The Scottish Criminal Cases Review Commission (SCCRC) has announced that it is to review the conviction of Abdelbaset al-Megrahi for the Lockerbie bombing. The timeline of the case is a complex one. It is set out in more detail here, but in brief, al-Megrahi was convicted in 2001 and sentenced to life imprisonment. An initial appeal against conviction did not succeed. He applied to the SCCRC and his case was referred back to the appeal court in 2007. However, the case was abandoned before it reached the court, when al-Megrahi was released from prison on compassionate grounds – he was suffering from cancer – and subsequently died. His widow and son, represented by University of Glasgow Rector Aamer Anwar, asked the Commission last year to look again at his case, which it has now agreed to do. If the SCCRC decide to refer the case back to the appeal court again, it would be the first time that the Scottish Commission has referred a case where the convicted person is deceased. The SCCRC is one of only a small number of independent post-conviction review bodies across the world. Such bodies investigate cases of alleged wrongful conviction and have the power to refer cases back to the courts for consideration if the investigation indicates that a miscarriage of justice might have occurred. It is then for the court to determine the case – but many convictions referred to the appeal court by the Scottish Commission have resulted in the conviction being quashed.
The vast majority of applications for conviction review come from the living – often from those who are currently serving a prison sentence. But should applications be accepted on behalf of those who have died? The various post-conviction review bodies that exist worldwide differ in their approach to this. The Scottish Commission and the Criminal Cases Review Commission for England and Wales accept such applications and the English Commission has referred a number of cases where the convicted person is dead. The Norwegian Criminal Cases Review Commission does likewise. The North Carolina Innocence Inquiry Commission – the only independent post-conviction review body that exists in the US – does not.
But should this be permitted? Resources are not infinite and the cost to the public purse of an investigation and any subsequent appeal hearing could be substantial. The death of an accused person during ongoing criminal proceedings would bring those proceedings to a close – we do not prosecute the dead (if for no other reason than it would be unfair to prosecute someone who so clearly cannot defend themselves). The considerations are, however, a little different when it comes to appeals and there are two possible arguments in favour of posthumous review. The first is that the impact of a wrongful conviction can be considerable for the family of the wrongly convicted person. This effect is not as direct as it is for the convicted person themselves – who can be deprived of liberty and who can face considerable stigma that impacts on subsequent employment prospects. However, the effect of wrongful conviction on family members is also substantial, especially where the convicted person has been imprisoned and their family has to adjust to life without them. The stigma of conviction is not limited to the wrongfully convicted person either and the important point is that the lingering effects of this can persist after the death of the person concerned. A posthumous exoneration remedies this indirect reputational harm and gives family members the satisfaction of knowing that the stain on the character of their loved one has been removed.
The second reason is that there is a wider public interest in acknowledging and correcting mistakes made by the criminal justice system in order to foster public confidence. This point was made by the Court of Appeal in England and Wales in the notorious case of James Hanratty, referred by the English CCRC after his death (and where his conviction was quashed by the court). Referring cases where the convicted person has died can also be of benefit if the case reveals malpractice on the part of the authorities or if there are other lessons to be learned from the case that would reduce the risk of wrongful conviction in future.
These arguments will not apply to all cases. The public interest and benefit to surviving family members is less clear if the case has long since faded from the public memory. The English CCRC recently declined to refer a case – that of Stephen Ward – where the conviction occurred in 1963, in part because the massive changes that had since occurred in the criminal justice system since then meant that any lessons from the case were unlikely to have practical relevance today. The public interest argument is also weaker when the case is not one where the factual innocence of the convicted person is clear, for example where the basis for the reference is that they should have been convicted of a lesser charge, rather than not convicted at all (as in another case referred by the English CCRC, that of Ruth Ellis, where the Court of Appeal declined to quash the conviction for murder and substitute one for manslaughter, and questioned whether the referral was a sensible use of the limited resources of the court).
None of these considerations apply to any significant degree in the case of al-Megrahi. The Lockerbie bombing, while it occurred almost 30 years ago, is still fresh in the memories of many. If his conviction is quashed – and it has to be borne in mind here that there is still a long way to go in the case – it would be significant both for his family and for the public more widely.
~ Professor Fiona Leverick
Fiona Leverick is Professor of Criminal Law and Criminal Justice at the School of Law.