Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 76

HCA/2015/7/XM

Lord Justice Clerk

Lord Brodie

Lady Dorrian

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the Petition of

THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

Petitioners;

against

DR JIM SWIRE AND REV JOHN F MOSEY

Respondents:

for

The Opinion of the Court in terms of section 194D(3) of the Criminal Procedure (Scotland) Act 1995

Petitioners: Carmichael QC, Pirie; Scottish Criminal Cases Review Commission

Respondents: Jackson QC, CM Mitchell; Aamer Anwar & Co, Glasgow

Lord Advocate: Clancy QC AD, Gardiner; the Crown Agent

3 July 2015

Introduction
[1]        This is a petition at the instance of the Scottish Criminal Cases Review Commission in terms of section 194D(3) of the Criminal Procedure (Scotland) Act 1995.  The petitioners have received an application for a review of the conviction of a deceased person.  They are considering whether to make a reference under section 194B of the Act.  The application has been made by family members of two of the victims of the deceased.  It is unclear to the petitioners whether those individuals have a “legitimate interest”, in terms of section 303A(4)(b) of the Act, to institute an appeal against conviction should they make a reference.  Before the petitioners undertake investigations with a view to such a reference, they seek an opinion on the interpretation of that section.

[2]        Answers were lodged in the name of a firm of law agents (Messrs Aamer Anwar & Co).  On the court enquiring what interest the firm might have in the matter, counsel instructed by them intimated that he (and the agents) were actually acting for the respondents.  The instance of the answers was amended accordingly. 

Background
[3]        The application relates to the conviction of Abdelbaset Ali Mohmed Al Megrahi, who was convicted on 31 January 2001 of the murder of 259 passengers and crew on board PanAm flight PA 103 from London to New York, and 11 residents of Lockerbie on 21 December 1988.  His appeal against conviction was refused in 2002 (2002 JC 99).  The deceased applied to the petitioners for a review in 2003.  The petitioners referred the matter back to the High Court in 2007.  The deceased abandoned his appeal in 2009.  He was thereafter released from prison by the Scottish Ministers on compassionate grounds.  He died in 2012. 

[4]        The application to the petitioners has been made by relatives of only two of the passengers who died on board the flight.  It may, or may not, also proceed at the instance of some family members of the deceased, including a person said to be the deceased’s executor, but their interest is not directly the subject-matter of this petition. 

[5]        The petitioners have sought to recover papers from the former solicitors of the deceased with a view to investigating the circumstances in which the deceased abandoned his appeal in 2009.  Those circumstances may be relevant to whether it is in the interests of justice for the petitioners to make a reference (section 194C(1)(b) and (2) of the Act).   The solicitors have declined to supply them on the grounds that they are bound by professional legal privilege, which now vests in the estate of the deceased, and which can be waived only by the executor of the deceased.  That matter has caused the petitioners to seek vouching of the status of the alleged executor.  Despite repeated requests since 4 August 2014, no vouching has been provided.  The petitioners are not satisfied that any member of the deceased’s family is currently providing instructions to the law agents acting for the respondents or that there is an executor of the deceased providing instructions from Libya.  The petitioners’ position is that, if there is no person with standing to institute an appeal, there is no point in the petitioners investigating the matter further. 

Legislative provisions
[6]        The Criminal Procedure (Scotland) Act 1995 provides:

“303A.— Transfer of rights of appeal of deceased person.

(1)        Where a person convicted of an offence has died, any person may, subject to the 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.

…

(4)        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 ...

(5)        The person in whose favour an order under this section is made shall from the date of the order be afforded the same rights to carry on the appeal as the deceased enjoyed at the time of his death …”.

[7]        These provisions gave effect to the recommendation of the Sutherland Committee (Criminal Appeals and Alleged Miscarriages of Justice (1996)), that “there should be a specific statutory right of appeal in Scotland in cases of death” (para 7.18).  The Committee’s reasons (para 5.61) were as follows:

“We noted that the Criminal Appeal Act 1995 contains a specific provision covering a right of appeal in cases of death and that no such right exists in Scotland.  We can envisage circumstances in which it would be desirable for the court to be able to hear such an appeal, either in the normal way or following a referral.  Quite apart from wanting to clear someone’s name, albeit posthumously, there could well be practical considerations where there were claims on the deceased’s estate as a result of the conviction.  We therefore recommend that there should be a specific statutory right of appeal in Scotland in cases of death.  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.”

The proposal was accepted by the government and implemented by section 20 of the Crime and Punishment (Scotland) Act 1997, inserting section 303A into the 1995 Act.

Submissions
Petitioners
[8]        The petitioners divided their submissions into arguments “for” and “against” the relatives of the victims having a “legitimate interest”.  In favour of them having an interest was the fact that the list of persons mentioned in the Sutherland Committee’s report was not exhaustive.  Parliament had chosen not to enact provisions expressly denying standing to relatives of victims; contrary to the position in England (Criminal Appeal Act 1968, s 44A, inserted by the Criminal Appeal Act 1995, s 7).  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.  The legitimacy of the relatives’ interests was supported by the public interest in ensuring that the wrong person had not been convicted of a serious and exceptional crime.

[9]        Conversely, the passage from the Sutherland Committee report suggested that the Scottish provision should have the same effect as that in England.  There was a need for there to be a close connection with the deceased convicted person.  Even a family relationship may not be sufficient to give rise to a legitimate interest (Gormley v HM Advocate, HCJAC, 17 November 1999, unreported, no C180/99).  Finality in criminal proceedings favoured a restrictive interpretation of section 303A(4) (see section 194C(2); Cadder v HM Advocate 2011 SC (UKSC) 13 at paras 60-62 and 101-102).  Multiple attempts to appeal should be restricted according to that principle.

[10]      An analogy could be drawn with the rule in England that a father of a victim did not have standing to apply for judicial review of a convicted murderer’s life sentence tariff (R (Bulger) v Secretary of State for the Home Department [2001] 3 All ER 449).  There was no requirement or recommendation in any international instrument for victims to have standing to appeal against a conviction (eg Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime). 

[11]      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.  There may be relatives of victims who do not accept the guilt of a convicted person; but other relatives of victims may do so and may not wish to see a further appeal.  It was unsatisfactory for the law to accept the interest of those who wished to appeal as legitimate, when there was no mechanism for relatives of victims who took the opposing view to be heard.

Respondents
[12]      The respondents challenged the competency of the petition on grounds of prematurity.  The term “legitimate interest” referred not simply to the application, but to the grounds of referral contained therein.  Since the terms of the reference were not yet known, the scope of the term ought not to be determined until the basis for any referral was known.  There could be a number of individuals who, on learning of the terms of the reference, might consider that they had a “legitimate interest”.  The term was purposely a wide one.  In absence of an actual referral, the court ought not to rule out a class of persons as having a “legitimate interest”.

[13]      If the petition were competent, the applicants adopted the petitioners’ submissions in support of the relatives having a legitimate interest.  It was clear from the terms of the Sutherland Committee Report that the term did not exclude any interests.  Someone could have a legitimate interest in the clearing the name of someone who had been convicted of a very serious crime.  There was no reason why the definition should be restricted to relatives of the deceased convicted person.  “Finality” had no place in determining whether someone had a “legitimate interest”.  Those considerations were distinct, the former being applied when the court decided to accept a reference.  The analogy drawn from R (Bulger) (supra) was inappropriate since section 303A was specifically enacted to ensure that parties other than the Crown, the appellant and the deceased’s executors had an opportunity to become parties to criminal proceedings. 

[14]      The Crown often said that victims are at the heart of the criminal justice system.  The fact that victim statements are now taken into consideration in the sentencing process was an acknowledgment of the legitimate interest which they have.  The effective involvement and participation of victims in the criminal justice system was further illustrated by section 1 the Victim and Witnesses (Scotland) Act 2014, whereby: a victim could obtain information about what was happening in the proceedings; and, in so far as it would be appropriate to do so, a victim “should be able to participate effectively in the … proceedings.”

Crown
[15]      The standing of the victims’ relatives ought to be determined now.  Section 194D(3) provided that the petitioner could seek the court’s opinion “at any time”.  It was a point in favour of the victims’ relatives that the Scottish provisions did not follow the English equivalent and specifically exclude them.  However, the types of relationship considered by the Sutherland Committee to have a legitimate interest in posthumous appeals were “personal or business partner”, “a close relation”, or an “executor”.  Those examples involved persons who were connected to the convicted person or to his estate.  There was no suggestion that other persons, such as the relatives of the crime in question, were to be regarded as having a legitimate interest to bring a posthumous appeal.  Para 5.16 of the Report (supra) gave an indication of the mischief which section 303A was intended to remedy.  There could only be one person with a legitimate interest.  Any application could be derailed by one from an executor. 

[16]      Although the Victims and Witnesses (Scotland) Act 2014 gave victims certain rights, including (s 4) that of requiring a review of a decision not to prosecute, the statute stopped short of providing them with a right to participate in the criminal process.

Decision
[17]      The petition is competent and not premature.  Section 194D(3) of the 1995 Act provides that the petitioners may seek an opinion from the court “at any time” during which they are “considering whether to make a reference”.  That is precisely the position here.  Once the reference is made, and thus the grounds for it are known, the opinion cannot be sought.

[18]      On the other hand, any consideration of issues concerning finality and certainty, including the significance of the deceased’s decision to abandon his appeal, would be premature.  That is for debate in terms of section 194DA, should the court be determining whether to reject a reference in limine on the basis that it is not in the interests of justice (including the need for finality and certainty) that it should proceed.

[19]      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 convicted person who will have the primary right to 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.

[20]      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.  This provision was not intended to provide such a right, just because the convicted person had died. 

[21]      Secondly, given the absence of any right of a victim, or relative of a deceased victim, to participate directly in the criminal process, if Parliament had intended to reverse this central tenet of criminal proceedings, the court would have expected it to have been spelled out clearly in the statute. 

[22]      Thirdly, in recommending this mode of procedure, 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”.  The references to partners, relations and executors are clearly to partners, relatives and executors of the deceased and not those of victims.  It is a reference to those closely connected with the deceased convicted person, who might wish to clear the convicted person’s name posthumously.  The legislation encompasses 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. 

[23]      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 in his stead.  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.  It follows that the relatives of the deceased victims, including the respondents, have no legitimate interest to institute an appeal against the deceased’s conviction.