Abdelbaset Al Megrahi V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Eassie,Lord Wheatley,Lord Kingarth,Lord Justice General |
| Judgment Date | 14 March 2002 |
| Neutral Citation | [2008] HCJAC 58 |
| Published date | 14 October 2008 |
| Date | 15 October 2008 |
| Court | High Court of Justiciary |
| Docket Number | XC524/07 |
SUMMARY OF THE
OPINION OF THE COURT
in appeal by
ABDELBASET ALI MOHMED AL MEGRAHI
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
(SCOPE OF THE APPEAL)
__________
The Scottish Criminal Cases Review Commission has referred to this court the case of Abdelbaset Ali Mohamed Al Megrahi. The reference document runs to 790 pages. In it detailed consideration is given to a wide range of representations made on behalf of the applicant (the present appellant), as well as to the Commission's own investigations. Some of these representations found favour with the Commission; others did not. In making the reference the Commission identified five reasons which led it to believe that a miscarriage of justice may have occurred. These reasons are set out in Chapters 21 to 25 inclusive of the reference document.
The appellant has, within the time limit specified by the Act of Adjournal, lodged grounds of appeal. These run to 317 pages. They include (sometimes reformulated) matters considered by the Commission but not included in its reasons for making the reference; they also include matters not raised with or discussed by the Commission.
The Crown contends that the appellant can not, as of right, require the court to entertain the full grounds of appeal lodged by him. While it is accepted that the court may, in the exercise of its discretion, entertain any of the grounds tabled, it is contended that the appellant is not entitled to have entertained grounds going beyond the reasons stated by the Commission in their reference. The debate which we heard was concerned with discussion of that contention.
The court has heard wide-ranging submissions from the Crown and from the appellant's counsel. The issue is one of statutory construction - in particular, the meaning and effect of section 194B(1) of the Criminal Procedure (Scotland) Act 1995, as amended by the Crime and Punishment (Scotland) Act 1997. The arguments advanced by the parties and the court's discussion of them are fully set out in the Opinion of the Court which is now available. The court's conclusion is that, for the reasons given, it rejects the statutory construction urged by the Advocate depute and holds that the appellant is entitled to have his stated grounds of appeal decided by the court on their respective merits. The mechanisms which the court will adopt for the purpose of making such an adjudication will require to be considered in due course. Whether it is desirable, having regard to among other things the use of judicial resources, that a reference appellant should have unrestricted scope in what he lays before the court for adjudication is a matter for Parliament; but this court must apply the statute as presently framed.
The court will put the case out for a procedural hearing at which it will consider parties' proposals for the management of this complex appeal.
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Kingarth Lord EassieLord Wheatley Lady Paton | [2008] HCJAC 58 Appeal No: XC524/07 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by ABDELBASET ALI MOHMED AL MEGRAHI Appellant; against HER MAJESTY'S ADVOCATE Respondent: (SCOPE OF THE APPEAL) _______ |
Act: Scott, Q.C., Gilchrist, Q.C., Richardson; Taylor & Kelly, Coatbridge
Alt: Clancy, A.D., Q.C., Gardiner, D. Ross; Crown Agent
15 October 2008
The legislation
[1] Part VIII of the Criminal Procedure (Scotland) Act 1995 is concerned with appeals from solemn proceedings. That Part includes sections 106, 107 and 110. These sections, in so far as material for present purposes, provide:
"106(1) Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court -
(a) against such conviction ...".
"107(1) The decision whether to grant leave to appeal for the purposes of section 106(1) of this Act shall be made by a judge of the High Court ...".
Section 107 makes further provision in relation to leave to appeal, including for appeal to the High Court against refusal by the single judge of such leave and, by subsection (7), for the specification, by the single judge or by the court, of arguable grounds of appeal (whether or not they are contained in the appellant's note of appeal).
"107(8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified."
Section 110(1) provides that within a prescribed timetable a convicted person "may lodge a written note of appeal with the Clerk of Justiciary ..." and section 110(3) provides that such note shall "... (b) contain a full statement of all the grounds of appeal ...".
"110(4) Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal.
(5) Subsection (4) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (7) of section 107 of this Act."
Part X of the Act makes provision for appeals from summary proceedings.
[2] Part XA of the Act (inserted by the Crime and Punishment (Scotland) Act 1997) provides for the establishment and functions of the Scottish Criminal Cases Review Commission. That Part, in so far as material for present purposes, provides:
"194A(1) There shall be established a body corporate to be known as the Scottish Criminal Cases Review Commission (in this Act referred to as 'the Commission').
(2) The Commission shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Commission's property shall not be regarded as property of, or held on behalf of, the Crown.
(3) The Commission shall consist of not fewer than three members.
(4) The members of the Commission shall be appointed by Her Majesty on the recommendation of the [Scottish Ministers].
(5) At least one third of the members of the Commission shall be persons who are legally qualified; and for this purpose a person is legally qualified if he is an advocate or solicitor of at least ten years' standing.
(6) At least two thirds of the members of the Commission shall be persons who appear to the [Scottish Ministers] to have knowledge or experience of any aspect of the criminal justice system; and for the purposes of this subsection the criminal justice system includes, in particular, the investigation of offences and the treatment of offenders.
...
194B(1) The Commission on the consideration of any conviction of a person or of the sentence (other than sentence of death) passed on a person who has been convicted on indictment or complaint may, if they think fit, at any time, and whether or not an appeal against such conviction or sentence 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, as if it were an appeal under Part VIII or, as the case may be, Part X of this Act.
...
(3) This section shall apply in relation to a finding under section 55(2) and an order under section 57(2) of this Act as it applies, respectively, in relation to a conviction and a sentence.
[These subsections are concerned with a finding, after an examination of facts, that a person who is insane so that his trial cannot proceed did the act or made the omission constituting the offence and with the disposal of the case in such circumstances.]
...
194C The grounds upon which the Commission may refer a case to the High Court are that they believe -
(a) that a miscarriage of justice may have occurred; and
(b) that it is in the interests of justice that a reference should be made.
194D(1) A reference of a conviction, sentence or finding may be made under section 194B of this Act 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.
(3) In considering whether to make a reference the Commission may at any time refer to the High Court for the Court's opinion any point on which they desire the Court's assistance; and on a reference under this subsection the High Court shall consider the point referred and furnish the Commission with their opinion on the point.
(4) Where the Commission make a reference to the High Court under section 194B of this Act they shall -
(a) give to the Court a statement of their reasons for making the reference; and
(b) send a copy of the statement to every person who appears to them to be likely to be a party to any proceedings on the appeal arising from the reference.
(5) In every case in which -
(a) an application has been made by the Commission by or on behalf of any person for the reference by them of any conviction, sentence or finding; but
(b) the Commission decide not to make a reference of the conviction, sentence or finding,
they shall give a statement of the reasons for their decision to the person who made the application.
...
194F 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."
Sections 194H and 194I...
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