Sections 73-76 of the Criminal Justice & Licensing (Scotland) Act 2010 make provision for a right for the Crown to appeal certain decisions in solemn criminal cases. The provisions -
- provide the Crown with a right to appeal against certain judicial decisions that can end a trial without a verdict of a jury.
- clarify and restate the law in relation to these types of judicial decision.
Rights of appeal are being provided against -
(a) a ruling of no case to answer - where the judge rules at the close of the Crown case that the evidence led by the prosecution is insufficient in law to justify a conviction;
(b) a direction, after all evidence has been led, that the jury should not convict on a particular charge, or should consider only a reduced charge; and
(c) a ruling during a trial that an important item of prosecution evidence is inadmissible, leaving the Crown with no option but to abandon the case.
Impact
The reforms are intended to:
- ensure public confidence in the legal system is maintained by allowing an erroneous ruling to end a case to be appealed;
- promote understanding and clarity of the law and its proper application to future cases; and
- provide a safeguard for cases where a trial judge's decision to end a trial is disputed and the Appeal Court agrees that the case should have continued.
Appeals on any of these grounds are expected to be important but rare. The provisions were brought into force on 28 March 2011 by Scottish Statutory Instrument.
Scottish Law Commission
The sections are a result of recommendations of the Scottish Law Commission (SLC) in its July 2008 "Report on Crown Appeals". Certain recommendations have not been accepted as explained in the Policy Memorandum prepared when this legislation was first submitted to Parliament. The most notable departure is not adopting an SLC proposal to permit a judge to rule that no reasonable jury could convict on the evidence led.
Further information on the provisions, and on the departures from the SLC's Report, can be found in the Policy Memorandum and also in the Explanatory Notes to the Act.
Background
The SLC report into Crown Appeals was the first of three reports examining issues of criminal evidence and procedure following a reference to the Commission from the Cabinet Secretary for Justice in 2007.
The second SLC report, on Double Jeopardy, was published in December 2008 and has been followed up by the enactment of the Double Jeopardy (Scotland) Act 2011 on 28 November 2011.
The SLC is now considering the remaining parts of the reference: on the Moorov doctrine, admissibility of evidence of bad character or of previous convictions, and on similar fact evidence. A Discussion Paper on these topics was published in December 2010.