THE number of notorious miscarriages of justice in England in recent times made a radical reform of the system south of the Border both urgent and inevitable.

The Royal Commission on Criminal Justice duly recommended that the Home Secretary's power to send cases to the Court of Appeal in England should be removed and handed to an independent review authority.

This has now been enacted in the Criminal Appeal Act 1995, and is being set up in England.

The remit of the Royal Commission did not extend to Scotland, but Mr Ian Lang, then Secretary of State, considered that the complex issues of miscarriages of justice and the criteria for referring cases to the Court of Criminal Appeal should be considered by an independent committee.

That committee, chaired by Sir Stewart Sutherland, now has reported after long deliberation, and Mr Forsyth has accepted the bulk of its recommendations on the criteria for referring cases to the appeal court.

However, he has rejected what most would see as the committee's key recommendation that Scotland, too, should have an independent review body for investigating alleged wrongful convictions.

Under the current system, following a conviction in serious cases such as murder and rape, anyone can petition the Scottish Secretary for his or her case to be referred to the appeal court.

Since the system was introduced in 1928, 14 people have had their cases referred back to the appeal court by the Secretary of State, with six convictions being quashed.

In practice, this usually happens where some new evidence or some other important factor not considered at the trial, has emerged and suggests that there might have been a miscarriage of justice.

It might be a complaint about alleged perjury or identification evidence, a change of evidence by a witness, or a change of statement by a witness. An investigation is then carried out by officials from the Crown Office or the office of the relevant procurator fiscal. Recently, a dedicated unit was set up in the Home Department of the Scottish Office to deal exclusively with petitions alleging a miscarriage of justice.

According to the Sutherland Committee, one of the main criticisms of the current system was that it was constitutionally inappropriate for the Scottish Secretary to play any part in the referral process and to exercise what amounted to a quasi-judicial role.

``In particular, concerns were raised about the ability of a Government Minister to maintain a detached position in the face of what can be high profile and semi-political campaigns in particular cases.''

The committee also heard criticism that the current investigation was not thorough or vigorous enough, and that although justice might be done in most cases, it was not being seen to be done.

The committee also received a strong body of contrary evidence that there was no need for change in the present system, because it worked well and the main problem arose from the restrictive nature of the criteria for getting a hearing in the appeal court.

In the end, however, it plumped for the English solution of a new body completely independent of the executive as the one most likely to command public confidence.

``We recommend that the new body should be able to refer cases to the appeal court where normal appeals procedures have been exhausted and where it believes a miscarriage of justice may have occurred and it is in the interests of justice that the case should be referred.''

The committee worked out that the total annual cost of running an independent review body would be about #450,000 and in most cases it would use the Crown Office and police to investigate alleged miscarriages of justice.

However, it would have the power to carry out investigations using its own staff or appointing independent investigators in appropriate cases.

Mr Forsyth has decided that the committee's recommendations to make it easier for cases to get into to the appeal court - which he has generally accepted - will effectively address the main concerns about miscarriages of justice.

The key recommendation is on fresh evidence cases where the committee's aim was to establish an appeals system to identify and remedy genuine miscarriages of justice without opening the floodgates to worthless cases.

The current law, which led to a split between Scotland's leading judges in the case of Alan Church, is that the appeal court will listen to fresh evidence only if it was evidence not available at the trial and which could not reasonably have been made available.

Sutherland thinks that this strict test to be relaxed so that fresh evidence can be considered on appeal as long as it was not led at the trial and there is a ``reasonable explanation'' for that. This is the test used by the appeal court in England.

The Sutherland report takes the view that this will bring about a ``significant change'' in the way the Scottish appeal court looks at fresh evidence cases.

It also recommends that the appeal court should be given the power to overturn a jury's verdict in exceptional cases if the verdict is one that no reasonable jury, properly directed, could have reached.

A further recommendation that a ``fresh evidence'' appeal should be allowed on the basis that a witness has changed his or her testimony, as long as the reason for the change is supported by other credible and reliable evidence, has been rejected by Mr Forsyth.

He thinks it gives rise to an unacceptable risk of intimidation of witnesses and victims after a trial.

Those involved in the Scottish criminal justice system will hope that the changes proposed by the committee, particularly on fresh evidence cases, will make wrongful convictions less likely.

However, many will see the Mr Forsyth's rejection of an independent body to review alleged miscarriages of justice as a wonderful opportunity tossed away.

q Apart from Sir Stewart Sutherland, the principal and vice-chancellor of Edinburgh Univerisity, committee members were: Mr Derek Emslie QC, Vice-Dean of the Faculty of Advocates; Sheriff Gerald Gordon QC; Professor J. Ross Harper, solicitor; Professor Neil MacCormick, regius professor of public law and the law of nature and nations, Edinburgh University; Mr Andrew Normand, regional procurator-fiscal, Glasgow and Strathkelvin; Ms Alison Paterson, director, Victim Suport Scotland; Lord Ross, the Lord Justice Clerk, and Sir Leslie Sharp, former chief constable of Strathclyde.