[On this date in 2009, while Abdelbaset Megrahi’s second appeal was ongoing, the Libyan Government submitted to the Scottish Government an application for his transfer to Libya under the Prisoner Transfer Agreement between Libya and the United Kingdom that had come into force on 29 April 2009. A report on the BBC News website can be read here.
What follows is what I wrote on this blog about the law applicable to the transfer of Megrahi back to Libya on the day the PTA was ratified:]
Prisoner transfer: the relevant legal provisions
The relevant provisions of the prisoner transfer agreement between the United Kingdom and Libya which was ratified today are as follows:
“Art 2(2): A person who has received a liberty depriving sentence in the territory of one Party may be transferred to the territory of the other Party, in order to complete the sentence imposed upon him. To that end he may express his interest to the transferring State or to the receiving State in being transferred under this Treaty.
Art 2(3): Transfer may be requested either by the transferring State or the receiving State.
Art 3: A prisoner may be transferred under this Treaty only if the following criteria are met: (...)
(b) the judgment is final and no other criminal proceedings relating to the offence ... are pending in the transferring State; (...)
(e) the transferring and receiving States agree to the transfer.”
The relevant UK legislation, which the Scottish Government would have to apply in the case of Mr Megrahi, used to be the Repatriation of Prisoners Act 1984 (c 47), section 1 of which provided:
“(1) Subject to the following provisions of this section, where—
(a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country of territory outside the British Islands of persons to whom subsection (7) below applies, and
(b) the relevant Minister [defined, in the case of prisoners in Scotland as "the Scottish Ministers"] and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of a particular person (in this Act referred to as “the prisoner”), and
(c) the prisoner has consented to being transferred in accordance with those arrangements
the relevant Minister shall issue a warrant providing for the transfer of the prisoner into or out of the United Kingdom.”
This provision requiring the prisoner's consent was removed in 2006, but it is abundantly clear that, irrespective of the wishes of the UK, Scottish and Libyan authorities, Megrahi cannot in fact be transferred back to Libya without his consent since he cannot be transferred without his current appeal being abandoned and no-one but Megrahi can instruct the abandonment of that appeal.