Thursday, 15 October 2015

One of Megrahi's few judicial victories

[On this date in 2008 Abdelbaset Megrahi won a significant legal victory in the High Court of Justiciary. What follows is taken from my report on this blog:]

The High Court has totally rejected the Crown's contention that, as a matter of law, the appellant was entitled to argue only those grounds of appeal that formed the basis of the Scottish Criminal Cases Review Commission's decision to refer Abdelbaset Megrahi's case back to the court. It was always accepted by the appellant's legal team that the court had a discretion to reject any individual proposed ground of appeal (eg on the basis that it appeared on the face of it to be unarguable). But this was not good enough for the Crown, who insisted that it was a matter of law that the only grounds that the appellant was entitled to advance and entitled to have heard were those accepted by the SCCRC. It was in order to achieve such a ruling (which would have been contrary to decisions of the court in earlier cases) that a bench of five judges had to be convened. The Crown's argument has been unanimously (and, with respect, correctly) rejected by all five judges.

The Herald reports Tony Kelly, Mr Megrahi's solicitor, as saying:

"It is a complete victory for the appellant's position before the court and a complete rejection of the Crown's argument.

"The Crown employed lots of resources to try to restrict the court and they have been stopped in their tracks.

"It is an important victory for Mr Al Megrahi."

The following is an official summary of the court's Opinion. The full 83-paragraph Opinion can be read here.


The Scottish Criminal Cases Review Commission has referred to this court the case of Abdelbaset Ali Mohamed Al Megrahi. The reference document runs to 790 pages. In it detailed consideration is given to a wide range of representations made on behalf of the applicant (the present appellant), as well as to the Commission's own investigations. Some of these representations found favour with the Commission; others did not. In making the reference the Commission identified five reasons which led it to believe that a miscarriage of justice may have occurred. These reasons are set out in Chapters 21 to 25 inclusive of the reference document.

The appellant has, within the time limit specified by the Act of Adjournal, lodged grounds of appeal. These run to 317 pages. They include (sometimes reformulated) matters considered by the Commission but not included in its reasons for making the reference; they also include matters not raised with or discussed by the Commission.

The Crown contends that the appellant can not, as of right, require the court to entertain the full grounds of appeal lodged by him. While it is accepted that the court may, in the exercise of its discretion, entertain any of the grounds tabled, it is contended that the appellant is not entitled to have entertained grounds going beyond the reasons stated by the Commission in their reference. The debate which we heard was concerned with discussion of that contention.

The court has heard wide-ranging submissions from the Crown and from the appellant's counsel. The issue is one of statutory construction - in particular, the meaning and effect of section 194B(1) of the Criminal Procedure (Scotland) Act 1995, as amended by the Crime and Punishment (Scotland) Act 1997. The arguments advanced by the parties and the court's discussion of them are fully set out in the Opinion of the Court which is now available. The court's conclusion is that, for the reasons given, it rejects the statutory construction urged by the Advocate depute and holds that the appellant is entitled to have his stated grounds of appeal decided by the court on their respective merits. The mechanisms which the court will adopt for the purpose of making such an adjudication will require to be considered in due course. Whether it is desirable, having regard to among other things the use of judicial resources, that a reference appellant should have unrestricted scope in what he lays before the court for adjudication is a matter for Parliament; but this court must apply the statute as presently framed.

[Regrettably, the law on this matter has now been altered by the Scottish Parliament. In any new appeal allowed by the Scottish Criminal Cases Review Commission (eg in an application by Megrahi’s family) the appeal court would be limited to the specific grounds of referral allowed by the SCCRC unless the court was prepared, in the interests of justice, to permit additional grounds of appeal to be added: Criminal Procedure (Scotland) Act 1995, section 194(D) (4A) and (4B), as inserted by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss 83, 206(1).]

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