Stretched to the limit

In the courts, the second appeal by the man convicted of planting the bomb on Pan Am 103, Abdelbaset Ali Mohmed al-Megrahi, appeared to stumble earlier this month. A decision was expected on grounds 1 and 2 of Megrahi's appeal on 7 July. Instead the Lord President, Lord Hamilton, stunned everyone present when he announced that one of the five judges, Lord Wheatley, had undergone heart surgery and would not be able to participate further until September.

Lord Hamilton was asked by defence counsel Maggie Scott, QC, to consider appointing a "shadow" judge to the bench in consideration of Megrahi's deteriorating health. It is understood he will nominate a "shadow" shortly.

The problem has been that even with 36 Senators of the College of Justice, its highest-ever membership, it is difficult to find another judge who has not been "cup tied" by participation in a previous Lockerbie-related case – the original Camp Zeist trial, the five-judge bench that rejected Megrahi's first appeal, a role in the original prosecution or involvement in the 1990-91 fatal accident inquiry.

Professor Robert Black says there is an alternative solution available to the Lord President founded in normal Scots law: "The statutory quorum of judges for hearing criminal appeals is normally three. There was never any technical reason why Megrahi's new appeal had to be heard before five judges. They obviously chose to do so because the original trial was before three judges and the first appeal before a bench of five. That was in itself unusual because the number was specified in terms of a special Order in Council. But that Order in Council no longer applies. It expired at the end of the first appeal."

Prof Black's solution is to nominate the junior of the remaining four judges on the bench as the "shadow" in case of further misfortune, allowing the original schedule to be resumed. In parallel to the appeal, there is a separate process initiated by the application lodged by the government of Libya under the prisoner transfer agreement signed with the UK government in November 2008.

Scottish ministers are bound by the agreement and required to consider transfer applications made under it. Megrahi is the only known Libyan presently in jail in the UK. The Scottish Government received an application from the Libyan government in respect of Megrahi on 5 May. Responsibility for considering the application has fallen to justice secretary Kenny MacAskill, who has to carry out a quasi-judicial role in assessing the merits of the competing arguments.

As part of the exercise, MacAskill invited families of the US victims to take part in a video link consultation last week. The president of US Victims of Pan Am 103, retired lawyer Frank Duggan, says about eight family representatives were present in Washington and a similar number in New York. (...)

[Mr Duggan said] "It was very, very difficult and we were all blubbering. I got the impression Mr MacAskill was listening very carefully. Of course, he couldn't make comments, as that would compromise his role, but he was clearly going about his job properly."

Stephanie Bernstein, a recently-ordained Rabbi in Washington, says: "This decision for Mr MacAskill is very difficult, but very important."

Mr Duggan dismisses stories that said the US families had taken legal advice that would underpin an application for immediate judicial review should Mr MacAskill decided to grant the Libyan government application. "That is completely wrong," he says. "We haven't sought such legal opinion, nor do we intend to. There's no suggestion of us raising judicial review – as a group we don't have standing in the Scots jurisdiction. It's not an option.

"Don't get me wrong: if Megrahi is sent back, we will raise hell. It was clear in all the correspondence between the US, UK and the United Nations, if anyone was convicted (at Camp Zeist], they would serve the whole sentence in Scotland. That was the deal."

In terms of the prisoner transfer agreement, Mr MacAskill has 90 days from the date of the Libyan application, 5 May, to reach a decision. The application cannot proceed while legal proceedings continue; Megrahi would have to abandon his appeal to activate the transfer.

The key decision might not be a legal one, however. Megrahi's medical condition might cut across both the appeal and prisoner transfer agreement. If medical opinion were to establish that he is seriously ill and close to death, Mr MacAskill could order his release on compassionate grounds. On that basis, Megrahi would be deemed to have served his sentence in terms of Scots law.

Mr Duggan says: "There are thousands of prisoners in US jails with cancer who serve many years with it. We don't want a horrible death in jail for anyone, but at his bail hearing, it was said he could live for another five years. I think we have more faith in the Scottish legal system than you appear to over there."

[From an article by John Forsyth in today's edition of The Scotsman. The full text can be read here.]