A commentary on the implications of the ‘Cadder Case’


Speakers Corner…by Mr Robert Forrester and Professor Robert Black QC

Statement by Mr Robert Forrester (Secretary, Justice for Megrahi).
Some of you will clearly already be well aware of the shenanigans taking place behind the scenes at the very time that the Justice for Megrahi Committee was in front of the cameras making their formal media presentation of the JFM petition to the Chairman of the Scottish Parliament Public Petitions Committee last week.

However, for those who may as yet be in the dark, hardly surprising given the attention being paid to this issue in the press and broadcast media, we include here some comments by Professor Robert Black QC (a JFM committee member) and ourselves on an issue which we certainly hope we will be hearing a lot more about in the days to come.

What we refer to, of course, is the emergency legislation which was driven through the Scottish Parliament at break neck speed by the Scottish Government on the 27th October, and whilst it is claimed that its origin is owed to a case referred to as the ‘Cadder Case’, a section of the new legislation has a direct and very serious impact on any progress the bereaved families of Pan Am 103 might be hoping to make vis-à-vis the reopening Mr al-Megrahi’s second appeal in the interests of justice.

In forcing this through parliament, the current Scottish Government has cast itself in an even darker light than any of its predecessors in our view. Effectively, it appears that the Crown has now been handed powers to be its own arbiter when it comes to accepting appeals against what are perceived to be miscarriages of justice handed down by itself.

This is not only scandalous, it is also setting an extremely dangerous precedent. Scotland will now have on its statute book a law which will establish the Scottish criminal justice system as a legally sanctioned judicial dictatorship in which decisions as to what ought or ought not to be accepted for appeal is entirely in the hands of the civil servants, their decision will be final and there will be no recourse to any form of independent oversight which could act in the interests of justice and the people of Scotland.

This is certainly the most depressing development in the Lockerbie/Zeist case in recent times. We do not think we are over egging matters to say that it is a particularly disturbing move as it is precisely this type of legislation which has in the past provided the foundation stones for building some of the most malefic forms of political regimes known to humankind.

One of our only hopes now surely is for representatives of the legal profession, whether active or retired, eminent or less so, to kick up such a stink about this that the Scottish Government is forced back to the drawing board.

Neither the Crown nor our elected representatives are doing themselves any favours by riding roughshod over our justice system in this manner. Worse still, these actions display an unconscionable disregard for the people of Scotland, who incidentally, pay the very generous salaries of those representatives of the Crown and who claim to be acting on our behalf in Holyrood.
Whilst we all watch the soaps, the footie and the X-Factor then, our the institutions, which we trust to provide cohesion to what we all hope is a just and fair society, appear to be spending rather more time than is healthy in defending their personal reputations by preventing investigations into possible miscarriages of justice instead of what they ought to be doing: applying their time and expertise to and for the betterment of society as a whole.
The al-Megrahi/Zeist case has profound ramifications for us all. It raises questions and symbolises issues which strike at the very heart of what we perceive our identity to be. In addressing this matter, JFM seeks to ask exactly what justice is, what it means, whom it exists to serve and what role it ought to be playing in our society.

If our institutions of government and the civil service persist in failing to look themselves in the mirror and make an honest attempt to take the bull by the horns, they will have only themselves to blame if, by their actions and inaction, the good name of Scottish justice is not redeemed and society further degenerates into a morass of cynicism.

Statement by Professor Robert Black QC
The emergency legislation doesn’t scupper the families, but it does make it more difficult for them.  The SCCRC is now told that in considering whether to refer back for an appeal, it must take into account “the need for finality and certainty in criminal proceedings”.  This, I am sure, was always ONE of the factors that the SCCRC put into the balance when considering whether it was “in the interests of justice” to refer back.  But it is now specifically instructed to take it into account.  In an evenly balanced case, it might now tip the scales in favour of not referring back.
Much more important is the power given to the High Court (sitting as the Criminal Appeal Court).  Even where the SCCRC has decided to refer back, the High Court, in turn, can refuse to accept the reference, having regard to “the need for finality and certainty in criminal proceedings”.  This is an entirely new hurdle that has to be jumped.  And remember that in almost every case that the SCCRC refers back, it will be an earlier decision of the High Court itself that is being said may amount to a miscarriage of justice.  So the very body whose decision is being impugned can decide not to hear the challenge to that decision on the basis of  “the need for finality and certainty in criminal proceedings”!
Talk about conflict of interest! Talk about no-one being judge in his own cause! Talk about justice being seen to be done!  What a world we live in.
 It is amazing that the media, in their reports about the emergency legislation, didn’t pick this aspect up at all. At my instigation, it was raised in Parliament by Christine Grahame MSP, who even tabled an amendment to delete section 7. But all to no avail (and with no media interest whatsoever).

The purpose of the new provision is to minimize the number of people (convicted on the basis of admissions made during police interviews conducted without their having access to legal advice) who are (a) allowed an appeal by the SCCRC or (b) allowed by the High Court to proceed with that appeal if the SCCRC still decides to grant them one.

It is (b) in particular that is the monstrosity. If the SCCRC says that a miscarriage may have occurred and that it is in the interests of justice that there should be an appeal to the High Court, it is nothing short of outrageous to allow the High Court — the very body responsible for the miscarriage of justice that the SCCRC says may have occurred — to decide not to hear the appeal “in the interests of certainty and finality”.

It is shameful that any supposedly responsible government should have proposed such legislation and that any supposedly responsible legislature should have supinely enacted it.