Thursday, 1 March 2012

MacAskill: Bomber’s appeal may go ahead

[This is the headline over a report (behind the paywall) in today’s edition of The Times.  It reads in part:]

A Scottish court could yet hear another appeal against the conviction of the Lockerbie bomber, the country’s Justice Secretary disclosed yesterday.

Kenny MacAskill, in a statement at Holyrood in which he vehemently rejected claims that he had raised the prospect of doing a deal with Abdul Baset Ali al-Megrahi, said that such an appeal could be made before or after al-Megrahi’s death and could come from the Libyan himself, his family or campaigners who claim he is innocent.

An application would have to be made through the Scottish Criminal Cases Review Commission (SCCRC) who would refer it to the High Court.

It would then be up to the court to accept or refuse the application for appeal. The SCCRC has already decided that there are grounds for a further appeal, but it has not yet published its reasons for that finding.

If al-Megrahi dies before an appeal is heard, it could be taken forward under section 303A(3) of the Criminal Procedure (Scotland) 1995 Act, which would enable his family to apply to the court to have the right of appeal transferred to them. (…)

Mr MacAskill also said the Parliament would want to know whether there was a mechanism for an appeal still to be heard, even posthumously. “I can confirm that there is. It would involve an application being made for a further reference by the SCCRC, the Commission deciding to make a reference and for the High Court to accept such a reference,” he said.

“These, of course, are not matters for me as Justice Secretary to decide upon. It is not for me to either seek or oppose a potential appeal, posthumous or otherwise.” That, he said, was a matter for others, but he would have “every confidence” in the Scottish criminal justice system if there was to be another appeal. “That is a matter I would be entirely comfortable with.”

Legislation going through the Scottish Parliament later this year will allow the SCCRC to publish its statement of reasons for finding grounds for appeal. However, the SCCRC would still have to obtain clearance from the Ministry of Justice in London because of the potential for publication to breach data protection laws.

Mr MacAskill said that he had written to Ken Clarke, the Justice Secretary in the Westminster coalition, “urging him to make a decision for an exception to be made to the normal statutory data protection rules for this unique case”.

It is understood that Mr Clarke’s department is still receiving legal advice on whether the full SCCRC report can be published or whether parts of it may have to be redacted to comply with data protection legislation.

[The possibility of a further appeal after Mr Megrahi’s death is an issue that has been dealt with in this blog, for example here.]


  1. Is there really a possibility of another appeal while Megrahi is still alive? I'm not convinced his death is so imminent now, and we could have to wait another few years for a posthumous appeal.

    I have always thought the Libyan government under Gaddafi was very reluctant to see any more Lockerbie truth come out, and may even have pressurised Megrahi to drop his second appeal. Recent developments strengthen that suspicion. However, there's a different regime there now, and perhaps less reluctance to see the whole affair raked over again.

  2. There is no legal bar on another SCCRC application while Megrahi is still alive. But my view is that the SCCRC would reject any such application (as not being in the interests of justice) unless it came from the convicted person himself while he remains in the land of the living. And Megrahi has (understandably) said he does not intend to apply again. Even if the SCCRC did allow a third-party application, I'm sure the High Court would refuse to hear the appeal (on this same ground) under the new powers conferred on it by the Cadder emergency legislation. Realistically, in my view, the only chance of another appeal is after Megrahi's death.

    I suspect that the new regime would not be supportive of Megrahi's family if they tried to launch a new appeal after his death (and they certainly wouldn't fund it in the way the Gaddafi regime did). Their interest seems to be in saying Lockerbie was a Gaddafi operation though, of course, they haven't come up with any of the promised evidence.