The Scottish Criminal Cases Review Commission

What the SCCRC is, who it exists for, and how the process works

The last formal avenue

For most people who reach this page the normal routes through the Scottish criminal justice system have already been tried. A trial has taken place. A conviction has been returned. An appeal may have been heard and refused. The process that was supposed to produce justice has, in their view, failed to do so.

The Scottish Criminal Cases Review Commission exists for exactly this situation.

This page explains what the SCCRC is, what it can and cannot do, how to make an application, and what to expect from the process. It also tries to be honest about what the SCCRC is not, because misunderstanding what it offers leads to expectations that the process cannot meet.

What the SCCRC is

The Scottish Criminal Cases Review Commission is an independent public body established by the Criminal Procedure Scotland Act 1995. Its function is to review convictions and sentences in cases where it is believed that a miscarriage of justice may have occurred.

It is not a court. It does not conduct trials. It does not find people innocent or guilty. What it does is investigate cases and decide whether to refer them back to the appeal court for a fresh hearing.

The SCCRC is the last formal avenue within the Scottish justice system for a person who maintains their innocence after conviction and has exhausted the normal appeal process. It exists because Parliament recognised that the appeal process alone is not sufficient to catch every miscarriage of justice and that an independent body with investigative powers is necessary to examine cases that may have fallen through the gaps.

Who can apply

Any person convicted of a criminal offence in Scotland can apply to the SCCRC. There is no requirement to have gone through the appeal process first, although in practice most applicants have done so. There is no time limit on when an application can be made. Applications have been considered decades after the original conviction.

Applications can be made by the convicted person themselves, by a solicitor acting on their behalf, or in some circumstances by a family member or other representative where the convicted person is deceased or unable to apply themselves.

There is no fee for making an application.

The test for referral

The SCCRC will refer a case back to the appeal court if two conditions are met.

First, it must believe that a miscarriage of justice may have occurred. This is not the same as believing the person is innocent. It is a lower threshold. It means there is a real possibility that something went wrong in the original proceedings that affected the outcome.

Second, it must consider that it is in the interests of justice to refer the case. This is a broader consideration that takes into account the circumstances of the case as a whole.

The combination of these two tests means that not every case where something went wrong will result in a referral. The SCCRC must be satisfied that the potential miscarriage of justice is real and substantial, not merely theoretical, and that a referral serves the interests of justice in the particular circumstances.

What the SCCRC investigates

The SCCRC has significant investigative powers. It can obtain documents and records from police, prosecutors, courts and other agencies. It can instruct forensic analysis. It can interview witnesses. It can commission expert reports. It can access material that was not available at the time of the original trial.

In practice the SCCRC often focuses on a number of key areas.

Fresh evidence that was not available at trial and which might have affected the outcome. This includes new forensic evidence, new witness evidence, or evidence that has come to light since the conviction that undermines the Crown's case.

Disclosure failures where material that should have been provided to the defence before or during trial was not disclosed. Disclosure failures are one of the most significant categories of potential miscarriage of justice and one that the SCCRC takes seriously.

Legal errors at trial including misdirections to the jury, wrongful admission or exclusion of evidence, or other procedural failures that affected the fairness of the proceedings.

Changes in the law where legal developments since the conviction mean that the original proceedings may not have been conducted in accordance with current legal standards. The Supreme Court's findings in cases regarding section 275 applications is a recent example of a legal development that has potential implications for earlier convictions.

Unreliable evidence including expert evidence that has since been discredited, witness evidence that has been undermined by subsequent information, or identification evidence that does not withstand scrutiny.

Making an application

An application to the SCCRC should set out clearly why it is believed a miscarriage of justice may have occurred. It should identify the specific concerns about the original proceedings and provide whatever supporting information or documentation is available.

Applications do not need to be made by a lawyer, although legal assistance in preparing a well-structured application is valuable and can make a significant difference to how efficiently the review proceeds. Legal aid may be available for assistance in preparing an SCCRC application and this should be explored with a solicitor before applying.

The application should be as specific as possible. A general sense that the conviction was wrong is not sufficient on its own. The SCCRC needs to understand what specific aspects of the proceedings are being questioned and why. The more clearly and specifically the concerns are articulated, the more efficiently the review can be conducted.

What happens after an application is made

Once an application is received the SCCRC carries out an initial assessment to determine whether it falls within its jurisdiction and whether there is sufficient basis to proceed to a full review.

If the application proceeds to a full review a case worker is assigned. The review process involves gathering and examining all relevant material including the trial papers, any appeal proceedings, police and prosecution records, and any new material identified by the applicant or discovered during the investigation.

The review can take a considerable time. Complex cases with large volumes of material can take years to complete. The SCCRC aims to keep applicants informed of progress but the reality of the process is that it requires patience that is genuinely difficult to sustain for people living with the consequences of a conviction they believe to be wrong.

During the review the SCCRC may contact the applicant for further information. It may also contact other parties including the Crown, the original defence team, or other agencies whose records are relevant to the review.

The decision

At the end of the review the SCCRC reaches one of two conclusions. Either it refers the case to the appeal court or it does not.

If a referral is made the case returns to the High Court of Justiciary for a fresh appeal hearing. The referral itself sets out the grounds on which the SCCRC believes a miscarriage of justice may have occurred. The appeal court then considers those grounds and determines whether the conviction should be upheld or quashed.

A referral by the SCCRC does not guarantee that the appeal will succeed. The appeal court makes its own independent assessment. However a referral is a significant step. It represents a formal conclusion by an independent public body that there is a real possibility something went wrong.

If a referral is not made the SCCRC will explain its reasons. It is possible to seek a review of a decision not to refer in some circumstances, although the grounds for doing so are limited.

What the SCCRC cannot do

It is important to be honest about the limits of the SCCRC process.

The SCCRC cannot find a person innocent. It can refer a case for appeal but it cannot itself overturn a conviction. Only the appeal court can do that.

It cannot provide ongoing legal advice or support during the review process. It is an investigative body, not a support service.

It cannot accelerate the consequences of a conviction while a review is ongoing. A person serving a sentence continues to serve it while their application is being considered.

It cannot guarantee that a referral will result in an acquittal. Some referred cases result in the conviction being upheld even after a fresh appeal hearing.

And it cannot replace the need for good legal advice. An applicant who understands the process, has legal assistance in preparing their application, and has realistic expectations of what the SCCRC can offer is in a significantly better position than one who approaches the process without any of those things.

What to take from this page

The SCCRC is an independent body that reviews potential miscarriages of justice in Scotland and can refer cases back to the appeal court where it believes a miscarriage of justice may have occurred. It is the last formal avenue within the Scottish system for people who have exhausted the normal appeal process. Applications are free, there is no time limit, and legal aid may be available for assistance in preparing an application. The process is thorough but slow and requires realistic expectations about what it can and cannot deliver.

Support organisations exist for people going through the SCCRC process and for their families. Some of these are listed in the Support and Organisations section of this site.

This page is information only and does not constitute legal advice. Law changes and individual cases vary. Anyone facing criminal proceedings in Scotland should seek advice from a qualified Scottish solicitor at the earliest opportunity.