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28 October 2015

Alison McInnes, MSP
Broomiesburn Road
Ellon, Aberdeenshire
AB41 9RD

Dear Mrs. McInnes,

Operation of the SCCRC and associated concerns

Thanks for your valued assistance thus far, and I would be most grateful if you could write to the Cabinet Secretary for Justice in relation to the following concerns that are of ‘significant public importance’ in the ability of the justice system to properly consider miscarriage of justice applications.

Please note from downloaded SCCRC board minutes of meeting in my possession that as part of lengthy custom and practice, the SCCRC rejected a number of ‘insufficiency of evidence’ applications at stage one ‘committee level’ consisting of two individuals – Mr. Sinclair, CEO (or his deputy) and one other.

Further concern was raised by former SCCRC Board Member, Mr Chris Shead, QC (now Sheriff Shead) that these applications were rejected without obtaining court transcripts to properly scrutinize whether there was or was not ‘sufficiency of evidence’ under the ‘test of corroboration’, the cornerstone of Scots Law.

First of all, it is clear from the minute that a ‘committee’ of two people does not suffice in terms of the SCCRC’s statutory obligations under section 194 of the Criminal Procedure (Scotland) Act 1995. Secondly, Mr. Sinclair is not a “board” member and neither is his deputy, so I am further unable to reconcile from their own minutes how they are complying with the statutory powers bestowed upon them. A quorum of three board members must take part in such decision-making process, greatly affecting the lives of the populace of Scotland. Thirdly, within the board minute it identified this was a matter of ‘policy’, which needed to be agreed at the next meeting. I note from auditing the following minutes this ‘policy action’ agreed by the board to be undertaken within such agreed timeframe was not actioned as minuted.

The Kevin Nunn v CCRC decision places an extra duty of care (“safety net”) on the likes of the SCCRC organization. I have also seen further correspondence whereby they have informed an ‘insufficiency of evidence’ applicant that it’s “how the evidence transpires” that matters.

As a concerned member of the public, can you please ask the Cabinet Secretary for Justice to confirm: -

(1) In terms of the SCCRC Board agreed action, confirmation of (a) was this ever actioned; (b) what period of time to do so; (c) on what date and at which board meeting, as I cannot find any board minute confirming this was actioned and no indication of a further decision to overturn the earlier board agreement for such board agreed course of action;

(2) In terms of applicants’ constitutional rights and SCCRC statutory obligations, confirmation if the SCCRC have established how many applications this statutory breach applies to;

(3) Confirmation of have the SCCRC notified each applicant of this breach of statutory duty, and as a matter of fairness and statutory compliance, given the applicants re-assurances that their applications shall be properly re-processed in accordance with their statutory obligations;

(4) I note that the SCCRC misinform applicants that their body is “completely independent” from the court, but it is clear from the above that Sheriff Sinclair contravenes this SCCRC public policy statement. This breaches the Government sponsor department’s ‘Justice Strategy for Scotland’ [“Respecting the proper separation of organisational powers, is crucial to deliver an effective and efficient justice system], as part of the so-called fully aligned and integrated criminal justice system. Please note that within earlier correspondence the Minister states the justice system ‘benefits’, from such structure (to include state prosecutors investigating acts and omissions of the state prosecutor) whereas the Justice Strategy for Scotland states organizational separation of powers’ is “CRUCIAL” to the practical and efficient operation of the justice system. Can I please have the Minister’s clarification on this conflict;

(5) Can the Minister please confirm if the SCCRC are bound by Article 6 of the European Convention of Human Rights;

(6) Can the Minister please confirm precisely what duty of care is owed to applicants and public at large. I note from the SCCRC’s Code of Conduct and Stage 1 Application Process ALL ‘conflicts of interest’ must be declared and managed by Sheriff Sinclair, the SCCRC CEO. It is perfectly clear from such corporate governance Sheriff Sinclair had a duty of care owed to the public at large and applicants, and it was reasonably foreseeable to any legally qualified person of Sheriff status that asking a state prosecutor to investigate acts and omissions of a state prosecutor lacked the appearance of independence and impartiality, and was illegal in ALL jurisdictions.  It is therefore essential, the Minister sets out the duty of care owed to the public at large.

(7) Can the Minister please confirm why Article 13 of the Convention has not been incorporated into the constitution and if Scotland cannot deliver a ‘remedy’ due to such anomaly. It is for the Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time Scordino v. Italy (no. 1) [GC], § 183, and Sürmeli v. Germany [GC], § 129 [See point (Cool]

(Cool In the course of their Tsfayo judgment, the ECHR emphatically endorse the Administrative Court's decisions in R (Bewry) -v- Norwich City Council [2001] EWHC Admin 657 and R (Bono and another) -v- Harlow District Council [2002] 1 WLR 275 (Admin). As a result of the ECHR’s decision, if an individual's claim is dismissed solely on the grounds of credibility by a decision maker who is not independent and impartial, by definition, judicial review cannot cure the first instance deficiencies and a violation of Article 6 has taken place. A Nobile Officium procedure has been made aware of this legally binding decision that judicial review cannot cure this defect and in such wholly extra ordinary and unforeseen circumstances, but the court has ruled the Nobile Officium in a civil setting is not the mode for securing the right to a domestic remedy. Can the Minister, please confirm in general terms (not legal advice) what procedure is available to the populace of Scotland. Does a domestic procedural remedy even exist, given the Nobile Officium’s decision?

(9) The wording of section 100 SA indicates that it was drafted on the assumption that the court may grant such relief or remedy as it considers appropriate. Section 100(1) provides that the Act "does not enable" a person to seek these remedies unless he would be a victim for the purposes of article 34 of the Convention. In terms of section 57(2) of the Scotland Act 1998, read in conjunction with the common law decision in Ruddy, the Minister cannot “propose” to act in any way which is incompatible with the states obligation and the populace of Scotland’s rights. He has now been made aware of several statutory breaches and the Government has an obligation to organize their institutions to be Convention compliant, which is conclusively not the case. I require confirmation as to when the “completely independent” scenario violation came to his attention and if he stands by this being of ‘benefit’ and what he intends doing about this anomoly. When his own Justice Strategy is not a slight variation but reads the polar opposite and both positions cannot be right.  

As an institution, temporary sheriffs did not constitute an independent and impartial tribunal for the purposes of Article 6(1). An indication that the Scottish Courts are willing to embrace the protection brought by Article 6(1) in comparison with traditional protection under the common law. In explaining the influence of the Convention on the mechanisms for ensuring the independence of the judiciary, Lord Reed stated: Although the Convention protects rights which reflect democratic values and underpin democratic institutions, the Convention guarantees the protection of those rights through legal processes, rather than political processes… It would be inconsistent with the whole approach of the Convention if the independence of the courts itself rested upon convention rather than law.” Thus, despite the protection under common law for independence of the decision-maker from parties to a case, this dictum acknowledged that ‘the notion of judicial independence at the apex of the domestic structure was heavily reliant on both convention and understanding’. As a consequence, Article 6(1) has resulted in recognition of the need for institutional independence, to avoid perceptions of bias, as well as ensuring structural autonomy. Partly as a consequence of this and other rulings, ‘there has been a notable trend towards the formalisation of the relationship between the judiciary and other branches of government’. Accordingly, to ensure compliance with Article 6(1), both the Scottish and Westminster Parliaments have passed legislation to ensure the institutional independence of the judiciary. This leaves no doubt as to the innovation of Article 6(1) in this area: as a result of its provisions and the ECtHR jurisprudence, ‘the constitutional position of the judiciary has come under increasing scrutiny’ and, furthermore, the institutions of the judiciary in both Scotland and England have been modified to comply with Article 6(1).
In Timofejevi v Latvia (application no 45393/04), a case involving the same police force investigating the allegation, the ECtHR in its judgment of 11 December 2012 had confined itself to expressing "serious doubts" about the independence of any such investigation. Under reference to broadly similar language in the English version of the judgments in the other cases to which reference had been made, counsel submitted that it could not be said that the ECtHR had ever plainly stated that investigations involving officers of the same police force could never be independent. Thus in Çağlayan v Turkey, at paragraph 49, the court had referred to the appointment of senior police officers as investigators as being "inappropriate, given that the allegations were directed against the police force of which they are members." Furthermore, the investigation should be independent from the executive (see Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III, and Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 37, 20 July 2004). Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms (see Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV).
In determining whether a body can be considered to be “independent”, the Court has had regard, inter alia, to the following criteria (Langborger v. Sweden, § 32; Kleyn and Others v. the Netherlands [GC], § 190): the manner of appointment of its members and the duration of their term of office; the existence of guarantees against outside pressures; and whether the body presents an appearance of independence. Where a tribunal’s members include a person who is in a subordinate position, in terms of his duties and the organisation of his service, vis-à-vis one of the parties, litigants may entertain a legitimate doubt about that person’s independence. Such a situation seriously affects the confidence, which the courts must inspire in a democratic society (Sramek v. Austria, § 42). The question is always whether, in a given case, the requirements of the Convention are met (Kleyn and Others v. the Netherlands [GC], § 193). Indeed, the notion of independence of a tribunal entails the existence of procedural safeguards to separate the judiciary from other powers. (Also see Beaumartin v. France, § 3Cool
As identified within Agrokompleks v. Ukraine, § 136; De Haan v. the Netherlands, §§ 52-55 the constitutional safeguards of the independence and impartiality of the judiciary do not suffice. They must be effectively incorporated into everyday administrative attitudes and practices.
It is perfectly clear from a copious amount of legally binding authorities that Strasbourg has consistently re-approved the need for the likes of the SCCRC to be “completely independent”. Such a SCCRC Mission Statement is nothing more than rhetoric, illusionary, and is neither ‘practical’ or ‘effective’. As a matter of grave public concern, I am bringing to the attention of the Minister that under section 6(1) of the Human Rights Act 1998 no public authority can act in a way which is incompatible with a Convention right. Under his duty under section 57(2) of the Scotland Act 1998, read in conjunction with section 2 (1) a of the Human Rights Act 1998 must take into account any “judgment, decision, declaration or advisory opinion of the European Court of Human Rights” as per the “Ullah Principal”. I am therefore looking for confirmation of what derogation or over-riding authority the Minister has to apply his own discretionary interpretation. Under section 11 of the Human Rights Act 1998 it legislates, “A person’s reliance on a Convention right does not restrict — (a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom. Article 17 provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of rights guaranteed in the Convention. This addresses instances where states seek to restrict a human right in the name of another human right, or where individuals rely on a human right to undermine other human rights. Article 18 provides that any limitations on the rights provided for in the Convention may be used only for the purpose for which they are provided.

The bottom-line is: “A member of the Scottish Executive has no power to…act is incompatible with any of the Convention rights or with EU law. I am therefore looking for confirmation the Minister either stands by his decision or concedes he has made a serious error of judgment. I am looking for cast iron assurances he shall commission a full investigation/ review of the operation of the SCCRC with a view to restructuring this to be fully compliant with the Convention.  To include the removal of Sheriff Sinclair to restore public confidence in the ability of the justice system to cure miscarriages of justice in a “completely independent” way. Anything short of such safeguards and undertakings, shall leave me with no other alternative but to engage section 91 of the Scotland Act 1998 and report the Minister under sub section (1) whereby “The Parliament shall make provision for the investigation of relevant complaints made to its members in respect of any action taken by or on behalf of — (a) a member of the Scottish Executive in the exercise of functions conferred on the Scottish Ministers”, and which clearly the Cabinet Secretary has exceeded his authority and jurisdiction, under section 57(2) of the Scotland Act 1998, the Human Rights Act 1998 and ECtHR, when he has a statutory duty to be bound by such authorities.

Thanks in anticipation of your valued assistance and I look forward to your response in due course.

Yours faithfully,

Lilian M. (Lily) Gordon, MA, MEd Forum Index -> Test Forum 1
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Sincere thanks to all those who have supported Shirley and challenged miscarriages of justice on this forum.