Tuesday, April 22, 2008

Appeals Court may try to limit Lockerbie Bomber's appeal to SCCRC recommendations only

During yesterday's MOJO conference in Glasgow, it apparently slipped out among guests discussing the many problems of Scotland's creaking & corrupt justice system that the Court of Appeal are trying to limit Abdelbaset Ali Mohmed Al Megrahi's appeal to exactly the terms of what the SCCRC referred his case on.

If this does transpire to be the case, it will be a first in Scots Law since the creation of the SCCRC in 1999 and will be a major setback to the Lockerbie appeal case, currently running through the Appeals Court, and noticeably suffering from intense political interference and a seemingly lack of any will on the part of some in the legal system to get to the bottom of things, which for the good of Scots justice, must be aired in public and corrected.

As was further eluded to at yesterday's MOJO conference, the test case for how appeals should proceed was the Campbell and Steele case which accepted that once the SCCRC make the referral it is up to the defence team to then lodge grounds on behalf of any appellant and indeed this is the way it has worked since SCCRC inception in 1999.

The SCCRC Rules of referral can be seen here:

Scottish Criminal Cases Review Commission : Once a case is referred

"If we refer your case to the High Court you will require to instruct a solicitor to assist you. To see a list of solicitors who undertake appeal work please click here

If your appeal is in relation to a summary conviction, after the referral has been received by the High Court, the court will fix a date for a procedural hearing. You will be notified of the date of the hearing by Justiciary Office. The purpose of the hearing is to establish whether the appeal should proceed solely in terms of the grounds raised in the Commission’s statement of reasons or whether you wish to raise any other grounds of appeal. Although the Commission has referred your case to the High Court on the specific grounds contained in its statement of reasons, you are permitted to raise other matters at appeal which have not been referred to by the Commission. If other grounds are to be raised, the High Court may require a note of appeal to be lodged detailing the other grounds. The appeal should thereafter proceed as normal.

If your appeal is in relation to a solemn conviction, your appeal will require to be presented at the High Court by you, or counsel acting on your behalf. Within eight weeks of the date of the referral you will require to lodge with the High Court a note of appeal setting out the grounds upon which you seek to challenge your conviction. Your appeal will be treated by the court as if leave to appeal has already been granted.

Any application for legal aid submitted on your behalf to the Scottish Legal Aid Board (SLAB) for the purposes of your appeal will be granted subject to you satisfying SLAB that you are financially eligible. In other words, SLAB will not scrutinise the merits of your application but will need to be given information about your present financial situation or will require to be satisfied that you received legal aid at your original trial.

the above, taken from the SCCRC website quite clearly states:

Although the Commission has referred your case to the High Court on the specific grounds contained in its statement of reasons, you are permitted to raise other matters at appeal which have not been referred to by the Commission.

It should then proceed as if Leave Has Been Granted:

Your appeal will be treated by the court as if leave to appeal has already been granted

so there we have it ... the appeals process seems to be in a state of being disturbed from the norm, for some reason in the Lockerbie case ... reasons which should be made clear to the rest of us ...

12 comments:

Anonymous said...

Not now you've wrote about it they wont

Robert Black said...

It's not the Criminal Appeal Court that is seeking to limit the grounds that can be argued in a case referred back to it by the SCCRC: it is the Lord Advocate who is seeking to persuade the Appeal Court that this should be so. At preliminary hearings on the new Lockerbie appeal the Crown indicated that it would seek a hearing before a bench of five judges to enable it to argue, as a preliminary issue, that the grounds of appeal should be limited to those accepted by the SCCRC and that the contrary decision in Campbell and Steele should be overruled. That hearing has not yet taken place.

Legal Beagle said...

Thanks for that, Robert.

It certainly looks like the Lord Advocate wants to change the law solely for the Lockerbie case, whereas all other cases recommended by appeal by the SCCRC have passed the Campbell & Steele case and been treated the same as if leave to appeal was granted and they have proceeded to appeal and lodged their own grounds.

It will be interesting to see if the Lord Advocate succeeds or fails in her motion to attempt to persuade the judges to overrule the Campbell & Steele ruling, simply over Lockerbie ...

Anonymous said...

It would seem that Hellish Ellish is not any longer fit for purpose

Anonymous said...

If Ellish Angiolini is allowed to get away with this Bearing in mind "evey" appeal to date referred by SCCRC has proceeded along the same lines, Why change it now for Megrahi.

Anonymous said...

This is tantamount to Prejudice and nothing short of attempts to preserve our corrupt system

William Beck said...

They would be as well to throw away his key.
Their tactics smell very badly of the nether region.

Crown office should be hauled over the coals for this attempt

William Beck said...

Leagle beagle

Its not just the Campbell and Steele case at stake.
Every case including and up to Raymond Gilmour have been allowed to add additional grounds once referred by the Commission.
Campbell and Steele where merely the first case i think

Anonymous said...

Steady on everyone.

Professor Black is quite correct in that the hearing has not yet taken place.

Just because the Lord Advocate thinks the court should overrule the contrary decision in Campbell & Steele doesn't mean to say the judges will agree with her and do so.

If they do however it certainly will be yet another "disgrace" for Scots Law as many point out - even from inside the 'legal establishment' which everyone likes to have a good moan against.

Iain McKie said...

It goes without saying that if these allegations are true then everyone fighting for justice in Scotland is faced with an extremely serious situation.

That the terms of an appeal should be limited to those identified by the SCCRC would create an extremely dangerous precedent and would in itself create the possibility of a miscarriage of justice.

The SCCRC is an extremely important organisation – in many ways the last hope for justice in our fallible system. However while I remain one of its biggest supporters it has been shown over the years that its decisions can be fallible and almost impossible to appeal.

This fallibility does not I believe lay in any internal or external conspiracy or inherent personal flaws in the SCCRC members or management but in the structure, decision-making processes and financing of the organisation.

When the SCCRC identify a potential miscarriage of justice they are not coming to some immutable decision but stating that given the enquiry they have made, which for the above reasons could have been limited, a miscarriage is a possibility.

What the SCCRC has done in the past, having highlighted such a possibility, is to then leave it up to the established appeal procedures to resolve the issue.

Once a potential miscarriage has been identified it makes no sense to limit the case examination to strictly defined limits. A miscarriage is a miscarriage and once the possibility has been signaled then the defence should have the freedom to bring forward related issues that the SCCRC might have failed to identify. If anyone abuses this procedure then the Appeal Court has the power to deal with them.

In looking at this latest move by the Lord Advocate it is interesting to note that a short time ago she was content to put the responsibility for taking out a Public Interest Immunity Certificate to prevent documents being released onto the Foreign Secretary David Miliband. Now she seeks to limit the appeal terms of reference.

Consistent?

I don’t think so and the stuff of which conspiracy theories are made.

Anonymous said...

Obviously the correct thing would be for the judges to stop the Lord Advocate in her tracks and if that happens, the Lord Advocate should either be sacked or resign.

Anonymous said...

It also slipped out that there was quiet discontentment within the Legal Establishment that the length of time it is taking for a decision from "Avizandum" in the Nat Fraser case is a cause for concern.
The Legal Establishment are very concerned with Lawyers voicing serious concern over the time this is taking in this case.
Nat Fraser was out on Interim Liberation awaiting the appeal against his conviction, after his appeal went to Avizandum he was detained again, This was last year one Lawyer said and is bordering on ridiculous