This is the heading over a letter from Dr Jim Swire in today's edition of The Herald. It reads in part:
'There are those who believe it may seem in the interests of Scotland, England and the US that there should be no further appeal.
'Think of the saving of expense, think of the avoidance of disruption to the Scottish criminal system. (...)
'Perhaps Scottish politicians are being advised that they should encourage the Libyans to persuade Mr Megrahi to abandon his appeal, with a view to immediate repatriation.
'In 2007, Tony Blair claimed to have reached a "memorandum of understanding" to allow Libyan prisoners held in the UK to be repatriated to Libya, when there were no outstanding legal issues against them in the UK. This memorandum of understanding is, we believe, to be ratified this month. It is simply not in the gift of a British Prime Minister to decide the disposal of those convicted under Scottish criminal law. That is the prerogative of Holyrood ministers.
'On April 4, 2008, Alex Salmond, the First Minister, said: "Anybody connected with and convicted of the Lockerbie bombing should serve their sentences under Scottish jurisdiction we will defend the integrity of the Scottish judicial system and uphold the international agreements that had previously been made." This latter refers to the agreement of the US, UK and Libya, that if found guilty, the accused would serve their sentences in Scotland.
Since Mr Megrahi has to abandon his appeal before he can be considered for repatriation, then unless the First Minister does a high-profile U-turn and appears to give in to the desires of the civil servants in Westminster, Mr Megrahi could find himself no nearer home and with no prospect of any appeal, since an abandoned one cannot be resumed.
'There is only one way to redress some of the damage caused to the reputation of Scotland's judicial system; that is to bite the bullet and allow the evidence to be re-examined in a fair appeal court. (...)'
Dr Swire is correct: an application for transfer back to Libya cannot be made while Mr Megrahi is pursuing an appeal. Any such application would require the appeal to be abandoned. A cynic, such as I, might say that that is an outcome that would be welcomed by the Crown Office and by Scottish Justice Department civil servants who, behind the scenes, may well be encouraging such an application to be made. And, as Dr Swire points out, the application might in any event be refused, if the First Minister's words are worth the paper they are written on.
If the appeal were abandoned, would that necessarily mean the end of any attempt to establish the unjustness of the conviction of Abdelbaset Megrahi? There are two ways in which the campaign to clear Mr Megrahi's name might be continued.
(a) Mr Megrahi’s lawyers could be instructed to place all of the material gathered by them for the appeal into the public domain. This would enable interested persons to see that, had the appeal not been abandoned, it would have succeeded. It might also lead to pressure for the setting up of an official enquiry into the Lockerbie affair, which would --it is to be hoped and expected -- result in Mr Megrahi’s exoneration and that of Libya.
(b) Mr Megrahi’s lawyers could apply on his behalf for a royal pardon and submit in support the material gathered for the appeal. The Queen grants or refuses such a pardon on the advice of Ministers (in this case it would be the Scottish Ministers). I have no doubt that Scottish Justice Department civil servants would advise the Scottish Ministers to dismiss the application for a pardon. But it is possible that the Ministers would reject that advice, particularly if Scottish public opinion were mobilized in support of a pardon.
[Dr Swire also has a letter published in today's issue of The Scotsman. He points out consequences that have flowed from the decision by the United States and the United Kingdom to move the focus of the Lockerbie investigation away from Ahmed Jibril's PFLP-GC and towards Libya.]
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