Monday, 1 November 2010

Cadder provision creates “new hurdle” to Megrahi appeal

[This is the headline over an article just published on the website of Scottish lawyers' magazine The Firm. It reads as follows:]

A provision in the emergency legislation introduced following the Cadder case has created “an entirely new hurdle” for the planned resurrection of Abdelbaset Ali Mohmed Al Megrahi’s appeal by the bereaved Pan Am 103 families.

The new Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill was rushed through all its Parliamentary stages on 27 October, under the justification that its emergency procedures required to be enacted swiftly in the wake of the Cadder case, which ruled that Scots arrest procedure was incompatible with EU law.

Professor Robert Black QC says section 7 of the new Act, which has not yet received Royal Assent, creates a conflict of interest for the High Court, which is now charged with considering “the need for finality and certainty in criminal proceedings" when it decides whether to accept a referral from the SCCRC.

It could also prevent the case being heard again by the High Court when the families resurrect Megrahi's dropped appeal, as they have announced they plan to do.

“It is easy to see how such a provision could be used by the SCCRC and by the High Court if Jim Swire and other Lockerbie relatives were to seek to have Megrahi's conviction reviewed,“ says Black.

“This is such a major and fundamental change in the law that it should not be made in emergency legislation, where there has been no opportunity for public consultation.”

On Friday, the President of the Glasgow Bar Association also railed at the lack of consultation, and claimed there was not even an emergency that would justify the hasty passage of the legislation.

"There is no emergency, nor has there ever been over Cadder. But it is convenient to bury jealously guarded principles and conventions of Scots Law, which don’t suit, by creating one,” said John McGovern.

“When we have a Parliament presented with a Bill of this significance, with a debating vent so narrow, that decent, smart parliamentarians fail to understand what they’re being asked to vote upon, then we have civil service law."

Professor Black says the new provision might now tip the scales in favour of the SCCRC not referring potential miscarriage of justice cases to the High Court for a review.

“The SCCRC is now told that in considering whether to refer back for an appeal, it must take into account 'the need for finality and certainty in criminal proceedings'. This, I am sure, was always ONE of the factors that the SCCRC put into the balance when considering whether it was 'in the interests of justice' to refer back. But it is now specifically instructed to take it into account. In an evenly balanced case, it might now tip the scales in favour of not referring back,” Black said.

“Much more important is the power given to the High Court (sitting as the Criminal Appeal Court). Even where the SCCRC has decided to refer back, the High Court, in turn, can refuse to accept the reference, having regard to 'the need for finality and certainty in criminal proceedings'. This is an entirely new hurdle that has to be jumped.

“And remember that in almost every case that the SCCRC refers back, it will be an earlier decision of the High Court itself that is being said may amount to a miscarriage of justice. So the very body whose decision is being impugned can decide not to hear the challenge to that decision on the basis of 'the need for finality and certainty in criminal proceedings'.

Black warns that this creates a conflict of interest, and a dilemma for the High Court which has to act as a judge in its own cause, and create doubt about whether justice was “being seen to be done“.


  1. 'So the very body whose decision is being impugned can decide not to hear the challenge to that decision on the basis of 'the need for finality and certainty in criminal proceedings'.

    Somebody has obviously stolen Robert Black's password to the blog, and invented this silly story. That the Scottish High Court can now block an appeal against its own verdict - and on grunds which are open to any arbritrary interpretation!

    LOL! Only children would believe that such a banana-republic legislation could ever occur in a modern western democracy, where the careful separation of powers is one of the most basic fundamentals.

  2. Never mind Megrahi and Lockerbie for a minute, this is pernicious per se.

    Consider the case of Sion Jenkins, another notorious miscarriage of justice where a murder was pinned on someone despite the evidence, on the basis of massively sexing-up the significance of some forensic evidence and ignoring other parts, while meantime blackening the character of the accused in matters unrelated to the crime.

    Jenkins went through two appeals and two retrials (and six years in jail) before the case was finally thrown out. If these cretins had their "finality", he'd still be in jail.

  3. ...the High Court may...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...

    This is efficient, isn't it: they're judge, jury and appeals court. "After considering our actions we've decided that we're in the clear..."


    This fact illustrates what will constructed everything for block the truth in the Scottish Lockerbie-Affair...

    Edwin Bollier. MEBO Ltd.

  5. I looked at an article on the emergency measure. It's a little confusing to me just what's going on there. But MacAskill is the one who decided this thing needed to be rushed through?

    No mention of the finality provision there, all about length of detention without charge and presence of a lawyer.

    Has anyone explained how this change to appeals is needed to respond to Tuesday's ruling? Is it just the fear of 35000 appeals all coming in at once? Or 3501 if Megrahi's is added to the queue?

    Gotta say, considering hopes the appeal could be revived soon, this whole thing has bad timing.

  6. Apologies if the question is so uninformed it can hardly be answered politely. I can handle the truth, its okay. :)

  7. It is amazing that the media, in their reports about the emergency legislation, didn't pick this aspect up at all. At my instigation, it was raised in Parliament by Christine Grahame MSP, who even tabled an amendment to delete section 7. But all to no avail (and with no media interest whatsoever).

    The purpose of the new provision is to minimize the number of people (convicted on the basis of admissions made during police interviews conducted without their having access to legal advice) who are (a) allowed an appeal by the SCCRC or (b) allowed by the High Court to proceed with that appeal if the SCCRC still decides to grant them one.

    It is (b) in particular that is the monstrosity. If the SCCRC says that a miscarriage may have occurred and that it is in the interests of justice that there should be an appeal to the High Court, it is nothing short of outrageous to allow the High Court -- the very body responsible for the miscarriage of justice that the SCCRC says may have occurred -- to decide not to hear the appeal "in the interests of certainty and finality".

    It is shameful that any supposedly responsible government should have proposed such legislation and that any supposedly responsible legislature should have supinely enacted it.

  8. This is bulls***. Suspicious timing, too.

  9. I wonder if the e-petition which was granted an extension because the web site was unavailable, will be granted an extension because the web site has been unavailable?

  10. It's completely appalling. Never mind Libyan terrorists or whatever, any one of us could be the next Sion Jenkins.

  11. ['just reading the minutes of last Friday's Public Petitions Committee meeting - not a smidgen of a comment about concern regarding the e-petition system being out of action. This parliament operates like yer toon coonsil - no connected thinking, no one gives a damn, standards are strictly for other people.]

  12. It's bad enough to have corrupt judges but to alter the law to facilitate corruption equates the Scottish justice system with that of a dictatorship.