Provision by Provision Commentary Level 2 disclosures: review applications Section 30: Appeal against independent reviewer’s decision
60.This section allows an appeal to a sheriff on a point of law only against a decision of the independent reviewer. The “point of law” ground would include an appeal on many of the grounds which might be the subject of an application to the court for judicial review. For instance, an appeal may be taken if the applicant claimed that there had been procedural unfairness in the process before the independent reviewer, or if the independent reviewer’s decision was said to be incompatible with the applicants ECHR rights.
61.An appeal may be taken by the applicant or, where a decision by the chief constable was under review, the chief constable. An appeal must be made within three months of the independent reviewer’s decision, starting on the date on which the decision was notified to the applicant. Both the applicant and the chief constable can provide notice that they do not intend to appeal the independent reviewer’s decision. If notification is given to Ministers of an intention not to appeal to the sheriff before the end of that three-month period, the right to appeal is lost. Notifying Ministers sooner of an intention not to appeal will allow the process under section 31 for providing a new Level 2 disclosure to begin sooner (see section 31(6)(c)).
62.The role of the sheriff in an appeal is to confirm or overturn the independent reviewer’s decision. Any finding of fact on which a conviction was based cannot be challenged in the course of an appeal. The sheriff can hear the appeal in private. The sheriff can allow an appeal in part where it relates to more than one decision or information about two or more convictions. The sheriff’s decision in an appeal is final.