SCCRC, Lord Advocate and Others

Statement of the Court delivered by the Lord Justice Clerk Lord Carloway, in refusing an application by relatives of victims of the Lockerbie disaster for an order authorising them to institute or continue any appeal which could have been authorised by the now deceased person who was convicted of the bombing, Abdelbaset Ali Mohmed al-Megrahi.

3 July 2015

“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.”

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