Petition of the Scottish Criminal Cases Review Commission v. Dr Jim Swire and Rev John F. Mosey [2015] HCJAC 76

Petition under section 194D(3) of the Criminal Procedure (Scotland) Act 1995:- The respondents, family members of two of the victims of the deceased, Abdelbaset Ali Mohamed Al Megrahi, made an application to the petitioners for a review of the conviction of the deceased. The petitioners are currently considering whether to make a reference under section 194B of the 1995 Act. Here the petitioners sought an opinion on the interpretation of section 303A(4)(b) of the 1995 Act as to whether those individuals have a “legitimate interest”. The petitioners have been unable to ascertain the status of the alleged executor and are not satisfied that any of the deceased’s family is currently instructing the agents acting for the respondents or that there is an executor of the deceased providing instructions. As such the petitioners consider that if there is no person entitled to be represented in an appeal they do not wish to waste resources investigating the issues any further. Section 303A of the 1995 Act as implemented by section 20 of the Crime and Punishment (Scotland) Act 1997 following the recommendation of the Sutherland Committee in 1996 gave a specific statutory right of appeal in Scotland in cases of death in certain limited circumstances. On behalf of the petitioners it was submitted that there were competing arguments for the relatives of the victims having a legitimate interest. It was submitted that there was no reason in principle why an interest in clearing someone’s name should be classified as illegitimate because it was pursued by the victims’ relatives and there were public interest considerations in ensuring that the wrong person had not been convicted of a serious crime. It was also submitted, however, that it was not legitimate for the relatives of victims to pursue an appeal against conviction when the person who was convicted had abandoned an appeal. On behalf of the respondents it was submitted that the petition was incompetent on the grounds of it being premature. It was submitted that the term “legitimate interest” referred to the grounds of referral and not simply the application and given the grounds of referral were not known the individuals who may consider they have a “legitimate interest” could not be determined. On behalf of the Crown it was submitted that the standing of the victims’ relatives ought to be determined now. It was further submitted that the types of relationship considered by the Sutherland Committee were “personal or business partners”, “a close relation”, or an “executor” and it was not suggested that other persons, like the relatives of the crime, were to be regarded as having a legitimate interest to bring a posthumous appeal. It was further submitted on behalf of the Crown that whilst the Victims and Witnesses (Scotland) Act 2014 gave victims certain rights, including that of requiring a review of a decision not to prosecute, the statute did not provide them with a right to participate in the criminal process. Here the court considered that in terms of section 194D(3) of the 1995 Act which provides that the petitioners may seek an opinion from the court at any time during which they are considering whether to make a reference the petition was competent. The court considered the statutory interpretation of section 303A which gives an executor, and others in a similar relationship with a deceased the right to continue or commence appeal proceedings. However, relatives of the deceased’s victims, including the respondents, have no legitimate interest in relation to an appeal against the deceased’s conviction:- (1) 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; (2) there is an absence of any right of a victim, or relative of a deceased victim, to participate directly in the criminal process; (3) 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” and those are persons connected to the deceased and not those connected to the victims of the deceased.