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Court Of Session Refuses Defective Representation Petition

Kelly v Scottish Criminal Cases Review Commission [2021] CSOH 51

The Court of Session has refused the petition of a prisoner who sought to have his case reviewed by the SCCRC. The petitioner, Mr Kelly, was convicted in 2019 of multiple sexual offences against children dating back to the early 1980s. The petitioner was currently serving 10 years imprisonment for the crimes, having been refused leave to appeal both his conviction and sentence. 

In his request for the SCCRC to review his case, the petitioner claimed that he had suffered from defective representation. It was submitted to the SCCRC that Mr Kelly has not been consulted with during his trial by either his solicitor or counsel, in relation to the use of defence witnesses. The petitioner alleged that the failure to call key defence witnesses was a crucial factor in his conviction by a jury. The application to the SCCRC mentioned that as a result, key testimony had not been heard and so the petitioner’s defence was not effectively put forward to the jury. The SCCRC determined that no miscarriage of justice had occurred. 

These same grounds form the basis of the petition before the Court of Session. Counsel for the petitioner submitted that as a result of the failings of the petitioner’s representatives at trial, a miscarriage of justice had, indeed, occurred. 

The respondent submitted that no miscarriage of justice occurred, as the decision not to call certain witnesses or lead certain evidence fell within the discretion of counsel and that there was no factual basis that counsel’s decision led to Mr Kelly’s conviction. The respondents finally submitted that their decision was reasonable based on the material they had available to them.

The opinion of the Court was given by Lord Arthurson, who said: “The way in which [a] defence is conducted is a matter for the professional judgement of counsel and criticism of strategic or tactical decisions as to how that defence should be presented will not be sufficient to support a defective representation appeal if these decisions were reasonably and responsibly made by counsel in accordance with his or her professional judgement.”

Addressing the SCCRC’s assessment of the case, the Court held that: “The respondents have reached clear conclusions on the key question of a miscarriage of justice, applying the correct test in the context of a defective representation claim such as this, and given full and cogent reasons in respect of the material available in the review exercise before them.”

Accordingly, the petition was refused. 

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