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frank

Aberdeen man to sue SCCRC and Scot Government over MOJ

https://www.pressandjournal.co.uk...ment-over-miscarriage-of-justice/

Convicted Aberdeen rapist to sue Scottish Government over “miscarriage of justice”




A former golf professional who has spent the last 12 years trying to overturn his rape conviction is to sue the Scottish Government for nearly £700,000.

Graham Gordon was jailed for five years after being convicted of raping a woman he met in an Aberdeen nightclub.

Prosecutors claimed he attacked the woman after taking her back to his home in the city’s Bridge of Don area.

But former Bon Accord Golf Club champion Gordon has always maintained his innocence and has made a string of attempts to clear his name.

Although the Scottish Criminal Cases Review Commission (SCCRC) has admitted there “may” have been a miscarriage of justice, it has refused to reopen the case or refer it back to the Court of Appeal.

The commission ruled it did not feel the move was in the interests of justice, given the amount of time that had passed.

Now Gordon is launching legal action against both the SCCRC and Holyrood ministers alleging “gross negligence” in the way his appeal has been handled.

He is seeking £695,000 for breach of duty and malpractice in public office relating to the 2007 decision.

Gordon was jailed for five years at the High Court in Stonehaven in 2002, and served three years and four months of his sentence.

He has been relying on handouts from his family to support his constant legal battles.

He will also be appealing to the UK Supreme Court – the country’s highest court – and has contacted Prime Minister David Cameron.

The 55-year-old alleges that a “conspiracy” has taken place.

He said: “If you asked someone on the street if they think a possible miscarriage of justice case should be heard in front of an appeals court they would say that of course it should.

“It’s common sense that if there is any possibility that justice hasn’t been served you look at it again.

“I have spent thousands in legal fees and clearing my name has basically become my full-time job.

“I’ve been studying the law for so long now I’ve learned some expertise in it.

“Basically, I want it to be shown that nobody is above the law, even the Scottish Government, and that my case needs to be heard with all the correct evidence in place.”

Gordon added that his life had been left “stained” since leaving jail with the stigma of being a convicted rapist.

He has since moved from his Bridge of Don home to Westhill.

He added: “Luckily, my friends and family have supported me through this.

“I will never stop fighting this until my name has been cleared.”

A Scottish Government spokeswoman said: “These are ongoing legal proceedings and, as such, it would be inappropriate to comment further.”

A spokesman for the SCCRC declined to comment.
Big Wullie

Frank.

My understanding of the history of this case is this:

After referring his case back to the appeal court the appeal court rejected the appeal.

Mr Gordon then lodged a Cadder ground with SCCRC who rejected it the second time round as not being in the interests of justice.

Please correct me if I am wrong, but I was not aware it was rejected on the need for finality and certainty.

My understanding of the Judicial review that was then lodged and rejected was it was rejected because he had not complained about the conduct of the police in the way they had obtained the statement and that he admitted making it of his own free will.

Lastly the court said he had relied upon the statement for his own defence therefore he could not succeed with a Cadder argument.

I feel this is the tests the courts will now apply when Cadder grounds are submitted to curb and cap them because there was so many.

I am aware though that the SCCRC have since referred other cases on Cadder grounds but these too have been rejected.

It appears to me for this reason there is a lack of consistency within SCCRC.
frank

Thanks for that Wullie,

The SCCRC have referred a case because they feel someone may have suffered a miscarriage of justice. The appeal court have rejected it.

The applicant has made a second application to SCCRC which he is entitled to do but this time they say its not in the interests of justice to refer.

Surely if they have previously concluded he may have suffered a MOJ then it will always be in the interest of justice.


I've read some cadder judgements and the majority of them make no mention of any of the defendants protesting at being questioned without legal representation. Statements given by defendants are always relied on by the Crown as well. One judgement even states that if there was no interview there is no evidence.


I don't have all the info on this lawsuit but I'm betting there will be more to come.

Good on Mr Gordon for challenging these idiots anyway. About time somebody stood up against the SCCRC. Judicial Reviews don't work as who will ever get an impartial hearing against the SCCRC. No chance in Scotland.

Perhaps this will also wake the Scottish Parliament up on the dubious SCCRC which has never been scrutinised since its inception aprox 16 yrs ago.


Frank
Big Wullie

Quote:
The applicant has made a second application to SCCRC which he is entitled to do but this time they say its not in the interests of justice to refer.


They did not reject Campbell & Steele the second time.

Campbell and Steele were a success the second time round.

Quote:
One judgement even states that if there was no interview there is no evidence.


Like I said about the Commission there is also a lack of consistency within the appeal courts.

What one judge allows another might reject and we know this when we read the following article on Anderson appeals:


Sins Of Omission By Robin Johnston Of SCCRC  



Quote:
Surely if they have previously concluded he may have suffered a MOJ then it will always be in the interest of justice.


One would think this would be the ordinary man in the streets view.

I do not see how they can change their views or beliefs and can only agree with this statement.

I am sure the majority of the public will be confused by this test which is not quite clear in legislation or definition.
Big Wullie

I have read the appeal for judicial review again and while I accept they mention the need for finality and certainty para (32) in their decision I find the following to be their main reason for using the need for finality and certainty.

Quote:
[42] As to the petitioner's challenge to the supplementary statement of reasons, I am unable to see merit in any of the points he sought to raise. It seems to me that the reasoning in paragraph 10 of that document cannot be faulted. It succinctly draws together the main strands of the respondents' thinking in what, to my mind, is a convincing assessment of where the interests of justice lie. Thus, the respondents reiterate that the fact that the petitioner has never disputed the truth of what he told the police and the fact that he relied on the interview to present his defence of consent are considerations pointing strongly against it now being in the interests of justice to refer the case on the Cadder point. In my opinion, that was a view which it was entirely open to the respondents to come to. But I would myself go further and say that it was, in the circumstances of the case, clearly the correct conclusion for them to reach.


If you do not dispute the truth of the statement or that it was made by you in circumstances of unfairness and relied upon by your defence then how can it now be said to be unfair ?

This I am afraid will now be the test for Cadder appeals.

I accept in some cases without the statements there is no other corroborating factors and in these circumstances the case should collapse.

When Cadder was successful it capped the Cadder grounds on cases that had already been decided, which prompted me to say at the time this was why Luke Mitchells appeal was rushed through before Cadder.

I am afraid you really are up against it.

This is not to say I think you got a fair hearing at SCCRC under the circumstances you claim that someone working for Crown Office had been working on your case while Crown Office was opposed to any appeal.
frank

Wullie,

Being questioned without legal representation is a breach of your human rights. If someone doesn't protest at the time is irrelevant in my eyes.

How many people did not protest at slopping out but received thousands in compensation after the test case. A breach is a breach. Because prisoners didn't complain at the time was not a barrier for succesful compensation claims.

The SCCRC are wrong on this.

I get the impression you believe I'm Mr Gordon as you intimate I'm up against it.

I'm not up against it as I am not pursuing a cadder ground in my third submission with the SCCRC which they have been investigating for a year and a half.

I only know that the scottish justice system and SCCRC have been covering up Cadder grounds due to Finality and Certainty.


How can there be F&C in a case where someone is wrongfully convicted of a serious sex offence when reading this recent judgement from the Court of Session. It is arguably equal to a life sentence.

https://www.scotcourts.gov.uk/sea...5d8a6-8980-69d2-b500-ff0000d74aa7
Big Wullie

Frank

I really did not assume you were Graham Gordon so forgive me if that was they way it seems in my posts.

I am not in any way saying the SCCRC are correct either.

I think if the lord Advocate is saying there is no time limit on justice it applies to both parties and not just one sided.

For this reason I do not agree with the courts use of Finality & Certainty.

What I am saying is Cadder arguments were capped at source.

While the UKSC were in agreement it breached your right, they were not prepared to backdate this.

This is where cases like Graham Gordon's become problematic.

Having said that we all know some judges would allow it and others reject it.

If as the Lord Advocate is claiming there is no time limit on Justice, then this must apply equally across the board.
Big Wullie

Quote:
I get the impression you believe I'm Mr Gordon as you intimate I'm up against it.


Quote:
I'm not up against it as I am not pursuing a cadder ground in my third submission with the SCCRC which they have been investigating for a year and a half.


So what is your submissions then ?
frank

Don't feel it would be right to divulge my submission to SCCRC as this could easily compromise my application.


Apologies, as I got the impression you thought I was Mr Gordon.



Frank
Big Wullie

There is not that many people make three submissions to SCCRC Frank.
Big Wullie

Any update on the case against the SCCRC Frank ?
frank

Hi Wullie

I haven't heard of any progress or seen anything in the media.

Noticed on the High Court Rolls that there was a hearing couple of weeks ago involving Mr Gordon and SCCRC. On the bench was Lord Bracadale, Lord Malcolm and Lady Dorrian.

Your guess is as good as mines Wullie as to what the hearing was about. If it had anything to do with SCCRC independence then I doubt we will ever get to see a judgement.


Frank






Frank
Big Wullie

If the judgement in Ruddy is anything to go by then the Government have failed to provide an independent and impartial hearing as Identified in Ruddy para 50:

Quote:
[50] In our view, it is important to  note what the ECtHR said respecting the burden of proof moving to the state, where matters lie wholly or largely within the exclusive knowledge of the state. We consider that it is a coherent and logical extension of that approach to the burden of proof that, where an issue arises as to a prima facie want of structural independence in the hierarchical structure under which any investigation bore to be carried out, the state should similarly be required to demonstrate the presence of the requisite structural independence.


Ruddy:

https://www.scotcourts.gov.uk/opinions/2013CSIH73.html

If police investigating police is not independent then neither is Lawyers Investigating Lawyers or Judges Investigating Judges etc etc
frank

https://www.scotcourts.gov.uk/sea...ddfa6-8980-69d2-b500-ff0000d74aa7

This is a recent Nobile Officium judgement I was referring to previously. Amongst other things, it refers to SCCRC permitting Crown employees to work on SCCRC cases. The Petition was judged to be incompetent.

I suppose this arguably contradicts the following then:

http://www.sccrc.org.uk/aboutthecommission.aspx

Quote:
Our review of cases is completely independent of Parliament, the Scottish Government, the Crown, the Justiciary and the Defence.  All cases accepted by us are subjected to a robust and thoroughly impartial review before a decision on whether or not to refer to the High Court is taken
SCCRC MOJ SELL BY DATE

INTERESTING ONE

Interestingly in these type of cases - no illegal detention & questioning = no corroboration = no charge = no trial = no conviction = no registration requirements

What appears to be missed and solicitors are ignoring is that under section 194 of the CPSA'95 (and amendments) a person could be referred if they "MAY" have suffered a MOJ by the SCCRC and it is in the 'interests of justice' to refer the case back to the HCOJ on appeal, with the need for 'certainty' and 'finality'.

In the rest of the UK when a person "MAY" have suffered a MOJ it is a MANDATORY referral as per a point of law, whereas in Scotland the test is applied more narrowly, even although the SCCRC say they apply a wider test.

This poses the question, how can "MAY" be applied in a 'CERTAIN' OR 'FINAL' application? As a measurable "MAY" (POSSIBILITY OR PROBABILITY) will always fall short of being 'CERTAIN' OR 'FINAL', and the two legislative strands drafted by the SNP Scottish Government are ILLEGAL as they are in CONFLICT (X and Y v The Netherlands)

Why are defence lawyers not addressing this 'conflict in the law?' do we need a lawyer to protect us from our lawyer?
SCCRC MOJ SELL BY DATE

LATEST IN CASE

An Options Hearing was heard on Friday and two days of legal arguments are due to be heard at Glasgow Sheriff Court on Monday - Tuesday, 26-27 October 2015. If you can manage get yourself along to Glasgow Sheriff Court for the fireworks!!!!!
frank

SCCRC MOJ SELL BY DATE

Any more news on this case??

I noticed there was a hearing on 10 September at Glasgow Sheriff Court

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Sincere thanks to all those who have supported Shirley and challenged miscarriages of justice on this forum.