Must the new appeal be heard at Zeist?

Professor Hans Köchler, the UN appointed observer at the Lockerbie trial, has today issued a press release in the following terms:

‘In an article published in its issue of 15 June 2008, the Sunday Times reports that Prof Robert Black (Edinburgh) “said that the intergovernmental agreement no longer applied.” He is quoted with the statement that the Agreement “existed for the original trial and the appeal. This is now the second appeal …” and that “the agreement was spent.”

‘The statement that the Agreement “no longer applied” and “was spent” contradicts the precise wording of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish Trial in the Netherlands, concluded at The Hague, Netherlands, on 18 September 1998 and entered into force on 8 January 1999 (United Kingdom Treaty Series No 43 [1999]) in the following two respects:

‘(1) Art 3(4)(c) states that “the trial” “will be deemed to be ended when … any judgments of the Scottish Court following conviction have become final and conclusive.” As of today, this is clearly not the case since the Scottish Criminal Cases Review Commission has referred Mr. Megrahi’s case back to the High Court for a second appeal.

‘(2) Under “Definitions” in Art 1, it is expressly stated that the term “the trial” also means “any appeal by the accused following conviction, all in accordance with Scots law and practice.” Nowhere does the agreement distinguish between a “first” and a “second” appeal.

‘If one applies the provision of Art 16(2)(a) of the Agreement to the situation prevailing now – after a new appeal has been granted to the convicted Libyan national – the appeal proceedings can only be held in Scotland under the condition that he has given his “written agreement” and has confirmed that agreement “in person to the High Court of Justiciary in the presence of any counsel instructed by [him].”

‘As of today, the undersigned is not aware of such a written agreement given by Mr Megrahi in person to the High Court of Justiciary. An agreement conveyed by his defense counsel (should that have been the case) is not sufficient. Even in the case of Mr Megrahi’s having given his agreement according to Art 16(2)(a), the intergovernmental Agreement as such is still valid because it does not distinguish between “first” and “second” appeal.’

My response is as follows:

Dr Köchler is wrong in his interpretation of the intergovernmental agreement. It covered a trial and an appeal, both of which have now taken place. Extraordinary processes subsequent to the conclusion of trial and appeal (such as applications to the European Court of Human Rights in Strasbourg and applications to the Scottish Criminal Cases Review Commission and procedure flowing therefrom) are not covered by the extraterritorial provisions of the agreement, and no court would interpret the agreement as embracing them. Clearly, neither the Government of the Netherlands nor the Government of the UK would have agreed to maintaining the Scottish Court (and the Scottish prison) in existence at Zeist for an indefinite period (amounting potentially to decades) to cover the event of a successful application being made to the SCCRC at some indeterminate time in the future. Dr Köchler’s interpretation would entail precisely that unreasonable consequence and, for that reason alone, would be rejected by any court tasked with construing the agreement.

The expression “any appeal” in the context in which it is used, means “an appeal (if there happens to be one)”. A convicted person may choose not to appeal. “Any appeal” is a recognised way, in the English language, of expressing this element of indeterminacy. It does not envisage a plurality of appeals. If that had been the intention, the phrase used in art 1 would have been “any appeals (or 'all appeals') by the accused following conviction”.

It is noteworthy that Mr Megrahi’s current (and highly expert and experienced) legal team have deliberately decided that such a submission (that the extraterritoriality provisions of the intergovernmental agreement should apply to the new appeal) was not worth pursuing.