Possibility of Megrahi appeal

 

 

Matt Berkley

28 August 2009

 

 

266 Banbury Road, Oxford, OX2 7DL England  

+44 (0)7868 397699   matt@mattberkley.com   www.mattberkley.com

 

 

 

I am one of the Pan Am 103 relatives.   A possibility has occurred to me on the al-Megrahi case.  

 

In law, the Scottish Criminal Cases Review Commission has wide powers.  

 

I see nothing in the legislation barring the SCCRC from referring a case to the High Court for a second time. 

 

It could be that with or without any significant work, they might decide, after considering the circumstances in which the appeal was abandoned and the nature of their previous grounds for referral, that the case currently meets their criteria.

 

The criteria are that:

a) there is the possibility of a miscarriage of justice, and

b) it would be in the interests of justice for the Court to hear the case.  

 

If the Commission does not refer the case in the short term, it could do so at a later date.

 

The Commission may refer a case after the death of the convict.   

 

It may refer whether or not an application has been made by or on behalf of the convict. 

 

No prisoner before Mr al-Megrahi has abandoned an appeal after referral by the Commission.   

That fact may be related to this:

 

Most people who appeal against their conviction via the Commission, as he did, are found by the Court to have suffered a miscarriage of justice.  

 

 

 


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Notes


1. Some short extracts from the legislation are:

 

“The Commission … may … at any time, and whether or not an appeal …  has previously been heard … refer the whole case to the High Court”

“… person” includes a person who is deceased.”

“A reference … may be made … whether or not an application has been made by or on behalf of the person to whom it relates.”
“The arrangements for the procedure of the Commission … shall be such as the Commission may determine.”

“In considering whether to make a reference the Commission shall have regard to … any other matters which appear to the Commission to be relevant.”

“The Commission may take any steps which they consider appropriate for assisting them in the exercise of any of their functions”.

 

Longer passages are in the Appendix below.

 

 

2. Summary statistics are on the Commission’s website at http://www.sccrc.org.uk/casestatistics.aspx . 

A report by university researchers with further statistical analysis is at http://www.sccrc.org.uk/ViewFile.aspx?id=393 .

 

 

 

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Appendix:  Legislation

 

 

The SCCRC states, “The Commission was established by Section 194A of the Criminal Procedure (Scotland) Act 1995 (as amended by Section 25 of the Crime and Punishment (Scotland) Act 1997)”.
( http://www.sccrc.org.uk/legislation.aspx )

The text of the 1997 Act is available at: 
http://www.opsi.gov.uk/acts/acts1997/ukpga_19970048_en_4#pt2-pb2-l1g25 .
These extracts are from Part XA.



194B

(1) The Commission … may … at any time, and whether or not an appeal …  has previously been heard and determined by the High Court, refer the whole case to the High Court and the case shall be heard and determined, subject to any directions the High Court may make ….

(4) … “person” includes a person who is deceased.



194D

(1) A reference … may be made … whether or not an application has been made by or on behalf of the person to whom it relates.

(2) In considering whether to make a reference the Commission shall have regard to—

(a) any application or representations made to the Commission by or on behalf of the person to whom it relates;

(b) any other representations made to the Commission in relation to it: and

(c) any other matters which appear to the Commission to be relevant….

(5) In every case in which — (a) an application has been made … but (b) the Commission decide not to make a reference …they shall give a statement of the reasons for their decision to the person who made the application.….

 
194F   Further powers

The Commission may take any steps which they consider appropriate for assisting them in the exercise of any of their functions and may, in particular—

(a) themselves undertake inquiries and obtain statements, opinions or reports; or

(b) request the Lord Advocate or any other person to undertake such inquiries or obtain such statements, opinions and reports. ….

 
194I   Power to obtain documents etc

(1) Where the Commission believe that a person or a public body has possession or control of a document or other material which may assist them in the exercise of any of their functions, they may apply to the High Court for an order requiring that person or body—

(a) to produce the document or other material to the Commission or to give the Commission access to it….

 

SCHEDULE 9A The Commission: Further Provisions
…6 (1) The arrangements for the procedure of the Commission … shall be such as the Commission may determine.

 

 

This text published on mattberkley.com on 28 August 2009