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“.