[What follows is the text of the statement made by the Lord Justice Clerk, Lord Carloway, when the High Court today ruled that victims’ relatives are not entitled to pursue an appeal on behalf of a deceased convict:]
“The court will furnish a full written Opinion to the Scottish Criminal Cases Review Commission in terms of the statute (section 194(d)(3) of the Criminal Procedure (Scotland) Act 1995) in early course. At this stage, it will give brief oral reasons for its decision.
The application raises a sharp point of statutory interpretation. Section 303A(1) of the 1995 Act permits ‘any person’ to apply to the court for an order authorising him to institute or continue any appeal which could have been authorised by a convicted person who is deceased. Subsection 303A(4), however, assumes that it will be the executor of the deceased who will do so. It continues by referring also to an applicant who ‘otherwise appears to the court to have a legitimate interest’. This application on behalf of the Commission raises a general question of the scope of that phrase. The more particular issue is whether it extends to the relatives of deceased victims of a deceased convicted person and, presumably, in other cases, to the victims themselves.
The court does not consider that this statutory provision applies to the relatives of the deceased’s victims in this case.
First, on a plain reading of the statute, the person who has a right to make an application for authority to instruct or continue an appeal is the executor, who is the personal representative of the deceased. This is demonstrated by subsection (5), whereby the person authorised to institute or continue the appeal steps into the position of the deceased in the appeal. He does not represent a separate interest. The Scottish criminal justice system does not, at present, allow victims or relatives of victims to be direct participants in criminal proceedings. The court does not consider that this provision was intended to provide such a right, just because the convicted person is deceased.
Secondly, to decide otherwise would reverse a central element in criminal proceedings in this jurisdiction. If that were what was intended, the court would have expected it to have been spelled out clearly in the statute.
Thirdly, in recommending this mode of procedure, the Sutherland Committee referred to persons who could demonstrate ‘good reason for pursuing an appeal, for example a personal or business partner, close relation or executor’; that meaning a close relative of the deceased, who might wish to clear the convicted person’s name posthumously and to persons with, for example, an interest in the estate of the deceased who may be affected financially by the conviction. The discussion by the Sutherland Committee provides a helpful aid to construction, were that required.
What the statute is intended to provide is an avenue whereby an executor as of right, and others in a similar relationship with the deceased, can continue or institute appeal proceedings. It is not designed to give relatives of victims a right to pursue an appeal for their own, or the public, interest in securing that miscarriages of justice should not occur.”
Read what the judges have said and find the person who has the right to be an executor to continue or institute appeal proceedings. Somebody has wasted valuable time going up the garden path by not reading the law. The judges have done everything but tell the the lawyers how to do it by stating that the Sutherland Committee will give that information and guidance.
ReplyDeleteLinda, if you had read earlier posts on this blog you would know that the Megrahi family, including the son who is the equivalent of an executor under the Sharia law of succession applicable in Libya, made the application to the SCCRC jointly with the relatives of the victims.
ReplyDeleteWhenever an authority gives an utterly predictable reply there are always people who will read that reply and believe, that if matters had just been presented to the authority in another way then the answer might have been different.
ReplyDeleteDoes the family of a murder convicted, with the SCCRC statement in hand, have the right to demand a retrial?
That is the question. My answer is "yes, of course".
Period. It is that simple. No ifs, no buts.
I will accept an expiration period. That could never apply for this case, though.
Endless pages of bla-bla can always be used as an excuse for any conclusion wanted.
Anyone having seen the trial, the re-trial of Megrahi and having followed the case, and still expecting another reply in above matters, is a blissful optimist.
But I fully acknowledge, that there are important results along the way that could only have been achieved by the underlying blissful optimism. So bless them.
I can actually sympathise with the opinion of the judges on this point. What really rankles is the constant insistence by the Crown Office that a new appeal by the relatives was the proper way to proceed. Any attempt to pursue another route, or even to mention the issue in public, was met by that stinging retort. Apply for an appeal, it's the right way to pursue this. Or shut up about it.
ReplyDeleteYou have to wonder if they have strategy meetings. Well we tell them to apply for another appeal, and stonewall everything else, and if they eventually spend a lot of time and money doing that, the High Court can rule that they don't have a legitimate interest. That should kick the ball another five years down the line.
> I can actually sympathise with the opinion of the judges on this point.
ReplyDeleteSurprise!
> What really rankles is the constant insistence by the Crown Office...
Agree, but would you then say: "Let us blame the murderer, not the judge who found some interpretation of some law that allowed him to go." ?
Can anyone explain if I got this right:
ReplyDeleteA. If a father is convicted for murder, and even if SCCRC says 'possible miscarriage of justice', the son or daughter will be denied a retrial.
B. "But 'persons who could demonstrate ‘good reason for pursuing an appeal, for example a personal or business partner, close relation or executor’ " they may be allowed a retrial.
C. Am I right in assuming that findings of the SCCRC is not even mentioned?
- - -
If 3 times "Right" where is the sense? Where would it say that a close relative could not be the executor as well. Will we have to look at "Mr. A vs Mr. B, 1855" to get an answer to that question?
- Our father was convicted for mass murder in a high-profile case, we have SCCRC saying 'possible miscarriage of justice', we have critical new evidence (even though it would not even be needed). Can we, the children, now get our fathers name cleared?
- Let us see ....
...statutory interpretation. ... any person ...Subsection 303A(4), however ... executor ... ‘otherwise appears to the court to have a legitimate interest’.
... whether it extends to the relatives of deceased victims of a deceased convicted person and, presumably, in other cases, to the victims themselves.
...the person who has a right to ... is the executor, who is the personal representative of the deceased.
... subsection (5), whereby the person authorised to institute or continue the appeal ...
... present, allow victims or relatives of victims to be direct participants ....
... to decide otherwise would reverse a central element in criminal proceedings in this jurisdiction...
... that were what was intended, the court would have expected it to have been spelled out clearly in the statute...
[of course it would, like all other assumptions that do not appear obvious to the interpretors]
... the Sutherland Committee referred to persons ... a personal or business partner, close relation or executor’ ...
... The discussion by the Sutherland Committee provides a helpful aid to construction, were that required. ...
... not designed to give relatives of victims a right to pursue an appeal for their own, or the public, interest in securing that miscarriages of justice should not occur...
... awww, so sorry! As you see it clearly - from an our expert point of view - says "No!". Oh, and do recall: The only appropriate forum for determining guilt or innocence is a court of law.
Before saying "Absurd!" - are we that far away? There were such absurd elements in the first trial already.
ReplyDeleteCould it happen? A legalese twisting the family of the wrongly convicted into being 'victims of the crime', for the purpose of denying them a trial?
Long discussions, picking the conclusions needed to convict Megrahi, in a forest of uncertainties and evidence to the contrary.
"We are ... aware that there is a danger that by selecting parts of the evidence which seem to fit together and ignoring parts which might not fit, it is possible to read into a mass of conflicting evidence a pattern or conclusion which is not really justified."
"Are you listening to yourself?", asks Kerr in "Adequately explained by stupidity".
The retrial, another absurdity. Discussions of evidence which would appear simple gets lost in a flood of word.
And after 200 pages:
"As we have said before, it is for the trial court to decide what inferences to draw from evidence which it accepts."
...
"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."
Wildly differing from any form of justice, but the judges are unaware of it, protected by years of legal study, where words and arguments have become a mere intellectual game.
Where inconclusive matters have become something that can be talked into a conclusion and enough talk can turn things in any direction.
So, we have seen the application of the 'least absurdity' - just enough to reach the wanted outcome.
I don't think there is an upper limit of that size.
That's something you see a lot in the written judgement. The judges will say that they gave due consideration to [eminently reasonable proposition or conclusion] but rejected it in favour of [batshit lunatic interpretation that supported Megrahi's guilt]. This made the job of the appeal judges very easy. Every time the (wrongly conceived) appeal said "the judges failed to give due weight to [eminently reasonable proposition or conclusion]" the appeal judges just pointed to the judgement and said, yes they did, it says so right there.
ReplyDeleteYou'd almost think the judgement was written in order to shrug off the flawed appeal grounds in advance.
Some questions, which maybe Robert can answer:
ReplyDeleteThe SCCRC seems to be concerned that after a long and expensive investigation it may refer the case only to find that no appeal is possible. This is to assume that after what may be a considerable time the factors which currently prevent Khaled al Megrahi from jumping through all the necessary hoops will still prevail. Does the SCCRC have the right to refuse to hear the application on these grounds, and is there an avenue of appeal to challenge that decision? What, if anything, will satisfy the SCCRC that Mr Anwar is indeed instructed by the Megrahi family?
The SCCRC is entitled to ask to be satisfied that the Megrahi family (particularly Khaled as the equivalent of Baset's executor) are active participants in the application. I'm hopeful that the SCCRC will eventually be convinced that the Megrahi family genuinely are applicants. I have seen copies of signed documents (in Arabic and in English) which would convince me that they are, and that they have formally instructed Aamer Anwar to represent them. However, it looks as if the SCCRC insists on original documents and on personal contact with the family, especially Khaled. Moves are afoot to resolve these difficulties but conditions in Libya (and next door in Tunisia) don't make contact easy. If the SCCRC ultimately refuses to accept that the Megrahi family are applicants, then a judicial review of that decision would be a possibility.
DeletePerhaps we should enlist some younger people into Justice for Megrahi, and perhaps some offspring of Pan Am 103 victims who were themselves children at the time of the disaster. This may be setting itself up to rival Jarndyce v. Jarndyce.
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