A new SCCRC application: problems and pitfalls

[In the light of recent speculation that a further application may be made to the Scottish Criminal Cases Review Commission with a view to securing a third appeal to the High Court of Justiciary against the conviction of Abdelbaset Megrahi, I set out the legislative provisions that are in force, or are likely to be in force when any such application comes to be considered. 

The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (the Cadder Act) currently provides as follows:]

7 References by the Scottish Criminal Cases Review Commission

(1) The 1995 Act [the Criminal Procedure (Scotland Act 1995] is amended as follows.

(2) In section 194B (SCCRC's power to refer cases to the High Court), in subsection (1), before “the case” insert “ , subject to section 194DA of this Act, ”.

(3) In section 194C (grounds for reference)—

(a) the existing words become subsection (1), and

(b) after that subsection, insert—

“(2) 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.”.

(4) After section 194D, insert—

“194DA High Court's power to reject a reference made by the Commission

(1) 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 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.

(3) On rejecting a reference under this section, the High Court may make such order as it considers necessary or appropriate.”.

[In other words the SCCRC, in determining whether it is in the interests of justice to refer a conviction to the High Court, must have regard to the need for finality and certainty in the determination of criminal proceedings. Likewise, even if the SCCRC refers a case, the High Court itself may refuse to hear the appeal as not being in the interests of justice, having regard to the need for finality and certainty in the determination of criminal proceedings.

However, the Criminal Justice (Scotland) Bill currently before the Scottish Parliament and due to complete Stage 1 of its parliamentary progress on 28 February 2014, will make the following changes to the law:]

82 References by SCCRC

(1) The 1995 Act is amended as follows.

(2) In section 194B—

(a) in subsection (1), for “section 194DA of this Act” there is substituted “subsection (1A)”.

(b) after subsection (1) there is inserted—

“(1A) Where the Commission has referred a case to the High Court under subsection (1), the High Court may not quash a conviction or sentence unless the Court considers that it is in the interests of justice to do so.

(1B) In determining whether or not it is in the interests of justice that any case is disposed of as mentioned in subsection (1A), the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.”.

(3) The title of section 194B becomes “References by the Commission”.

(4) Section 194DA is repealed.

[In other words, if this Bill is enacted the SCCRC, in determining whether it is in the interests of justice to refer a conviction to the High Court, must still have regard to the need for finality and certainty in the determination of criminal proceedings.  But if the Commission makes a reference, the High Court will no longer have the power to refuse to hear the appeal on “finality and certainty” grounds; though, once the appeal has been heard, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings before deciding that it is in the interests of justice to allow the appeal and quash the conviction.

There is, of course, a further problem, even if the SCCRC referred the conviction back to the High Court.  Abdelbaset Megrahi is dead. Who would conduct any posthumous appeal on his behalf?  The relevant statutory provision is section 303A of the 1995 Act:]

(1) Where a person convicted of an offence has died, any person may, subject to the provisions of this section, apply to the High Court for an order authorising him to institute or continue any appeal which could have been or has been instituted by the deceased.

(2) An application for an order under this section may be lodged with the Clerk of Justiciary within three months of the deceased’s death or at such later time as the Court may, on cause shown, allow. (...)

(4) Where an application is made for an order under this section and the applicant—

(a) is an executor of the deceased; or

(b) otherwise appears to the Court to have a legitimate interest,

the Court shall make an order authorising the applicant to institute or continue any appeal which could have been instituted or continued by the deceased; and, subject to the provisions of this section, any such order may include such ancillary or supplementary provision as the Court thinks fit.

(5) The person in whose favour an order under this section is made shall from the date of the order be afforded the same rights to carry on the appeal as the deceased enjoyed at the time of his death and, in particular, where any time limit had begun to run against the deceased the person in whose favour an order has been made shall have the benefit of only that portion of the time limit which remained unexpired at the time of the death.

(6) In this section “appeal” includes any sort of application, whether at common law or under statute, for the review of any conviction, penalty or other order made in respect of the deceased in any criminal proceedings whatsoever.

[If a successful application to the SCCRC were made eg by a relative of a Lockerbie victim, would the High Court regard such a person as having “a legitimate interest”? It is fervently to be hoped that the court would not refuse to recognise someone like Dr Jim Swire as having a legitimate interest. But there can be no guarantee of this.  These obstacles go some way towards explaining why the institution by the Scottish Government of an independent inquiry into the Lockerbie investigation and prosecution and the conviction of Megrahi has been and remains my preferred option.]