Interim liberation: law and practice

The relevant statutory provision relating to the granting of bail to convicted prisoners pending an appeal is section 112 of the Criminal Procedure (Scotland) Act 1995, the relevant portions of which read:

“(1)… the High Court may, if it thinks fit, on the application of a convicted person, admit him to bail pending the determination of … his appeal.

“(2) The High Court shall not admit a convicted person to bail unless (a) the application for bail … states reasons why it should be granted … and (b) the prosecutor has had an opportunity to be heard on the application.”

The traditional approach of the High Court to the granting of bail pending an appeal is set out in guidelines issued by Lord Justice Clerk Wheatley in 1984 who stated that “it is not for [the judge considering bail] to pre-empt the decision of the Court of Criminal Appeal [on the appeal itself]. Accordingly if there are grounds of appeal which ex facie would warrant the quashing of the conviction if sustained, in such circumstances interim liberation should be granted.”

There can be little doubt that this test is satisfied in Abdelbaset Megrahi’s case. Not only have voluminous grounds of appeal been lodged which, if sustained, would lead to the quashing of the conviction; but also an independent review body, the Scottish Criminal Cases Review Commission, has reported that the conviction may have constituted a miscarriage of justice.

The Crown has on occasion sought to argue that a convicted prisoner should be released on bail pending his appeal only in exceptional circumstances. This argument was decisively rejected by the Criminal Appeal Court in the case of Ogilvie, Petitioner 1998 SCCR 187.

Other factors that may be relevant to the court’s decision in Mr Megrahi’s case are (1) the delay to which he has been subjected while his application was in the hands of the SCCRC and since his case was returned to the High Court; and (2) the information that has recently become public about the grave state of his health.

The court normally, though not invariably, does not reserve judgement but announces its decision at the end of the hearing.