The Scottish Criminal Cases Review Commission has joined the growing clamour of concern about S7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, passed by the Scottish Parliament last month, with Commission chairman Jean Couper saying there is “no evidence” that the provisions in section 7 of the new Act were required.

She added that the new section was “a fundamental constitutional change in the role of the Commission and in its relationship with the appeal court in Scotland.”

She said the provision “risks undermining the role of the Commission as an independent arbiter of issues relating to alleged miscarriages of justice.”

However, Couper also said that following a meeting with Kenny MacAskill the new measures, which had been criticised for fundamentally changing the nature of SCCRC referrals, were temporary, and would be reviewed as part of Lord Carloway’s investigation into criminal procedure.

“Whilst the court has and will continue to refuse some appeals based upon a referral by the Commission and on occasion will comment upon our basis of referral, I have no evidence of any concern amongst the judiciary that the Commission is unable or unwilling to undertake its duties in a measured, considered and appropriate way,” she said.

“Section 7 of the new Act, and in particular the creation of a new section 194DA of the Criminal Procedure (Scotland) Act 1995, creates a fundamental change in the relationship between the court and the Commission.

“The new legislative framework that gives authority to the High Court to reject a reference from the Commission at the outset risks undermining the role of the Commission as an independent arbiter of issues relating to alleged miscarriages of justice. The appropriate remedy for any aggrieved party, whether this be the applicant or the Crown, to challenge a decision made by the Commission, after it has considered the matter and reached a determination, is by way of judicial review. This, we feel, is the correct forum for the Commission’s application of our statutory test to be considered and tested, and not by the High Court in terms of the new section 194DA(2).”

She said that Justice Minster Kenny MacAskill had visited the Commission after concerns were raised.

“He assured me at our meeting that the new legislation was intended to provide interim measures which will now be subject to full consultation as part of Lord Carloway`s review. The Commission has been asked to play an active part in the forthcoming consultation and review process and is pleased to do so.”