APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
OPINION OF THE COURT
THE LORD JUSTICE CLERK
APPLICATION FOR TRANSFER OF RIGHTS OF APPEAL OF DECEASED PERSON UNDER SECTION 303A OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
DAVID GORMLEY and ELIZABETH COWE CRAWFORD or GORMLEY
HER MAJESTY'S ADVOCATE
Applicants: A Muir; McKay & Norwell, W.S.
Respondent: C MacNeill; Crown Agent
17 November 1999
The applicants are the parents of Harry Edward Watson Gormley who died on 31 August 1999 intestate leaving no issue and unmarried. On 15 March 1999 he was convicted in the High Court at Edinburgh of the crime of murder and was sentenced to life imprisonment. He appealed against that conviction in terms of the usual appeal procedure. That appeal was granted leave in July 1999. Accordingly the situation at the time of his death was that there was a subsisting appeal which was to proceed in due course to be heard by this Court. This application is made under section 303A of the Criminal Procedure (Scotland) Act 1995. That section was introduced by the Crime and Punishment (Scotland) Act 1997. It provides by sub-section (1) that where a person convicted of an offence has died, any person may, subject to provisions of this section, apply to the High Court for an order authorising him to institute or continue any appeal which could have been or has been instituted by the deceased. For present purposes we are particularly concerned with sub-section (4) of that section which states that where an application is made for an order under this section and the applicant,
"(a) is an executor of the deceased; or
(b) otherwise appears to the Court to have a legitimate interest,
the Court shall make an order authorising the applicant to institute or continue any appeal which could have been instituted or continued by the deceased...".
In the present case the application is made in reliance on paragraph (b). The only question for this Court is whether the applicants, the parents of the deceased, are to be regarded as having "a legitimate interest" in the matter. If they do, then it follows that the Court is required to make the order authorising the applicants to continue the appeal.
Mr Muir, who appeared today on behalf of the applicants, provided significant assistance to the Court by describing to us the background to this provision. He took us first to the English legislation under the Criminal Appeals Act 1968 which originally had made no provision for an appeal to be continued where an appellant had died. Following a number of cases including those of R. v McGuire & Others  1 QB 936 and R. v Kearley (No 2),  2 AC 414, an amendment was made to the 1968 Act by section 7(1) of the Criminal Appeal Act 1995. This inserted section 44A into the 1968 Act. That provision as regards entitlement is not expressed in the same terms as section 303A of the 1995 Act in Scotland. However, it is plain that the use of the expression "interest" in section 44A was intended to include a family relationship with the dead person.
In Scotland this matter was considered by the Sutherland Committee. (Report of the Committee on Appeals Criteria and Alleged Miscarriage of Justice Cmnd 3245, 1996) . Paragraph 5.61 of their report contained a recommendation by the Committee that there should be a specific statutory right of appeal in Scotland in cases of death. They stated: "Again, this should be exercised by someone who could demonstrate to the Court good reason for pursuing such an appeal, for example, a personal or business partner, close relation or executor".
Mr Muir informed us that the only reported case in England was the decision in R v Whelan  Crim. LR 659. He referred us to certain parts of the opinion of the Lord Bingham of Cornhill, LCJ in which he described the background to the provision in England and its application.
We are entirely satisfied that in this case it should be recognised that the applicants have a legitimate interest. That interest can be founded, and is founded in this case, on a family relationship to the deceased where his appeal was proceedings after leave had been granted. There may be cases in which despite a family relationship there is not sufficient to demonstrate a legitimate interest, but in the present case we are entirely satisfied that this is an appropriate application. The appellants are endeavouring the clear their son's name in respect of a conviction of a very serious crime which they consider should be quashed. In these circumstances we will therefore give effect to the power under section 303A(4)(b) and make an order authorising the applicants to continue the appeal.