certainly doing a good job in identifying potential miscarriages of justice.” Sinclair said it is difficult to gain a clear


indication of how well the legal system works through statistics alone. He said: “People can use the statistics to


try and prove a wide variety of things. For example, we have had a referral rate of 8.5 per cent of the cases we have reviewed. In England, the referral rate to the appeal court is 3.7 per cent. Does that mean we have a greater proportion of miscarriages of justice than in England? “Or are we better at detecting them? It


is difficult to say. If you look at how those referrals are converted into successful appeals, it is 71 per cent in England and 69 per cent in Scotland.” A considerable part of the SCCRC’s work


is shaped by political and legal developments and it regularly has to react quickly to change. One of the most challenging issues it has


faced came in October this year when the Supreme Court in London demanded that a long-standing practice in Scotland’s legal system had to change. Until then, police had been allowed to question suspects for up to six hours without a solicitor present. Te issue, which the European Court said was a breach of human rights, was taken to the Supreme Court by Peter Cadder, who was convicted of assault in 2009 after being questioned without legal representation. Te ruling, which many feared could result


in thousands of appeals, added to the work of the commission. Sinclair said: “Normally we get around 110


cases per annum and we have a structure and staffing geared to meet that. In the 11 years we have been here there have been a couple of spikes that have happened because of


Beyond the headlines


Child detention ‘to end’


Child detention in the UK has been an ongoing saga that, at times, seems as though it will never be resolved. But in what is claimed to be the biggest development so far, Deputy Prime Minister Nick Clegg, who once labelled the practice “state-sponsored cruelty” while in opposition, announced that by May 2011, child detention will be a thing of the past. However, it will be greeted with only a cautious welcome by the many who have been campaigning against it. On coming to office last May, Immigration Minister Damian Green promised child detention would be ended “within months”. In June he said it would be done in


changes in the law, the last one being in 2005. Cadder is certainly another spike. “In the month the Cadder verdict was announced and emergency legislation passed, we received more than 30 cases – we normally get between eight and ten cases a month, on average. “In the short term what we have done is create a backlog of cases which are basically


“We don’t have the luxury of being able to go back 30 or 40 years to see how


our predecessors dealt with certain matters ”


held in a pool and are ready to be allocated to legal officers. We have dealt with the first batch of Cadder cases during the course of this month. “When we have had spikes in the past they


were relatively short-lived and I suspect this may be the same. We have had discussions with the Scottish Government about the difficulties of such an influx and they are aware of that and how it would impact our budget.” Te Cadder impact has led to the SCCRC having one of its busiest years. Sinclair added: “To date we have had 120


applications in this year and we still have around three months to go. If we were to pass 165, which I suspect we might, this will be our busiest year. “It means that it is a fun time to be at the


commission, but at a time when there are constraints on public spending and budgets, it becomes even more challenging.”


“weeks, rather than months”. However, in October he backtracked and told the Tory party conference in Birmingham that the deadline had been moved to December. We are now told it will be May. The new system will involve an independent panel judging cases. While those families who have exhausted the appeals process will be offered help with returning to their own countries, there will still be a policy of enforced return for “hard core cases”. However, these families will be held in accommodation, independently run by charities and “very different from Dungavel and Yarl’s Wood”, for a maximum of three days with children allowed to leave the premises under supervision. Campaigners north of the border have been quick to add a cautious tone to the debate. In May this year, the coalition said it had placed an immediate end to child detention in Scotland – but, in


Without doubt the commission’s most high-profile referral came in 2007 when it said Megrahi’s conviction could have been a potential miscarriage of justice. Te SCCRC produced an 800-page report


of the decision taken at Camp Zeist in the Netherlands in 2001. A further 14 pages offered evaluation of new evidence and new circumstances surrounding the case against Megrahi, and identified six key areas where a potential miscarriage of justice may have taken place. However, when the Libyan abandoned


his appeal last year and was released on compassionate grounds, it meant the commission’s report would not be released. Te Scottish Government imposed an order saying the reasons for reaching its conclusion cannot be released unless it receives permission from the bodies that provided evidence. In early December the commission announced that it had been unsuccessful in its attempts to reach an agreement with the relevant parties, which includes the Foreign Office and Crown Office. Sinclair said: “It has become obvious


that there is no likelihood of obtaining the unqualified consent in terms of the order, and consequently, it was decided to discontinue discussions. “Te commission’s position, in principle,


had always been that we would be happy to release the statement of reasons, subject to the constraints we operate under as a public body.” He added that it may be better if the


document was published, as opposed to running the risk of sections being leaked at a later date. Campaigners adamant that Megrahi is innocent say the document is crucial, but fear it may never see the light of day.


reality, this only meant that instead of locking up children at Dungavel, in South Lanarkshire, they were simply moved south to Yarl’s Wood removal centre in England. In 2009, under Gordon Brown, nearly 1000 children in total were detained in the UK. A recent report by the current Government has stated that just 78 children are in detention. While it is an improvement, it is surely 78 too many. A study by the charity Medical Justice reports that in two out of three cases, children in detention experienced a negative impact on their physical health, one third witnessed violence, and more than 50 per cent had been psychologically harmed – the report said the average age of detained children in the UK is five. The latest announcement is indeed a step in the right direction, but given the UK’s record on asylum and immigration, it is little wonder few people will be taking it at face value.


January 2011 Holyrood 49


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