Relatives of Lockerbie victims do not have ‘legitimate interest’ in pursuing appeal - Criminal Appeal Court publishes opinion

An application to the Scottish Criminal Cases Review Commission (SCCRC) was made by family members of two of the passengers who died on board Pan Am flight 103 on 21 December 1988, but the judges ruled that they did not have a “legitimate interest” in challenging the conviction.

The petitioners, the SCCRC, had received an application from Dr Jim Swire andRev John Mosey to review the conviction of Abdelbaset al-Megrahi, who died in 2011 after being released from prison by the Scottish Ministers on compassionate grounds in 2009 when he abandoned his appeal against his 2001 conviction.

The Lord Justice Clerk, Lord Carloway , sitting with Lord Brodie andLady Dorrian, heard that the SCCRC was considering whether to make a reference to the High Court under section 194B of the Criminal Procedure (Scotland) Act 1995, but it was “unclear” to the petitioners whether the relatives of the victims of the deceased had a “legitimate interest”, in terms of section 303A(4)(b) of the Act, to institute an appeal against conviction.

They sought an opinion on the interpretation of the legislative provisions, which 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”.

However, the respondents challenged the competency of the petition on grounds of “prematurity”.

It was argued that 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.

It was submitted that there could be a number of individuals who, on learning of the terms of the reference, might consider that they had a “legitimate interest” and that absence of an actual referral, the court “ought not to rule out” a class of persons as having a “legitimate interest”.

If the petition was considered to be competent, the applicants argued that parliament had chosen not to enact provisions expressly denying standing to relatives of victims, contrary to the position in England.

There was “no reason why the definition should be restricted to relatives of the deceased convicted person”, it was submitted.

The applicants also argued that 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”.

But the Crown argued that 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”.

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, it was submitted.

The appeal judges held that the petition was “competent” and “not premature”.

Lord Carloway said: “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.”

However, the judges added, any consideration of issues concerning “finality and certainty”, including the significance of the deceased’s decision to abandon his appeal, would be “premature”.

On the key issue of “legitimate interest”, the court observed that the application raised a “sharp point of statutory interpretation” and the judges concluded that the legislation did not apply to relatives of victims.

Delivering the opinion of the court, the Lord Justice Clerk said: “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.”

Lord Carloway added: “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.”