Friday, 5 November 2010

The section 7 con trick

The Scottish Government has stated that section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (2010 asp 15) was required in order to stem the potential flood of appeals that might have arisen after the Cadder decision through successful applications to the Scottish Criminal Cases Review Commission. This is not so. Section 7 goes much further than was necessary to avoid the floodgates opening.

What follows are the relevant provisions of section 7 as enacted by the Scottish Parliament, followed by a redraft showing all that would actually have been required.

What was enacted
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.

All that was required
In determining whether a miscarriage of justice may have occurred the Commission shall not take into account the circumstance that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him, provided that statement was made before 26 October 2010.

What was enacted
(1) Where the Commission has referred a case to the High Court under section 194B of this Act [the Criminal Procedure (Scotland) Act 1995] , 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.

All that was required
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 only reason given by the Commission for making the reference is that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him and that statement was made before 26 October 2010.


  1. Makes perfect sense to me. If all that's new is a requirement to have a solicitor present, that's all that needs to be addressed. This rule should only apply to the feared crush of cases on these grounds, as that's the whole alleged problem.

  2. If this was a straightforward case, I'd say this development shouldn't make any difference. This new legislation wasn't for the purpose of stopping a re-opening of an appeal which had already come to court once, and whose continuation is quite obviously in the public interest and in the interests of justice. Megrahi's case has nothing at all to do with police interviews.

    But it's not straightforward. There is very clear executive and judicial will that the case should not proceed. If this new legislation gives the judiciary a loophole to block a re-opening of the appeal, who can possibly imagine they won't take it?

    I'm getting paranoid enough to wonder whether all this ridiculous hoopla about Cadder, and having to legislate in five minutes to mitigate the Supreme Court ruling about it, was actually contrived precisely so as to railroad through the "certainty and finality" stuff to scupper a re-opening of the Megrahi appeal, deliberately.

    And this is my own political party I'm wondering this about, the party I've worked for 20 years to get elected, the party that had no conceivable motivation for wanting to cover up any shadiness that happened at Zeist.

    What the HELL is going on here?

  3. You not only have a corrupt judiciary but a compliant parliament. Parties are of no consequence as they all serve the same masters and I suspect they reside in the higher ranks of the Privy Council.

  4. This is shocking stuff. Like Rolfe I'm horrified that MacAskill has presented this. At the time I recall Robert Brown of the Liberals expressing grave misgivings and warning there were proposals here which were seriously dangerous. My lack of legal knowledge made it difficult to understand what he meant. Your very helpful explanations, Prof B, have sent pennies dropping here by the barrowload. The clear signs of jiggery-pokery - and by the SNP at that - are deeply worrying.

    Anyone want to launch a new political Party? My vote is now officially floating and for the first time in my life I think I may not vote this May.

  5. I don't believe for one nanosecond that any of the rest of them would have behaved any differently. I'll still be out there with the yellow-and-black rosette and the leaflets come May.

    But I cannot for the life of me imagine what is inducing the SNP to behave like this. It's incomprehensible.

  6. Rolfe, well of course, we know the others wouldn't, which is why we expected better from the SNP. Well, I certainly did anyway. I trusted them on many issues but on this particular one I thought they would be above the usual stuff like lies, deception and turning a blind eye to the obvious. Salmond was all of that over Iraq. He voted against the illegal war. Why shouldn't he do the same over Lockerbie when at the heart of that matter we have deceit and lies too?

    Bizarrely however the SNP followed the rest and disregarded the facts and the injustice of that verdict: they ignored the SCCRC findings by repeatedly saying the verdict was sound. The appeal dragged on under their watch. Their arrival in government could have been used not just to follow the example of previous administrations in using say, prescription costs, as a source from which to raise revenue by exploiting the sick.

    The SCCRC findings were on the table just as they took the helm at Holyrood. They could have said that here too there was an opportunity for change and for justice, not necessarily for Megrahi, but for Scotland in getting to the truth about an atrocity that left many, many scars, not least on our Justice System.

    Salmond's outrage at the time it was revealed Blair's deal in the desert had Megrahi right at the centre of it suggested justice was his priority. You pointed out yourself in a prevous post that Blair had not expected an SNP administration at Holyrood. He had expected one led by Labour which would nod its head and do as it was told. (And despite Gray's protests otherwise, that is exactly what would have happened.)

    Call me naive but I genuinely believed Salmond would put up a fight, again, not in defence of Megrahi, but in defence of the truth behind the atrocity. The reasons he has not done this remain unclear but for me he is not the man I believed him to be. He could have done it and done it very well. Whatever the reasons they cannot be honourable ones.

  7. I don't know what the reasons are either. I think, however, they may be rather important.

    In 2007, when the SNP won the unexpected victory and found itself in government, their handling of the then-current PTA issue was impeccable. Kenny MacAskill clearly pissed off Blair and Jack Straw no end on the subject.

    But then in 2009 the whole thing had turned on its head. I do believe Kenny twisted Megrahi's arm to force him to withdraw the appeal. And who knows whether he had any involvement in the delaying of the appeal itself from 2007 to 2009. I certainly don't remember the Scottish government making any sort of noise about speeding up the appeal process and facilitating the justice system or anything like that.

    This is the behaviour of people who have been "got at". If that's the case, what possible leverage could have been used on SNP ministers, and by whom? That's the question I'd very much like the answer to.

  8. Oh come on Rolfe, got at? By whom and why on earth would the SNP, of all Parties, cave in to any sort of pressure? Salmond is afraid of no one, it is precisely that quality which makes him one of the most respected and admired politicians today, and much feared himself as an opponent. Most, if not all, of his opponents wish they had even half of his ability. No, I don't think he was got at. I think if there was a deal then it had to involve a trade off of some kind. "If you do this, we'll do that." sort of thing. The only problem with the theory is that I can't see that any sort of benefits were thrown the SNP's way from Westminster in return for their co operation.

  9. Exactly. I think they were got at.

    The range of possible arguments that might sway the Scottish government is so wide I couldn't easily list them. It could even come down to, if Megrahi is revealed to be innocent, the US will nuke Iran.

    I don't know anything. So I don't assume anything. As you say, there's no obvious quid for the quo. So something unobvious, and sufficient to subvert a group of people previously rather well known for their integrity.

    My mind boggles a bit.

  10. Rolfe, can you please explain how they could have been got at? Its a very big statement and for me you can't just make such a statement without some sort of evidence and there is simply no evidence to support your theory.

    I would love to find something to excuse what the SNP have done in the Megrahi case but I can find nothing.

    Being got at suggests they were bullied into it. Salmond and bullied don't go together at all, not in any circumstances. HIs passion for taking on all comers is legendary. And he would have been only too delighted surely to make public any threats issued to his government to follow the path of dishonesty, injustice and worse in the Megrahi case. Salmond is no ordinary politician.

    He didn't need backup. He had the SCCRC report right there to point to as justification for taking the appeal forward and having it heard. The SCCRC findings aren't political so he couldn't be accused of Party-politics either.

    Essentially however this is about dishonesty and that pains me because if anything the best hope Megrahi had was rooted in the fact that Scotland had a clean new government and one which wasn't involved in all that went before in this case. Labour were up to their necks in it given the original deal done by Blair and the disgraceful tactics to deny Megrahi information vital to his appeal. Salmond had nothing to lose by simply deciding to go for the truth over a matter importance to us all. Yet he chose not to. It was a win-win situation for him and the SNP as a Party.

  11. And by the way, in 2007 MacAskill wasn't the one who put Westminster right as to who would deal with the Megrahi issue. It was Salmond. He did it publicly and got into a spat with Kirsty Wark on the subject. Indeed, he humiliated Wark when her lack of knowledge on the issue was exposed for all to see on Newsnight.

    NOT MacAskill, Salmond.

  12. I don't disagree with you, except that both Salmond and MacAskill were involved in the 2007 PTA negotiations.

    "Got at" is simply a way of indicating that I think they were subjected to some sort of covert pressure. I don't know what that would be. You suspect bribery, but you correctly note that there's no sign of anything they might have been bribed with. (If all opposition to an independence referendum had vanished, maybe we'd have other suspicions!)

    Bribery, threats, coercion, I simply don't know. I'm not trying to excuse anyone, I'm far too mad about it for that. I'm just not narrowing down the possibilities as you are doing.

  13. Yes Rolfe, except you have excused them and I haven't. You're the one who says you'll be out there with your banners in May. If they were any other Party you would not afford them that courtesy. Think on that.

    And don't narrow down possibilities. You are making excuses for them. It is as simple as that. You are free to do that of course, but do have the grace to admit it instead of putting out theories you cannot support with evidence. And if I'm surprised at that approach from you blame yourself: you are always one for detail.

  14. And by the way, if you were that mad about this mess, you wouldn't be going out with SNP banners this May given MacAskill's role in all of this!

  15. Jo, my reasons for my actions are my own. Lockerbie is not the only issue in Scottish politics, and I don't desert the party I've been an activist in for 20 years on a single issue like this.

    I don't tell you what you should do, politically, so accord me the same courtesy please.

    I don't know why Kenny MacAskill and Alex Salmond are doing what they're doing, but unlike you I don't narrow down the possibilities. Bribery may be one possibility, but there's no evidence to prefer that explanation to any other.

    And by the way, the candidate I will be campaigning for is Christine Grahame, though that isn't really a dealmaker.

  16. Rolfe, I wasn't telling you what to do. You are saying they were got at. Is that not narrowing down the possibilities? I asked you to back that up. You can't. There is no evidence of it.

    I'm not fond of single issue politics either but this one is massive and watching the SNP's very central role in all of it has been horrifying. Their latest "emergency legislation" and the impact of it on the Megrahi case, and other future appeals of ordinary folk, is also pretty astonishing.

  17. I don't know what you think I mean by "got at". I mean that pressure of some sort has been applied. I have no idea what sort.

  18. Rolfe, this is getting silly. You used the phrase got at, not me.

    We know why Labour were all for going ahead with the deal. It was about trade. We know Labour blocked access to evidence for Megrahi's appeal. We know the Tories did too, in Thatcher's time, way back at the very beginning of this. We know their motives and we know they stink.

    If we condemn those Parties for dishonesty, for attempting to deny a person justice and worse then how should we view the SNP in their dealings over this matter? Are they not at least just as bad as the others or are they in fact worse? I think MacAskill's latest round of tinkering with his emergency legislation suggests the latter.

    He is proposing to set aside the SCCRC and to allow some judge to veto their findings if they rule something should go back to the appeal court. Why doesn't he just go the whole hog and disband the SCCRC altogether? What is the point of the Commission if they are no longer to be allowed to do what they were set up to independently cases that come before them and rule on whether they go back to the appeal court? That decision was theirs to make yet he wants to sideline them? He is more right wing than any Tory before him, that's for sure, where this is concerned. And he calls himself a lawyer? A "justice" secretary?

    I said earlier I believe some sort of trade off or deal has been done. But the "got at" phrase isn't one I would apply to Salmond or the SNP and certainly not without evidence to back it up.

    I would repeat I too would love to find a reason to justify what they have done here but I can find nothing. Everything about it is sinister and pretty disturbing to be honest and it has gone from bad to worse. As I said, we're not talking one elephant in the room here. There is a herd of them.

    This isn't an attempt to tell anyone how to vote. Single issues have led people to walk away from Parties before. Hordes resigned from the Labour Party after Blair invaded Iraq illegally for example. So it does happen.

  19. It seems to me that what you think I mean by "got at" is not what I actually mean by "got at". I can tell that by the fact that you continually infer that I'm trying to excuse Alex Salmond and Kenny MacAskill, when this is not my intent.

  20. Rolfe, I'll leave it now. You raised the "got at" phrase. I just asked what you meant. I know what the phrase is generally intended to convey. I just don't see it anywhere in this situation.

    Whatever we both think it can certainly be said that both Salmond and MacAskill seem determined to block the route to the truth. Which is exactly what Labour and the Tories before them have tried to do over Lockerbie along with the Scottish Judiciary. Professor Koechler can therefore add their two names to the list of those he declared to be guilty of obstructing justice in the matter of the Megrahi second appeal. Who would have thought it?