Transfer of rights of appeal

Given that the mills of the Scottish criminal justice system grind exceeding slow, it seems worthwhile to consider what the legal position would be if Abdelbaset Megrahi were to succumb to his illness before the current appeal has been decided.

In such circumstances, the provisions in the Criminal Procedure (Scotland) Act 1995, section 303A, relating to the transfer of the rights of appeal of a deceased person, would come into play. This section reads:

'(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.'

Were Abdelbaset Megrahi to die before the conclusion of the appeal, it seems probable that resort would be made to this procedure and that the appeal would continue. But in simple humanity, surely all concerned in the current proceedings should strive to the utmost to secure that the appeal proceeds with the greatest possible expedition, in order to render resort to the transfer procedure superfluous.