Concerns gleefully swept under the carpet

[What follows is an item that was originally posted on this blog on this date in 2009:]

The waiting game

This is the headline over my column in the July issue of the Scottish lawyers' magazine The Firm. It reads as follows:

It took three years for the SCCRC to conclude that Abdelbaset Ali Mohmad al- Megrahi may be the victim of a miscarriage of justice, and a further two years will have passed before his appeal is heard, by which time he may have died. Professor Robert Black QC calls on the Scottish authorities to show some courage before it is too late.

Abdelbaset al-Megrahi should never have been convicted for the Lockerbie atrocity. His conviction, on the evidence led at the trial, was nothing short of astonishing. It constitutes the worst miscarriage of justice perpetrated by a Scottish criminal court since the conviction of Oscar Slater in 1909.

It should never be forgotten that one crucial ground on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice in Megrahi’s case, was its view that no reasonable court could have reached the conclusion that the trial court did, on a matter absolutely central to its reasons for convicting.

The delay in bringing Megrahi’s current appeal to the hearing stage has been scandalous. Had a modicum of urgency been shown, it is entirely conceivable that the appeal could have been over before now and the appellant back with his wife and children in his own country, a free man. The SCCRC had his case under consideration for more than three years before referring it back to the High Court. But the issue of the trial court’s unreasonable findings is a very simple and straightforward one and required virtually no investigation other than a perusal of the relevant portions of the transcript of evidence. If the SCCRC decided early in its deliberations that the case was going to have to be referred back on this ground – and it is difficult to believe that it did not – then delaying taking that step for three years is hard to justify.

Then there is the delay that has occurred after the SCCRC referred the case to the High Court in June 2007, attributable in large part to the Fabian tactics of the Crown and the spurious public interest immunity claims of the UK Foreign Office. Two whole years have passed since the SCCRC reference. Eighteen months have passed since the appellant’s full written grounds of appeal were lodged with the court. And it was only at the end of April 2009 that the first tranche of the appeal was heard. On the leisurely timetable that the appeal court has set, it would require a minor miracle for the proceedings to be concluded by the twenty-first anniversary of the disaster in December 2009.

What makes all of this worse is that the appellant was diagnosed in October 2008 with terminal, late-stage prostate cancer. His condition has recently deteriorated to such an extent that he was unable to attend court for the first tranche of the appeal or, indeed, comfortably to follow the proceedings over the TV link that had been set up.

The recently lodged prisoner transfer application would enable him to return to Libya to spend his remaining weeks with his wife, children, aged mother and siblings, which is – understandably – now his overriding priority. But, for prisoner transfer to be granted by the Scottish Government, Megrahi would have to abandon his appeal. This, clearly, would bring joy to the hearts of the Crown Office and the Scottish Government Justice Department. The manifold concerns over the Lockerbie conviction could be gleefully swept under the carpet and the pretence maintained that the system had worked perfectly and a guilty man had been justly convicted.

However, there is another course of action open to the Scottish Government, if Ministers have the strength of will and character to withstand the pressure of civil servants assiduously punting the prisoner transfer option. That course of action is compassionate release. This would enable Megrahi to be freed on licence and return to Libya. His appeal would run to its natural conclusion. If he died before the appeal court reached its decision, the appeal could be transferred to his executor or any person having a legitimate interest.

The Scottish public interest demands nothing less than that the concerns over Megrahi’s conviction be ventilated fully in court. Compassionate release provides the only mechanism whereby this can be achieved alongside the humanitarian goal of allowing him to die at home. Have Scottish Ministers the wisdom and the courage to embrace it?

[Compassionate release was indeed applied for and was ultimately granted by Kenny MacAskill. But he insisted -- quite wrongly -- on dealing with prisoner transfer and compassionate release concurrently, the consequence of which was that Megrahi had to abandon his appeal in order to satisfy the legal requirements for prisoner transfer: see Doomed from the outset.]