Lockerbie families could exploit legal loophole to raise conviction appeal after al-Megrahi's death

[This is the headline over a report in the Daily Record, one of Scotland's largest-circulation newspapers. It reads as follows:]

Abdelbaset al-Megrahi's appeal could be back on, the Record can reveal.

Family members of those killed have learned a legal loophole will allow a third party to have the case reopened on Megrahi's behalf after his death.

The convicted terrorist - who is dying from cancer - sensationally dropped his case days before being freed on compassionate grounds.

The move was viewed as a massive blow to the chances of the public ever getting to the truth of the Pan Am flight 103 explosion, which killed 270 in 1988.

But the families - some of whom believe Megrahi is innocent - held talks yesterday to discuss the possibility of applying to the Scottish Criminal Cases Review Commission for an investigation.

Doctor Jim Swire, whose daughter Flora was killed, said: "We want to know the truth and his appeal was to be our way of getting to that.

"Any way there is to dig out this appeal, anything that makes it more likely that the appeal could be reborn, would be music to our ears.

"We would certainly be interested in looking at taking this up ourselves or asking someone to do that on our behalf if that is possible."

Normally an appeal cannot be restarted once abandoned.

But legislation drawn up before the SCCRC were introduced in 1999 states that anyone - not just the convicted person - can apply for a case to be investigated on grounds there has been a miscarriage of justice.

And should the Commission refer the case to the appeal court, it must be considered.

A Scottish Justiciary Office spokesman said: "As we have had proceedings to formally abandon the appeal, some reason would have to be given to resurrect it.

"But technically, there is provision within the legislation that created the SCCRC for the appeal court to consider it."

[Note by RB: The legislation which set up the SCCRC envisages applications being made by persons other than the convicted person himself: Criminal Procedure (Scotland) Act 1995, section 194D(1) and (2). Under section 194C, the Commission may refer a case to the High Court if they believe (a) that a miscarriage of justice may have occurred and (b) that it is in the interests of justice that a reference should be made. Condition (a) is clearly satisfied: the SCCRC so decided in Mr Megrahi's own application.

But what about condition (b)? Would the Commission regard it as in the interests of justice to refer a case back to the High Court where the convicted person himself had commenced an appeal on a SCCRC reference and then chosen to abandon it? The answer might depend on the precise circumstances in which the appellant came to abandon his appeal. Mr Megrahi's terminal illness; the fact that prisoner transfer was not open while the appeal was ongoing; and the fact that Mr Megrahi had no way of knowing that Kenny MacAskill would ultimately opt for compassionate release rather than prisoner transfer, would be relevant factors.

The relevant legislation can be read here.]