Scottish Criminal Cases Review Commission

Scottish Criminal Cases Review Commission
Formation	1995
Type	legal

The Scottish Criminal Cases Review Commission (SCCRC) is an executive non-departmental public body of the Scottish Government, established by the Criminal Procedure (Scotland) Act 1995 (as amended by the Crime and Punishment (Scotland) Act 1997).

The SCCRC has the statutory power to refer cases dealt with on indictment (i.e. solemn cases) to the High Court of Justiciary. This was extended to include summary cases by Statutory Instrument on 31 March 1999, immediately before the Commission took up its role in April 1999.

Under the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, the High Court of Justiciary was given powers to reject cases referred to it by the SCCRC.

Though funded by the Scottish Government, investigations are carried out independently of Scottish Ministers, with the Commission being accountable to the Scottish Parliament on matters of finance and administration.

Governance and administration

The Commission is headed by Chief Executive, Gerard Sinclair, and staffed by a Director of Corporate Services, 2 Senior Legal Officers, 6 Legal Officers and 3 admin support staff. Eight Legal Officers and one Senior Legal Officer are required to deal with the Commission's normal case load. In order to review the case of Abdelbaset al-Megrahi, the Commission sought approval from the Scottish Executive Justice Department for the appointment of 2 additional Legal Officers and 1 Senior Legal Officer.

The SCCRC has a Board of Management of 9 members appointed by Her Majesty The Queen on the recommendation of the First Minister of Scotland. As of 18 January 2013, its current members are:

• Jean Couper CBE, Chairman
• Mr David Belfall
• Mr Graham Bell QC
• Professor Brian Caddy
• Mr Stewart Campbell
• Mr Gerard McClay
• Professor George Irving
• Mr Gerry Bann
• Mr Christopher Shead

By statute, at least one third of the Commission's members are required to be legally qualified (either an advocate or solicitor of at least 10 years' standing) and at least two thirds must have knowledge or experience of the Scottish criminal justice system.

The Board members and the Chief Executive are required to work together to ensure that the Commission runs efficiently and effectively.

Role of the SCCRC

The Commission's role is to review and investigate cases where it is alleged that a miscarriage of justice may have occurred in relation to conviction, sentence or both. The Commission can only review and investigate cases where the conviction and sentence were imposed by a Scottish Court (the High Court of Justiciary, the Sheriff Court or the District Courts of Scotland), and when the appeal process has been exhausted.

Powers

The SCCRC can investigate both solemn and summary cases. It will conduct a thorough, independent and impartial review and investigation of all cases accepted for review. The Commission has wide-ranging powers of investigation. After the review has been completed the Commission will decide whether or not the case should be referred to the High Court. If it is decided to refer a case, the case will be heard and determined by the High Court of Justiciary as if it were a normal appeal.

Aims

The main aims of the Commission are:

• To ensure that all cases are dealt with efficiently and effectively;
• To deliver its services in ways appropriate to stakeholders' needs;
• To promote public understanding of the Commission's role;
• To enhance public confidence in the ability of the criminal justice system to cure miscarriages of justice.

Confidentiality and disclosure

The Commission operates under strict statutory non-disclosure provisions, and cannot disclose any information about individual cases. The Commission can disclose the fact that a case has been referred to the High Court but will not release any information regarding cases in which no referral has been made or in respect of cases under review.

Statistics

As at 31 March 2007 the SCCRC had received a total of 887 cases since April 1999, when it was established. The Commission completed its review of 841 of these cases and referred 67 of them to the High Court. Of the referrals, 39 have been determined: 25 appeals were granted; 11 appeals rejected; and, 3 abandoned. Chief Executive, Gerard Sinclair, says that normally the court rules about half the referrals to be a miscarriage of justice each year, which would equate in 2003 to roughly 0.005% of the total number of Scottish criminal convictions. But, says Sinclair: "Even if it were just one wrongful conviction a year, that would still be one too many."

Budget and expenditure

The Scottish Government agreed an SCCRC budget of £1.2m for 2008–09. On page 16 of the 2007–2008 annual report and accounts of the SCCRC, published on 4 June 2008, chief executive Gerald Sinclair has written a summary of the SCCRC's administration of the Lockerbie review.

Lockerbie case

Former SCCRC member, Bill Taylor QC, who acted as Senior Counsel for Abdelbaset al-Megrahi at the Lockerbie bombing trial and at his appeal in 2002, resigned as a Commissioner on 23 September 2003. This was the same day as the SCCRC received an application from solicitors acting on Megrahi's behalf, requesting that it review his conviction. Megrahi's appeal against his 27-year minimum jail sentence was scheduled to be heard in Edinburgh before a panel of five Judges on 11 July 2006. This July hearing was, however, postponed to allow the question of the venue for the appeal (Edinburgh or Camp Zeist, Netherlands) to be resolved. On 1 November 2006, Megrahi was reported to have dropped his demand for the appeal against sentence – and any further appeal against conviction that the SCCRC might award – to be held at Camp Zeist.

SCCRC's decision

In January 2007, the SCCRC announced that it would issue its decision on Megrahi's case by the end of June 2007. On 17 June 2007 The Observer confirmed that the SCCRC's decision was imminent and reported:

"Abdelbaset al-Megrahi never wavered in his denial of causing the Lockerbie disaster: now Scottish legal experts say they believe him."

On 27 June 2007, Tony Blair resigned as prime minister handing over to Gordon Brown, who had long coveted the premiership.

On 28 June 2007, the SCCRC referred Abdelbaset al-Megrahi’s conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, to the Crown and to the High Court) extended to over 800 pages, accompanied by thirteen volumes of appendices. The Commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate that there were six grounds upon which it had concluded that a miscarriage of justice might have occurred. Strangely enough, however, only four of these grounds were enumerated in the summary:

"A number of the submissions made on behalf of the applicant challenged the reasonableness of the trial court's verdict, based on the legal test contained in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Commission rejected the vast majority of those submissions. However, in examining one of the grounds, the Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.

"New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in thearea of Sliema in which Mary's House is situated. In the Commission's view, taken together with Mr Gauci's evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.

"Additional evidence, not made available to the defence, which indicates that four days prior to the identification parade at which Mr Gauci picked out the applicant, he saw a photograph of the applicant in a magazine article linking him to the bombing. In the Commission's view evidence of Mr Gauci's exposure to this photograph in such close proximity to the parade undermines the reliability of his identification of the applicant at that time and at the trial itself.

"Other evidence, not made available to the defence, which the Commission believes may further undermine Mr Gauci's identification of the applicant as the purchaser and the trial court's finding as to the date of purchase."

It was anticipated that preparation for Megrahi's second appeal could take as long as a year.

International observer's view

Professor Hans Köchler, who was appointed by UN Secretary General, Kofi Annan, to observe the Pan Am Flight 103 bombing trial at Camp Zeist, Netherlands was reported to be baffled by the SCCRC's four-year delay in reaching a conclusion. Köchler said:

"In my experience as observer of the Lockerbie trial, the Roman law system is superior to the common law system (practised in Scotland), particularly in matters of criminal law. It is indeed revealing that it takes the SCCRC so many years (that are apparently needed, inter alia, for secret negotiations between the governments of the involved countries) to announce its decision on whether there should be a retrial in the Lockerbie case or not."

Following the SCCRC's decision on 28 June 2007 to refer the case back for a second appeal, Köchler expressed surprise at the focus of the Commission's review and its apparent bias in favour of the judicial establishment:

"In giving exoneration to the police, prosecutors and forensic staff, I think they show their lack of independence. No officials to be blamed: simply a Maltese shopkeeper."

On 4 July 2007 Köchler wrote to Scottish First Minister, Alex Salmond, to Foreign Secretary, David Miliband, to Home Secretary, Jacqui Smith, and to FCO Minister of State with responsibility for Africa, Asia and the UN, Mark Malloch Brown describing the SCCRC's decision as "long overdue" and calling for a full and independent public inquiry into the Lockerbie case.

Scottish Executive press statement

Lockerbie campaigner Barry Walker reported that the Scottish Executive issued a press statement on 2 July 2007 headed “Lockerbie case referred to Appeal Court” which stated that “since the time of the bombing numerous allegations have circulated concerning the possible involvement of Khaled Jaafar, a passenger on Pan Am 103 who boarded the PA103A feeder flight at Frankfurt. A number of these allegations were repeated in submissions made to the SCCRC. The results of the Commission's enquiries in this connection provides no support for the claim that Mr Jaafar was involved wittingly or unwittingly in the bombing.”

Unfortunately while I agreed with this completely, I was given the false impression that the SCCRC would be conducting an objective enquiry. The Scottish Executive press statement also contained the following paragraph:

“The Commission has concluded after full and proper investigation that these submissions are unsubstantiated and without merit. In particular the Commission has found no basis for concluding that evidence in the case was fabricated by the police, the Crown, forensic scientists or any other representatives of official bodies or government agencies.”

This turned out to be quite untrue in that evidence was fabricated – it was just that the SCCRC had covered this up or explained it away by accepting fabricated evidence as genuine. Indeed they expressly stated that they had precluded the possibility of criminality on the part of the authorities by accepting any explanation however unlikely that precluded Criminal misconduct. Indeed they stooped to explaining away blatantly fabricated evidence.

In the first ground of Appeal, (the claim that the trial Judges verdict was unreasonable), in that they had not given proper consideration to the defence case the document stated (section 2.1.6) “The trial court's reasoning as to why it rejected the defence case where it relied upon the incrimination of the PFLP-GC and the evidence relating to Khaled Jaafar is fundamentally flawed.“ In particular the Court had concluded there was no evidence the PFLP-GC ”Autumn Leaves” group had an MST-13 timer and reference was made to Marwan Khreesat's claim that he never used a twin-speaker radio-cassette, while the evidence produced was that the Lockerbie bomb was contained within a twin-speaker Toshiba bombeat.

However the written submissions contained nothing to refute these two key claims. Yet as detailed in my 2013 article “Hear No Evil, See No Evil, Speak No Evil” the evidence that Dr Hayes discovered the fragment of MST-13 timer and the evidence the Lockerbie bomb was contained within a twin-speaker radio-cassette was demonstrably fabricated. While the SCCRC Statement of Reasons had concluded that page 51 of Dr Hayes' notes (detailing his supposed discovery of the MST-13 timer on the 12th May 1989 together with fragments of an owner's manual for a twin speaker Toshiba) was quite compatible with “photograph 117” taken on the 22nd May 1989. In fact the two are fundamentally contradictory.

The SCCRC Statement of Reasons was kept out of the public domain until published by the Sunday Herald in December 2007 and the appendices are not in the public domain. It was only when I obtained crucial supporting evidence, notably the statement of the Forensic Document Examiner (that the SCCRC had spun to reverse the import of his findings) and the Police photographic logs (which proved photograph 117 was taken on the 22nd May 1989 proved that the crucial page 51 could not have been written ten days before the photograph was taken. In short there was no credible evidence the bomb incorporated an MST-13 timer or was contained within a twin-speaker radio-cassette.

Of course Megrahi's defence teams, led by Mr McKechnie and Mr Kelly, (both of which employed John Ashton as researcher) never noticed the glaring anomaly between “page 51” of Dr Hayes' notes and “photograph 117” despite being in possession of the supporting documentation for years. I noticed the anomaly within hours of receiving copies of the Police photographic logs. (One of Mr McKechnie's submissions to the SCCRC concerned “photograph 117” but alleged a contradiction with another photograph, which was easily explained away, rather than the crucial contradiction with "page 51".

I also discovered quite quickly serious anomalies with another key exhibit the “Horton Manual” that supposedly proved the IED was contained within a twin-speaker radio-cassette. While the SCCRC Statement of Reasons produced a photograph of the Horton Manual, I discovered this was not the original photograph taken by the Police but one of very dubious authenticity. Did Megrahi's defence team even bother to study the SCCRC Statement of Reasons?

Now Ashton wants yet another bite of the cherry. Are the SCCRC going to publicise the fundamental flaws in their Statement of Reasons? I doubt it. I wrote to the SCCRC Director drawing these to his attention but he didn't seem to think it was any of his business.

Seven years' hard

"Seven years' hard" was the title of an article written by Professor Black on 7 July 2014:

This blog is seven years old today.

I started the blog just after the Scottish Criminal Cases Review Commission had referred Abdelbaset al-Megrahi’s conviction back to the High Court of Justiciary for a further appeal. It seemed to me that a commentary on the appeal process would be of some value. My expectation was that, even allowing for the law’s notorious delays, the blog would not be needed for longer than two years — or two-and-a-half at the outside. Foolishly, of course, I gravely underestimated the Crown Office’s ingenuity in delaying proceedings (with the connivance or condonation of the appeal judges) and the obstructiveness of the then UK Government in the persons of the Foreign Secretary, David Miliband, and the Advocate General for Scotland, Lord Davidson of Glen Clova QC. The result was that the appeal hearing had only barely got into its stride when Megrahi’s illness led to his abandoning the appeal and being released on compassionate grounds in August 2009. So the Megrahi case lingers on, as does this blog. Perhaps the current SCCRC application will enable the case and this blog to be decently buried. But don’t expect it to be anytime soon.

Families' 2014 application

Six immediate members of Abdelbaset al-Megrahi’s family have joined forces with 24 British relatives of those who died in the Lockerbie bombing to seek a third appeal against his conviction in the Scottish courts, a press conference in Glasgow heard on 5 June 2014, when lawyer Aamer Anwar lodged an application with the Scottish Criminal Cases Review Commission (SCCRC) on their behalf.

Megrahi abandoned a second appeal against conviction in 2009 after being diagnosed with terminal prostate cancer. He was released from jail on 20 August 2009 by the Scottish Government on compassionate grounds, and died protesting his innocence on 20 May 2012.

See also

• Abdelbaset Ali Mohmed Al Megrahi/Compassionate release

External links

• Scottish Criminal Cases Review Commission
• Lockerbie Observer Mission of UN observer Dr Hans Köchler

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