Wednesday, 3 November 2010

An outrage that should not happen in any civilised country

["Emergency law ‘may prevent Lockerbie bomber appeal’" is the headline over an article in today's edition of The Times (which can be accessed here -- but only, of course, by subscribers). It reads in part:]

The Scottish government has been accused of using newly enacted (...) legislation to push through a law that will prevent supporters of the Lockerbie bomber from appealing his case.

A clause buried in the emergency legislation that followed the British Supreme Court’s ruling on “the Cadder case” allows High Court judges to have the final word on whether an appeal should be heard on their own ruling on a case.

Critics of the legislation say this represents a clear conflict of interest for the High Court, in its dealings with the Scottish Criminal Cases Review Commission (SCCRC), while supporters of Abdul Baset Ali al-Megrahi believe the new modus operandi will present an almost insuperable obstacle to an appeal against his conviction being heard.

“Section 7 [of the new legislation] would appear to place an additional hurdle in the path of any such attempt,” said Robert Black, Professor Emeritus of Law at the University of Edinburgh.

“Even if it wasn’t done for that reason, it is inherently undesirable. It is outrageous that a Scottish government, that any responsible government, should have proposed such legislation and it is outrageous that any responsible parliament should have passed it.”

Professor Black’s intervention came a week after the Supreme Court ruled that Scottish arrest and detention laws did not comply with the European Convention on Human Rights (ECHR). (...)

Professor Black said emergency legislation had been unnecessary and the result was “absolutely astonishing and disgraceful”.

Critics of the legislation are outraged that it could prevent the Lockerbie case being heard again by the High Court, should some of the families of victims killed in the 1988 atrocity resurrect Megrahi’s appeal, as they they intend. The Libyan, who is dying of cancer, was convicted of the bombing in 2001.

Professor Black said: “The effect [of the new law] is that even if the SCCRC now says there may have been a miscarriage of justice and it is in the interests of justice that there should be an appeal, the Appeal Court itself can say, ‘We refuse to accept the reference’. That is the same body — namely the High Court — whose initial decision the SCCRC has said may amount to a miscarriage of justice. In that case, the High Court can turn round and say, ‘We, the court you are accusing of perhaps having perpetrated a miscarriage of justice, say: ‘Go away and get stuffed.’ That is an outrage and should not happen in any civilised country.”

John McGovern, the president of the Glasgow Bar Association, dismissed the legislation as “civil service law”, and he too was at a loss to explain its rationale for Section 7.

“The SCCRC is very independent. Why they have used this Act to take away its independence and place it in the hands of the Appeal Court, I don’t know. It could well be an excuse to curb its powers,” he said.

The Scottish government’s kneejerk reaction to the decision of the UK Supreme Court had been a huge mistake, he added.

“To present a Bill at 9am, to debate at 2pm and to legislate at 7pm for an Act which restricted fundamental, centuries-old appeal rights in Scotland was unfortunate, to say the least. There was no emergency with Cadder,” he said.

A Scottish government spokesman said it was essential for the Justice Secretary to act immediately the Supreme Court had ruled that Scottish law was incompatible with European law, and the Act was entirely a response to the Cadder ruling.

“It is beyond question that there was need for legislation that was compliant with the ECHR,” he added.

1 comment:

  1. I have to laugh at some of the sentiments being expressed by those operating within the legal establishment, to the effect, that it has nothing to do with them, and 'there was no emergency' - whereas to an outsider it had everything to do with them, and the fact that a ruling in another country had to happen before there was a reaction to address the non-compliance with the ECHR, shows that all too plainly.
    If someone, being processed in the system, has to come out of that system, to complain that those operating the system are not operating the system properly, then the person responsible for making sure the system is compliant, in this case with ECHR, is incompetent.
    The Supreme Court Lord's comment was an indirect jibe at this incompetence, when he expressed surprise that everyone was prepared to go along with the situation for years, and not escalate the issue of apparent divergence with ECHR on detention practice.
    And now, in their haste, if they have made a ham-fisted job of the new legislation... well, this is what happens when you're flying by the seat of your pants - errors are compounded.
    Someone, somewhere is incompetent. Who is it?