Thursday 24 April 2014

Problems and pitfalls of new SCCRC application and appeal

On 20 December 2013, I posted on this blog an item headed A new SCCRC application: problems and pitfalls, in which I explained (a) some of the hurdles that recent Scottish Parliament legislation had placed in the path of anyone seeking to bring the Megrahi conviction before the High Court of Justiciary for a further appeal and (b) how a Bill currently before the Scottish Parliament, once passed, would alleviate some of the problems.

It has just been announced that that Bill (which, amongst other things, highly contoversially proposes abolition of the requirement of corroboration in criminal proceedings) will proceed no further in the Scottish Parliament for at least one year.  That means that any further reference by the Scottish Criminal Cases Review Commission of the Megrahi case to the High Court (assuming that a fresh SCCRC application is on the cards) will be subject the current unamended legal provisions.

For ease of reference, here is my earlier blogpost, with the amendments to the law that would have taken place had the Bill proceeded in red type:

[In the light of recent speculation that a further application may be made to the Scottish Criminal Cases Review Commission with a view to securing a third appeal to the High Court of Justiciary against the conviction of Abdelbaset Megrahi, I set out the legislative provisions that are in force, or are likely to be in force when any such application comes to be considered.

The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (the Cadder Act) currently provides as follows:]

7 References by the Scottish Criminal Cases Review Commission

(1) The 1995 Act [the Criminal Procedure (Scotland Act 1995] is amended as follows.
(2) In section 194B (SCCRC's power to refer cases to the High Court), in subsection (1), before “the case” insert “ , subject to section 194DA of this Act, ”.
(3) In section 194C (grounds for reference)—
(a) the existing words become subsection (1), and
(b) after that subsection, insert—
“(2) In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings.”.
(4) After section 194D, insert—
“194DA High Court's power to reject a reference made by the Commission
(1) Where the Commission has referred a case to the High Court under section 194B of this Act, the High Court may, despite section 194B(1), reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.
(2) In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.
(3) On rejecting a reference under this section, the High Court may make such order as it considers necessary or appropriate.”.

[In other words the SCCRC, in determining whether it is in the interests of justice to refer a conviction to the High Court, must have regard to the need for finality and certainty in the determination of criminal proceedings. Likewise, even if the SCCRC refers a case, the High Court itself may refuse to hear the appeal as not being in the interests of justice, having regard to the need for finality and certainty in the determination of criminal proceedings.

However, the Criminal Justice (Scotland) Bill currently before the Scottish Parliament and due to complete Stage 1 of its parliamentary progress on 28 February 2014, will make the following changes to the law:]
82 References by SCCRC
(1) The 1995 Act is amended as follows.
(2) In section 194B—
(a) in subsection (1), for “section 194DA of this Act” there is substituted “subsection (1A)”.
(b) after subsection (1) there is inserted—
“(1A) Where the Commission has referred a case to the High Court under subsection (1), the High Court may not quash a conviction or sentence unless the Court considers that it is in the interests of justice to do so.
(1B) In determining whether or not it is in the interests of justice that any case is disposed of as mentioned in subsection (1A), the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.”.
(3) The title of section 194B becomes “References by the Commission”.
(4) Section 194DA is repealed.

[In other words, if this Bill is enacted the SCCRC, in determining whether it is in the interests of justice to refer a conviction to the High Court, must still have regard to the need for finality and certainty in the determination of criminal proceedings.  But if the Commission makes a reference, the High Court will no longer have the power to refuse to hear the appeal on “finality and certainty” grounds; though, once the appeal has been heard, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings before deciding that it is in the interests of justice to allow the appeal and quash the conviction.

There is, of course, a further problem, even if the SCCRC referred the conviction back to the High Court.  Abdelbaset Megrahi is dead. Who would conduct any posthumous appeal on his behalf?  The relevant statutory provision is section 303A of the 1995 Act:]

(1) Where a person convicted of an offence has died, any person may, subject to the provisions of this section, apply to the High Court for an order authorising him to institute or continue any appeal which could have been or has been instituted by the deceased.

(2) An application for an order under this section may be lodged with the Clerk of Justiciary within three months of the deceased’s death or at such later time as the Court may, on cause shown, allow. (...)

(4) Where an application is made for an order under this section and the applicant—
(a) is an executor of the deceased; or
(b) otherwise appears to the Court to have a legitimate interest,
the Court shall make an order authorising the applicant to institute or continue any appeal which could have been instituted or continued by the deceased; and, subject to the provisions of this section, any such order may include such ancillary or supplementary provision as the Court thinks fit.

(5) The person in whose favour an order under this section is made shall from the date of the order be afforded the same rights to carry on the appeal as the deceased enjoyed at the time of his death and, in particular, where any time limit had begun to run against the deceased the person in whose favour an order has been made shall have the benefit of only that portion of the time limit which remained unexpired at the time of the death.

(6) In this section “appeal” includes any sort of application, whether at common law or under statute, for the review of any conviction, penalty or other order made in respect of the deceased in any criminal proceedings whatsoever.

[If a successful application to the SCCRC were made eg by a relative of a Lockerbie victim, would the High Court regard such a person as having “a legitimate interest”? It is fervently to be hoped that the court would not refuse to recognise someone like Dr Jim Swire as having a legitimate interest. But there can be no guarantee of this.  These obstacles go some way towards explaining why the institution by the Scottish Government of an independent inquiry into the Lockerbie investigation and prosecution and the conviction of Megrahi has been and remains my preferred option.]

16 comments:

  1. I knew it, I knew it, I just knew it! Why did I not go down to Ladbrokes and open a book? Idiot! Hallelujah, 1370 lives to fight another day! Thanks Kenny.

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  2. It seems to me any appeal should have been lodged within the three months after Megrahi died.
    We all know our courts will use every excuse in the book to reject such an appeal and I fear it will now use the need for finality & certainty as they did recently with Carberry.
    Nothing Ventured Nothing Gained.
    Why shouldn't Jim Swire register an appeal with SCCRC ?

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  3. There can't be an appeal unless and until the SCCRC makes a fresh reference back to the High Court. Once that happens the three months will start to run.

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  4. In respect of the Camp Zeist trial I did not see how, with many of the prosecution claims that were accepted by the Trial Judges, this requirement for corroboration had any effect. It seems that the requirement for corroboration was mere semantics. for example Richard Marquise recently stated that Megrahi was in Malta at the time the clothing was purchased "corroborated by the shopkeeper Gauci".

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  5. Is it not the case that my discovery that "photograph 117"
    (depicting the exhibit PT/2 as a Casper the friendly ghost-shaped tiny clump of paper) was taken ten days after Dr Hayes supposedly sketched and identified the five constituent sheets of PT/2 sufficient grounds for the Crown to quash Mr Megrahi's conviction?


    As far as I can see the SCCRC knew perfectly well photograph 117 was not taken until the 22/5/88 but may have relied on the defence team being too dumb to notice this. They certainly knew from their own Forensic Document Examiner that there was something seriously amiss with "page 51" of Dr Hayes notes but bent over backwards to explain this away? What therefore is the point of the SCCRC examining their own blunder or cover-up?

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  6. Got them. Gott'em Ya beauty! Love Ya Kenny!

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  7. Baffled person here.

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  8. Add it up Rolfe. It's called a cluster-XXXX of circumstantial evidence. Maybe you political tykes need to get out of the sticks more often. The sky is clearer from where I sit. But, there again, I am not in the same party.

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  9. I think many serious and casual observers of this case would find it helpful if there were fewer cryptic references and in-jokes, such as feature above, swapped among case insiders such as Quincey. I'm sure I'm not alone in finding this unhelpful.

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  10. Fair point Aku. I shall now abstain.
    Having said that though, do bear in mind that Zeist was an entirely circumstantial case which convicted some random Libyan on the basis of three blokes' imaginations. I also do not share the politics of Rolfe, despite the fact that we know each other fairly well. Cryptic? No. I don't hide. I'm an open target.

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  11. I don't know what he's talking about either.

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  12. I don't know what my support for Scottish independence has to do with the price of fish. It's possible to disagree on that point and remain on good terms. I just don't understand why it has been dragged into this discussion at all.

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  13. Who raised Scots independence? You? Anyway, I quite like fish. Especially when they are on my plate! Yum! Tasty!

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  14. The only significance of Scottish independence is that a free nation would've reviewed this case entirely differently, devoid of the pressures that were brought to bear on it from England and the U.S. to achieve the satisfactory result at the show trial.

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  15. I don't think we can know what would have happened as regards Lockerbie if Scotland had been independent all along. Every country is capable of buckling under pressure, and/or of making a complete balls-up of what should have been fairly simple forensics, or producing judges who don't believe those nice policemen would ever bring someone to court who wasn't guilty. Or whatever the hell happened. And an independent Scotland would be just as fallible as any other comparable country.

    However, the union has served those affected by the disaster extraordinarily badly. I think it's time to try something different.

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  16. As "Adequately Explained by Stupidity?" explains the case should never have been outsourced to Scotland in the first place.

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