Scottish Human Rights Law Group

It was argued in support of a judicial review of the respondent Commission’s refusal to refer the petitioner’s his sentence to the High Court for determination of whether it was excessive that the Commission had failed to take into account a case (Rae v HM Advocate Unreported October 20, 2004 HCJ ) which was relevantly similarly to his own and tried before the same sheriff in which the appeal against his sentence was successful.    The petitioner argued that in failing to take the case of Rae into account the Commission had unlawfully discriminated between himself and Rae, thereby infringing Z’s rights under Article 14 of the Convention.  In refusing the application the Lord Ordinary held that held critical issue for the Commission was whether the sentence was excessive in all the circumstances and that even if the petitioner had been treated differently from the accused in Rae (which he considered to be distinguishable on its fact and not in any event a proper comparator) such difference in treatment did not amount to unlawful discrimination under Article 14. It followed that the application for judicial review was refused.

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