SCCRC clear the way for resurrection of Megrahi's dropped appeal

[This is the headline over a report published today on the website of the Scottish lawyers' magazine The Firm. It reads in part:]

The Scottish Criminal Cases Review Commission has confirmed in correspondence (...) that Abdelbaset Al Megrahi's dropped appeal could be picked up and heard once again by the High Court, paving the way for an unprecedented continuation of his case.

The Commission added that the case could once again be referred back to the High Court by them after the death of Megrahi. [RB: The appeal which was started by Mr Megrahi but abandoned just before his repatriation in August 2009 cannot be revived or resurrected or continued. But a NEW appeal could be heard following a fresh reference by the SCCRC.]

The confirmation comes in correspondence issued in reply to the Parliament's public petitions committee, which is presently considering a petition from the Justice For Megrahi committee, including Dr Jim Swire, Professor Robert Black QC and Iain Mckie, asking the Parliament to hold an inquiry into the debacle.

"It is competent for the Commission to refer a case to the High Court in which a previous appeal was abandoned," the letter from Chief Executive Gerard Sinclair to the committee says.

"If the Commission were to receive an application in respect of a case in which a previous appeal had been abandoned, before accepting the case for review the Commission would first consider the reasons for the abandonment of the appeal. Having considered those reasons, and any other relevant circumstances, the Commission would accept the case for review only if it was satisfied that it was in the interests of justice to do so. This is because, in terms of the Commission’s statutory test, before the Commission may refer a case to the High Court, it must believe not only that a miscarriage of justice may have occurred in the case but also that it is in the interests of justice that a reference should be made.

"It is competent for the Commission to refer to the High Court the conviction of a person who is deceased, provided the Commission believes that the grounds...are met."

However, under a provision inserted into the emergency legislation issued as a result of the Cadder fiasco, the High Court now has to factor an additional consideration into its decision making process; the "finality" of the legal proceedings.

The provision was criticised for being introduced without consultation, nor any imperative from the legal profession, any political party, the Law Commission or any judicial pressure or perceived failing of the SCCRC.

The provision, unrelated to the Cadder scenario, has been widely perceived as a covert attempt by the civil service to defeat the resurrection of Megrahi's appeal and deny the court the opportunity to further scrutinise the case. Parliamentarians told The Firm privately they had no opportunity to scrutinise the measure, and were attempting to comprehend its import whilst the debate was underway in the chamber. (...)

The SCCRC letter is part of a series of responses solicited by the petitions committee, which also includes replies from the Lord Advocate and the Scottish Government.

The response from the Lord Advocate Elish Angiolini states in error the common misapprehension that both the specially convened Zeist court and the later appeal court "subjected the evidence to rigourous examination and concluded that it was proven beyond reasonable doubt that Megrahi was responsible."

In fact the appeal court specifically did not consider whether the evidence was sufficient to secure Megrahi's conviction.

"In this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment," the appeal court stated.

"We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”

The distinction is explained more fully by trial "architect" Professor Robert Black QC, here.

The SCCRC letter can be read here, and the other responses can be viewed here.

[The response of the petitioners, dated 16 February 2011, to the letters from the Crown Office, the Scottish Government and the SCCRC is now available on the Public Petitions Committee website and can be viewed here.]