Frequently Asked Questions

The following is a list of the most frequently asked questions concerning the Commission’s business, if there are questions that are not answered in this section, please contact us for advice.

Q. Does the Commission only consider criminal convictions and sentences?

A. Yes.  The Commission can only consider criminal convictions and sentences made by Scottish Courts.

Q. Can the Commission review a case where no appeal was taken after trial?

A. The Commission can review a case where there has been no appeal.  However, the Commission will not normally review a case unless the person has made an attempt to appeal.

Q. Does the Commission decide whether a person is guilty or innocent?

A. No.  The Commission will not decide whether a person is guilty or innocent.  The Commission has to decide whether there may have been a miscarriage of justice and if it is in the interests of justice to refer a case to the High Court for determination.

Q. Will the Commission investigate all issues raised by an applicant?

A. The Commission will review all issues raised by an applicant.  However, the Commission will take a view on whether these issues warrant investigation.  It is a matter for the Commission to decide on the nature of investigations to be conducted in cases.

Q. Do you need a solicitor to represent you when applying to the Commission?

A. No.  Anyone can assist you with your application, they need not be legally qualified.  If you are having difficulties in completing an application to the Commission, please let us know.  We will try to assist in any way possible.

Q. Will I get Legal Aid to enlist the services of a solicitor to assist in my application to the Commission?

A. Depending on your financial circumstances, you may be entitled to “advice and assistance” under the Legal Aid Scheme.  Your solicitor can tell you more about this.

Q. If my case is not referred to the High Court will the Commission tell me why?

A. Yes.  The Commission will issue a full and very detailed statement of reasons explaining why it has decided not to refer your case.  You will then be allowed suitable time to respond to the Commission’s findings; these will be taken into account before a final decision to refuse or refer your case to the High Court is taken.

Q. How long will the review process take?

A. The Commission aims to conclude all cases within a maximum of 12 months.  The review period for most cases is often shorter than this.  However, the length of the review period is determined by the nature and complexity of the investigations that have to be conducted.  The Commission will let you know as the case progresses how long the review is likely to take.

Q. Does the Commission have face to face discussions with all applicants?

A. Yes.  The Commission's staff will aim to meet all applicants face to face at least once during the review process. The Commission is also set up with video conferencing facilities.

Q. Will I be able to make representations in person to the Board of the Commission?

A. No.  The Commission’s Legal Officers are responsible for the day to day investigation and review of cases.  Any points you wish to have considered by the Board of the Commission should be brought to the attention of the Legal Officer dealing with your application.

Q. Once a case is referred does it mean that the conviction is quashed?

A. No.  Once the Commission refers a case it still has to go through the appeal process at the High Court.  The High Court will determine whether or not the conviction should be quashed or the sentence reduced.

Q. Will the Commission disclose any information about the review of my case?

A. The Commission will not normally disclose information about the review of a case unless it is necessary to disclose information to progress the review e.g. to interview witnesses, obtain expert advice etc.  If your case is referred by the Commission, a short press release will be issued announcing the fact that the case has been referred; this information will also be published in the Commission’s annual report.  However, should you wish, the Commission will disclose certain information to third parties if we have a signed mandate from you authorising us to do so.

Q. Can the Commission publish a copy of its Statement of Reasons?

A.  In general, it is a criminal offence for the Commission to disclose any information obtained by it in the exercise of its functions (s194J of the Criminal Procedure (Scotland) Act 1995).  For this reason, the Commission’s case-related information, including its statement of reasons, are exempt from disclosure under Freedom of Information legislation.

There are certain narrow exceptions which permit the Commission to disclose case-related information in limited circumstances, such as where the disclosure is in connection with the Commission’s functions (the full list of exceptions is contained in s194K of the 1995 Act).  However, at present the exceptions do not permit the Commission to publish its statement of reasons.  Even where an exception does apply, before the Commission could disclose a statement of reasons (or any other case-related information) to a third party it would have to consider other issues, including human rights and data protection legislation and the personal safety of individuals named or identified within the statement of reasons.  Such considerations might prevent the Commission from disclosing all or part of a statement of reasons or other case-related information.

Q. What do I do after my case has been referred?

A. If you don’t already have a solicitor, you need to instruct a solicitor to assist you.  You can obtain names of solicitors from the Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh, EH3 7YR, 0131 226 7411.

Q. If I am successful in overturning my conviction and being released from prison, what post release support is offered to prisoners following a successful appeal against a miscarriage of justice?

A. Local Authorities have a statutory duty under the Social Work (Scotland) Act 1968 to provide voluntary care to provide advice, guidance and assistance to all people who request such a service within 12 months of their release from custody, including those released following an appeal against conviction and/or sentence.

The Miscarriage of Justice Organisation Scotland (MOJOS) also receives funding under s10 of the Social Work (Scotland) Act 1968 to provide a one-stop service to assist persons to gain access to benefits, housing and health services and to provide access to counselling, reintegration and financial advice.  Priority is given to supporting individuals who have had their case referred to the High Court by the SCCRC.

Claims for compensation by applicants who have been released from prison following a successful appeal against a miscarriage of justice can be submitted to the Criminal Justice Directorate of the Scottish Government.

Q. Can the Commission consider a new application in respect of a conviction that it has previously reviewed?

A. Yes.  The Commission can accept applications to review convictions or sentences that it has previously reviewed.  It has done so on numerous occasions in the past.

There is no time limit on a person applying to the Commission, nor is there any set limit on the number of times a conviction or sentence can be reviewed, although generally the Commission will not accept a case for review where the only issues raised are the same as matters it rejected in the previous review.

Where the previous review resulted in the Commission referring the case to the High Court for an appeal, but the appeal was unsuccessful, the Commission would normally consider the reasons given by the court for refusing the appeal before the Commission would accept the case for a further review.  If the appeal which followed a reference by the Commission was abandoned, the Commission would normally consider the reasons for abandonment of the appeal before it would accept the case for a further review. 

Upon receipt of any such application the Commission would only accept the case for review if it considered it to be in the interests of justice to do so, applying its statutory test..

Q. Can the Commission consider an application to review the conviction of someone who has died?

A. Yes.  The Commission can accept applications for review of convictions of people who have died.  It has done so in the past.  The decision whether to accept such a case for review will depend upon various factors, including the locus of the person who was asking the Commission to revisit the matter. This is important because the High Court will only hear appeals in relation to the convictions of deceased people where the person representing the deceased at the appeal is an executor of the deceased or where it appears to the court that the person has a ‘legitimate interest’ in the case (s303A of the 1995 Act).  Therefore, where the person who applies to the Commission on behalf of a deceased person is not the deceased’s executor or an immediate family member, before accepting the case for review the Commission would normally seek the views of the deceased’s family and executor, if possible.  The Commission would also consider whether the person applying on the deceased’s behalf has a legitimate interest in the case.  Thereafter, the Commission would accept the case for review only if it considered it to be in the interests of justice to do so.

Where the Commission decides to refer a case under s194B(4) of the 1995 Act, then any subsequent application under s303A of the 1995 Act, in respect of an applicant who is deceased, must be made by the relevant person within one month of the date of the reference .

Q. How do I complain if I am not happy with the service provided by the Commission?

A. The Commission issues a service level satisfaction questionnaire to all applicants at the end of the review of their case.  You can mark your complaints on that form.  Alternatively, you can write, telephone, e-mail or speak in person to a member of Commission staff and your complaint will be taken forward in line with the Commission’s complaints procedure.  The Commission’s policy on complaints is in our Publication Scheme and can be viewed by clicking here.