visit – SCCRC hosted a delegation of Taiwanese Judges in September 2018 and provided information on the role of the Commission and how it operates.• Talk to Glasgow Caledonian University Law Students.• A visit from the new CCRC Chairman, Helen Pitcher OBE, to discuss areas of mutual interest.

In addition, a number of talks were given to staff and Members at the Commission including a talk from the Parole Board and from Professor Brandon Garrett from Duke University School of Law.

ACCOUNTABILITY 49

Freedom of InformationThe Commission has in place a publication scheme in accordance with the Freedom of Information (Scotland) Act 2002 (FOISA). It can be found at http://www.sccrc.org.uk/publication-scheme.

In the year 2018/19 the Commission received 29 requests under FOISA and responses were issued in respect of all 29 requests.

The responses issued were dealt with as follows:

• full disclosure of information – 12 cases;• partial disclosure of information – 8 cases;• non-disclosure of any of the information requested – 9 cases;

In the 17 applications in which information was partially disclosed, or not disclosed at all, the Commission did not disclose the information, or some of the information, for one of the following reasons:

• disclosure of the information requested was exempt from publication – 9 cases;• the information requested was not held by the Commission – 8 cases.

ACCOUNTABILITY 50

Data ProtectionThe Commission received 2 subject access requests under the Data Protection Act 1998. In each request the Commission disclosed or considered that it had already disclosed the data requested.

On 25 May 2018 the General Data Protection Regulations and the Data Protection Act 2018 came into force. The Commission must apply these in dealing with subject access requests. In the period 25 May 2018-31 March 2019 the Commission received 7 requests under the new provisions and responses were issued in respect of each of those requests.

In 4 requests, the Commission disclosed, or was of the view that it had already disclosed, the data.

Persistent & Repeated Applications PolicyThe Commission has in place a Persistent & Repeated Applications Policy, which was approved in April 2013 and subsequently reviewed and updated in October 2018. The policy was developed in response to the increasing number of repeat applications being received from a small number of applicants where there continued to be no new grounds of review or any significantly different matters being raised.

ACCOUNTABILITY 51

The policy includes an appeals process and all registrations on the Persistent & Repeated Applications Register are reviewed on an annual basis.

Five applicants were placed on the Persistent & Repeated Applications Register during 2018-19. The total number of registrations increased from 9 to 14.

Enhance Public ConfidenceThe Commission believes that achieving its objectives and targets and ensuring that all cases are reviewed thoroughly, without undue delay and to a consistently high standard will enhance public confidence in the ability of the Scottish criminal justice system to rectify miscarriages of justice. The Commission is firmly of the view that its independence from Scottish Government and the prosecution service is of paramount importance in enhancing such public confidence. The Commission will continue to maintain total independence in its investigation and review of cases.

52Performance Analysis

SCCRC ANNUAL REPORT 2018–19 53

Corporate PlanningThe Commission has in place a Corporate Plan covering the period 1 April 2016 to 31 March 2019. The Corporate Plan sets out the Commission’s strategic aims and priorities for the 3-year period and how it intends to deliver these. It also identifies how the Commission will align itself to the Scottish Government’s National Performance Framework and contains a 3-year financial forecast.

In support of the Corporate Plan the Commission produces an annual Business Plan. The Business Plan details the operational objectives for the year ahead as well as providing a full performance assessment for the preceding year. The Business Plan also sets out the Commission’s agreed budgetary provision for the year ahead.

Both the Corporate Plan and Business Plan are available on the Commission’s website, www.sccrc.org.uk or from the Commission.

PERFORMANCE ANALYSIS 54

Performance Against Key TargetsTo 31 March 2019, the Commission’s strategic aims, as set by the Scottish Ministers, were:

• to investigate all cases efficiently, without undue delay and to a consistently high standard;• to work with others to deliver a quality service;• to promote public understanding of the Commission’s role; and• to strengthen public confidence in the ability of the Scottish criminal justice system to address miscarriages of justice

The Commission sets specific objectives and targets to meet its broad aims as well as demonstrating its commitment to the National Performance Framework. The Corporate Plan and corresponding Business Plan identify these objectives and targets for 2018-19.

Performance against the Commission’s key targets for 2018-19 is set out below:

PERFORMANCE ANALYSIS 55

Target Outcome Performance

(i) to allocate cases received within an Achieved 1 day average average of 1 week from the date of receipt.

(ii) to complete the stage 1 pre-acceptance Achieved 1.7 month average procedure within an average of 2 months from the date of stage 1 allocation.

(iii) to conclude sentence-only reviews Not Achieved 4.5 month average within an average of 4 months of the date of stage 2 allocation.

(iv) to conclude cases involving a review of Achieved 7.4 month average conviction within an average of 8 months of the date of stage 2 allocation.

(v) to complete the review of 98% of the Achieved 1 case over 12 cases received before 31 March 2018, months old so that by the beginning of the 2019-20 reporting year no more than 3 of the Commission’s cases are more than 12 months old.

PERFORMANCE ANALYSIS 56

Full details of performance against these targets and objectives are available on the Commission’s website, www.sccrc.org.uk.

The Commission achieved 4 of our 5 key targets for the year, as set out on page 3, going over target on sentence-only reviews by an overage of 0.5 months. This had a knock on effect on overall review times which increased from an average of 6.2 months in 2017-18 to 6.6 months in 2018-19. This still represents an excellent level of case related performance, particularly given the pressures on legal officer resources during the year, with two legal officers retiring and another legal officer on secondment. The Board also operated with one fewer Member for the year.

Performance IndicatorsThe Commission has set itself a number of key performance indicators, as identified within the 2016-19 Corporate Plan, and reports on these within each Annual Report. The table below sets out performance against these indicators over the past 5 reporting years:

PERFORMANCE ANALYSIS 57

Performance Indicator 2014-15 2015-16 2016-17 2017-18 2018-19

Number of 174 148 150 160 138 cases received

Number of 172 159 128 181 145 concluded cases

Average time 7.5 mths 6.3 mths 6.6 mths 6.2 mths 6.6 mths taken from date of acceptance to date of conclusion

Number of cases 0 0 0 0 1 where initial decision not to refer is changed to a decision to refer following submission of further representations

Referrals per year 3 2 3 3 7

Outcome of 3 granted 3 granted 1 granted 2 granted 4 granted referrals decided 3 refused 1 refused 0 refused 2 refused 2 refused in year

Cases abandoned 0 0 0 0 0 following referral

*Cumulative % 65% referral success rate

**Number of formal 4 2 0 1 0 complaints received

Number of 0 1 1 3 1 cases subject to judicial review

PERFORMANCE ANALYSIS 58

*Cumulative success rate based on total number of decided referrals. Does not take into account cases which have been referred and subsequently abandoned.**One formal complaint was received in 2018-19. However, upon review it was identified that the complaint did not fall within the remit of the Complaints Procedure and was not therefore registered.

Financial ResultsIn accordance with paragraph 9(1)(b) of Schedule 9A to the Act, the Commission’s statement of accounts covers the period 1 April 2018 to 31 March 2019. The Commission’s statement of accounts is prepared in accordance with the Accounts Direction issued to the Commission by the Scottish Ministers and is available separately on the Commission’s website, www.sccrc.org.uk

The Commission’s budget for 2018-19 was set at £1,038,995, an increase of £20,000 on 2017-18. During the course of the year the Commission continued to experience a high level of legal costs as a result of a number of ongoing court actions. This resulted in total expenditure of £82,632 compared to a budget of £10,000. Scottish Government agreed to provide additional funding totalling £100,000 in order to assist in meeting these additional legal costs, increased investigations costs and the costs associated with the ongoing review of the Lockerbie bomber’s case. Not all of the costs associated to this additional funding had been incurred at year-end and will therefore be carried forward into 2019-20. Comprehensive net expenditure for the year was £1,111,000 including depreciation and notional costs.

59

2018-19 Budget £1,038,995Additional Funding £100,000

Quarter 1 Quarter 2 Quarter 3 Quarter 4 January 2019 February 2019 March 2019

2018-19 Draw Downs £272,000 £252,000 £302,500 £96,500 £125,135 £90,860

Total Funding

Draw Down £1,138,995

The capital budget for the year was initially set at £4,000, although this was increased to £11,000 during the year to reflect necessary IT asset replacement.

PERFORMANCE ANALYSIS

PERFORMANCE ANALYSIS 60

Payment PerformanceIn line with Scottish Government directions, the Commission’s policy for the payment of invoices, not in dispute, is within 10 days of receipt (or the agreed contractual terms if otherwise specified). The Commission aims to pay 100% of invoices, including disputed invoices once the dispute has been settled, within these terms.

The Commission’s average time taken to pay invoices during 2018-19 was 6 days from the date of receipt. A total of 93.6% of invoices received were paid within the terms of the payment policy, compared with 95.7% in the previous year. A total of 5% of invoices (18 invoices in total) not paid within the 10 day target were either as a result of SEAS system issues or delays in receiving updated supplier account details which were outside the Commission’s control. The remaining 1.4% of invoices (4 invoices in total) not paid within the 10 day target were a result of internal delays.

As at 31 March 2019 the value of supplier payments outstanding at year end was nil.

The Commission applies the principles of the Better Payment Procedure Code.

61Our People

SCCRC ANNUAL REPORT 2018–19 62

The BoardThe Board has corporate responsibility for ensuring that the Commission fulfils the aims and objectives set by Scottish Ministers and for promoting the efficient and effective use of staff and other resources in accordance with the principles of Best Value. The Board also has a specific executive responsibility with regard to discharging its statutory role in making decisions in respect of all cases received by the Commission. The Board is supported by 2 Case Committees, the Audit Committee and the Remuneration Committee. In addition, the full Board sits twice a year as the Policy Group.

Chairman: Mr Bill MatthewsBoard Members: Professor Jim Fraser * Miss Frances McMenamin Q.C. Mr Peter Ferguson Q.C. Mrs Elaine Noad * Mr Raymond McMenamin Mr Colin Dunipace *

*Audit Committee Members

OUR PEOPLE 63

Male Female

Chairman 1 -

Board Members 4 2

The Register of Interests for Commission Members can be found on the Commission’s website www.sccrc.org.uk and is also available from the Commission. All Members are required to review and update their registration on at least an annual basis.

The Register of Interests for Commission Members can be found on the Commission’s website www.sccrc.org.uk and is also available from the Commission. All Members are required to review and update their registration on at least an annual basis.

OUR PEOPLE 64

StaffingThe Commission’s Chief Executive, Mr Gerard Sinclair, is also the Accountable Officer and was supported by the following staff complement as at 31 March 2019:

Job Title: Male Female

Director of Corporate Services 1 -

Head of Casework & Information Governance 1 -

Senior Legal Officer 1 1

Legal Officer 3 2

Senior Administration Officer - 1

Administration Officer 1 1

All staff are based at the Commission’s office in Glasgow.

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Staffing matters are detailed within the full 2018-19 Annual Report which is published separately. However, the Commission has monitoring arrangements to review staffing performance issues such as rates of absence. The average number of sick days per employee in post decreased from 2.9 days in 2017-18 to 2.6 days in 2018-19.

The Commission is committed to ensuring that staff are adequately trained and staff are encouraged to identify and attend suitable training seminars and courses. All Commission staff have direct access to the Chief Executive and to the Members of the Board of the Commission and are encouraged to express their views on, and to make suggestions to enhance, the efficiency and the effectiveness of the Commission.

The Commission’s equal opportunities policy aims to ensure that there is no employment discrimination on the grounds of disability and that access to employment and career development within the Commission is based solely on ability, qualifications and suitability for the work.

Scottish Criminal Cases Review Commission

Annual Report

2018-19