Appeal court explains why Lockerbie relatives cannot seek conviction review

Victims, or relatives of deceased victims, were not intended to have a right to apply to the Scottish Criminal Cases Review Commission for a review of the conviction of the person accused of the crime committed against them, the Criminal Appeal Court has ruled.

The court has published its opinion explaining why it refused the application by Dr Jim Swire and Rev John Mosey, relatives of victims of the Lockerbie bombing who were seeking to pursue a review of the conviction of Abdelbaset al-Megrahi, the man convicted of the murder of the 270 victims.

The SCCRC presented a petition to the court for a ruling on whether the applicants had a "legitimate interest" in terms of s 303A(4)(b) of the Criminal Procedure (Scotland) Act 1995 to institute an appeal against conviction should the petitioners make a reference to the appeal court.

Lord Justice Clerk Carloway, sitting with Lord Brodie and Lady Dorrian, rejected an argument for the applicants that the petition was premature because "legitimate interest" referred also to the grounds of referral, and these were not yet known. The Act provided that the SCCRC might seek an opinion from the court “at any time” during which they are “considering whether to make a reference”, and, Lord Carloway ruled, "That is precisely the position here. Once the reference is made, and thus the grounds for it are known, the opinion cannot be sought."

On the other hand, any consideration of issues concerning “finality and certainty”, including the significance of the deceased’s decision to abandon his appeal, would be premature, and should be considered if the court had to decide whether it was in the interests of justice for the reference to proceed.

There were three reasons, Lord Carloway continued, why the legislation did not apply to relatives of victims.

First, "on a plain reading of the statute", the person with right to apply for authority to instruct or continue an appeal was the executor as personal representative of the deceased. "The Scottish criminal justice system does not, at present, allow victims or relatives of victims to be direct participants in criminal proceedings. This provision was not intended to provide such a right, just because the convicted person had died."

Secondly, given the absence of such a general right, if Parliament had intended to reverse "this central tenet of criminal proceedings", it would have been spelled out clearly in the statute.

Thirdly, in recommending this procedure, the Sutherland Committee referred to persons who could demonstrate a “good reason for pursuing an appeal, for example a personal or business partner, close relation or executor”. "It is a reference to those closely connected with the deceased convicted person, who might wish to clear the convicted person’s name posthumously", Lord Carloway said.

He concluded: "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 in his stead. 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. It follows that the relatives of the deceased victims, including the respondents, have no legitimate interest to institute an appeal against the deceased’s conviction."

Click here to view the opinion.

“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.”

Lord Carloway added: “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 in his stead. 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. It follows that the relatives of the deceased victims, including the respondents, have no legitimate interest to institute an appeal against the deceased’s conviction.”