The Margaret Taylor Interview: Gerry Sinclair looks back on a career at the SCCRC

Gerry Sinclair

“I loved it,” he says of joining the SCCRC in 2003. “I very quickly realised that it was a fantastic opportunity to make a change in terms of a career. I loved the people I was working with and I loved the board and their enthusiasm for it. It feels like I blinked and almost 20 years have passed.”

Established in 1999, the commission exists so anyone convicted of a crime can ask for their case to be reviewed if they believe they have been the victim of a miscarriage of justice. Mr Sinclair and his team receive around 150 applications a year, meaning he has reviewed well over 2,000 cases during his time at the SCCRC.

Some cases, such as the one involving convicted Lockerbie bomber Abdelbaset al-Megrahi, have been extremely high profile. However, as he prepares to retire from the commission later this year, Mr Sinclair reflects that in many ways it is the smaller, seemingly less consequential matters that have given him the most job satisfaction. One in particular that he still thinks about often relates to Polish national Jerzy Boncza-Tomaszewski – also known by the name George Fraser – who in 1948 was convicted of physically and sexually assaulting a niece who came to live with him in Scotland following the Second World War. Another relates to a young woman whose ambition to become a nurse was almost thrown off track by her inadvertently confessing to a shoplifting crime she did not commit.

“George Fraser always maintained his innocence and when we were set up some of my colleagues managed to get witnesses from Poland – at the time of his trial no witnesses could come over to assist him because Poland was behind the Iron Curtain,” Mr Sinclair says. “We were able to refer his case back and get his conviction quashed for the sexual offences.”

In the shoplifting case, the young woman made a mistake on a form relating to the theft of a bottle of shampoo. That error meant she had inadvertently admitted to the crime, something that was not discovered until she was rejected for nursing training a few years later. The commission’s investigation discovered that what she had written on the form could not be taken as an admission of guilt and that the form was void because she had not signed it.

“Her conviction was quashed and she went on to become a nurse,” Mr Sinclair says. “That was about 20 years ago and I’d like to think she’s still working as a nurse and about all the people she’s helped. We deal mainly with murder and rape and very serious cases. People ask why we deal with minor cases and whether it’s worth wasting time and money on them, but even a very minor conviction might stop you living your life.”

Regardless of seriousness, all matters have to pass the same two-tier test in order to be considered by the commission. The board needs to be satisfied not only that there may have been a miscarriage of justice, but also that it would be in the interests of justice to refer the case back to the courts. The former test considers issues such as whether the person convicted received defective representation and the latter looks at whether it would be equitable to have the conviction overturned. As Mr Sinclair says, “there could have been a failing in the court process but you have also seen evidence that the person is guilty so it would not be in the interests of justice to re-examine the case”. Last year the commission decided to look at the Lockerbie case even though al-Megrahi has been dead since 2012 because identifying whether there had been a miscarriage of justice would have implications for his family.

“It can be in the interests of justice to take on the convictions of people who are deceased,” Mr Sinclair says. “If he had been deceased but was not married and with no children we may have decided it was not in the interests of justice to refer it back.”

The SCCRC did refer the case back to the High Court of Justiciary on the grounds that some material in the Crown’s possession had not been disclosed at al-Megrahi’s original trial and that the jury had been misdirected. Five judges led by Lord Justice General Lord Carloway rejected that bid last month, noting that the undisclosed material would not have changed the verdict and that the evidence presented at trial was sufficient for a guilty verdict to be returned by “a reasonable jury, properly directed”.

Regardless, Mr Sinclair says the case was fascinating to work on because it enabled him and his colleagues to take the unusual step of looking beyond Scotland’s national borders as part of their investigation.

“Normally our reviews deal with matters within our own jurisdiction – if an assault happens on Sauchiehall Street in Glasgow normally all the witnesses come from the Glasgow area,” he says. “In a case like this a lot of the material and evidence was outside Scotland and we had to enter into agreements with a lot of other countries to get access to those materials.”

It is just one of the reasons why he believes the person who will replace him at the commission in September will be stepping into “the perfect lawyer’s job”.

“For someone who is interested in criminal law and has any type of academic bent, it’s the perfect job,” he says. “Criminal practice is a wonderful job but it’s very high pressured, it’s very demanding and it’s very demanding of your time. One of the frustrations I found when I represented clients was I always wondered if there was more I could have done if I’d had more time or more resources. Coming to the commission I realised I was being given that opportunity.”

As for Mr Sinclair, though he is leaving the commission he will continue to be involved in the legal world, maintaining his roles as a part-time sheriff and as a shrieval convener at the Mental Health Tribunal for Scotland. Other than that, he will be focusing his time on learning Spanish in the hope that he might finally be able to visit the holiday home he and his wife bought just as international travel ground to a halt due to coronavirus.

“We bought a flat in Spain last January,” he says. “We bought it knowing we would have to replace the bathrooms and kitchen and redecorate it, but as soon as the ink was dry we were put into lockdown. A team has been in and it’s ready for us, but if we get to see it by the end of the year we’ll be lucky. We have the luxury of paying for a lovely apartment that we don’t get to see.”