Thursday, 4 November 2010

Megrahi lawyer attacks Bill that axes safety net on right to appeal

[What follow are excerpts from an article in today's edition of The Times. It can be read -- but only, of course, by subscribers -- here.]

A leading human rights lawyer last night alleged that ministers had “pulled up the drawbridge” on victims of miscarriages of justice.

Tony Kelly, best known for representing Abdul Ali Baset al-Megrahi, the convicted Lockerbie bomber, said he was astonished by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill, passed by MSPs in an emergency session last Wednesday, which seemed designed to reduce the number of cases going to appeal. (...)

He said the new law would cut across the powers of the Scottish Criminal Cases Review Commission (SCCRC) to have potential miscarriages of justice reviewed and would discourage individuals from embarking on the appeal process.

“Loud and clear, the message from this legislation is ‘Don’t appeal’,” he said.

His intervention followed the remarks of Robert Black, Professor Emeritus of Law at the University of Edinburgh, who earlier claimed that new legislation created a conflict of interest within the High Court, which had effectively been handed the power to block any appeal.

Section 7 of the Bill deals with references from the SCCRC and says: “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.”

Mr Kelly said that in relation to “certainty” and “finality”, the SCCRC had been established to deal with cases that were final and certain.

Between 1999 and 2010, it received a total of 1186 cases, completed the review of 1136 cases and referred 97 cases to the High Court for determination. Theoretically, under the terms of the new legislation, all 97 could simply have been turned away by the High Court.

Mr Kelly said: “The SCCRC, when it was set up, was viewed as a safety net, it examined cases that fell out with the normal run of evidence and admissibility. Those included miscarriages of justice — and Scotland has had its fair share of those.

“There was a specific exception from that finality clause — enabling the commission to exercise its discretion in certain cases. How can you possibly pull back from that?”

Mr Kelly, who is visiting professor in human rights law at the University of Strathclyde, added: “Most concerning, is the fact that the High Court has two separate powers.

“It can immediately bounce a reference from the Commission if it doesn’t consider it in the interests of justice, and, in determining any appeal, it has got to have regard to ‘finality’. Loud clear, the message is: ‘Don’t appeal’.” (...)

Mr Kelly said that he was at loss to explain why the Cadder ruling had been extended to the right to appeal.

“The only rationale I can see is that they are pulling up the drawbridge, making it more difficult for people to submit applications to the Commission and for the Commission to refer cases to the High Court,” he said.

“You can talk about individual cases, but this is a blanket, covering every single appellant. It will be much more difficult, there will be fewer appeals.”

John McManus, project officer for Miscarriage of Justice Organisation (Mojo), said the legislation brought to mind the saying: “Who guards the guards?”

He added: “You are asking judges to judge themselves. They have passed verdict. Will they be willing to look at the failings of their own system?

“They seem to be closing the door even more on the appeals process.”

A Scottish Government spokesperson said that it had been obliged to act swiftly following the Supreme Court ruling.

“The Scottish Government has worked closely with the appropriate bodies to prepare for every contingency arising from the case, helping mitigate the impact on the police and justice system in carrying out their day-to -day duties protecting the public and prosecuting crime,” she said.


  1. Maybe it's because I'm a scientist that I'm so appalled by this. Certainty? Finality? These should never exist. Openmindedness to new evidence and new interpretations and new ways of looking at the world are the lifeblood of progress.

    How would it be if the Royal Society declared that we had "certainty and finality" with the conclusions of Newton? Give it up, Einstein. Get another job, Hawking.

    The idea that judges can sit there and declare something to be so which just ain't so, "in the interests of certainty and finality" is outrageous.

  2. "We must learn to trust our criminal courts and not be persuaded to follow a politically led pseudo-investigation which could only give hope to every disaffected convict in Scottish prisons who could then agitate for a second examination outwith the regular criminal legal system."
    :- Alistair R Brownlie OBE
    'Looks like this legal dude knew what was going down...

  3. I have just heard MacAskill's 'floating' the idea of repealing Newton's Law of Gravity, as under Scots Law, "...the provision for the universality of an entity to comply with the principle that every particle of matter in the universe attracts every other particle with a force that is directly proportional to the product of the masses of the particles and inversely proportional to the square of the distance between them, is adequately covered by the relevant clause in the Criminal Procedure (Scotland) Act 1995."
    In particular, he said, "May I bring your attention to PART VIII Section 124(b) of the act? '..every interlocutor and sentence pronounced by the High Court under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever..' What this says, is not everything that goes up, comes down, unless the High Court says so."