Tuesday, 21 October 2008

Transfer of rights of appeal

Given that the mills of the Scottish criminal justice system grind exceeding slow, it seems worthwhile to consider what the legal position would be if Abdelbaset Megrahi were to succumb to his illness before the current appeal has been decided.

In such circumstances, the provisions in the Criminal Procedure (Scotland) Act 1995, section 303A, relating to the transfer of the rights of appeal of a deceased person, would come into play. This section reads:

'(1) Where a person convicted of an offence has died, any person may, subject to the provisions of this section, apply to the High Court for an order authorising him to institute or continue any appeal which could have been or has been instituted by the deceased.

'(2) An application for an order under this section may be lodged with the Clerk of Justiciary within three months of the deceased’s death or at such later time as the Court may, on cause shown, allow. (...)

'(4) Where an application is made for an order under this section and the applicant—

(a) is an executor of the deceased; or

(b) otherwise appears to the Court to have a legitimate interest,

the Court shall make an order authorising the applicant to institute or continue any appeal which could have been instituted or continued by the deceased; and, subject to the provisions of this section, any such order may include such ancillary or supplementary provision as the Court thinks fit.

'(5) The person in whose favour an order under this section is made shall from the date of the order be afforded the same rights to carry on the appeal as the deceased enjoyed at the time of his death and, in particular, where any time limit had begun to run against the deceased the person in whose favour an order has been made shall have the benefit of only that portion of the time limit which remained unexpired at the time of the death.

'(6) In this section “appeal” includes any sort of application, whether at common law or under statute, for the review of any conviction, penalty or other order made in respect of the deceased in any criminal proceedings whatsoever.'

Were Abdelbaset Megrahi to die before the conclusion of the appeal, it seems probable that resort would be made to this procedure and that the appeal would continue. But in simple humanity, surely all concerned in the current proceedings should strive to the utmost to secure that the appeal proceeds with the greatest possible expedition, in order to render resort to the transfer procedure superfluous.

Lockerbie bomber diagnosed with prostate cancer... and could now be moved from his cell to 'a more comfortable environment'

This is the headline over a lengthy story, in which the source of the newspaper's information remains undisclosed, in today's issue of the Daily Mail. It speculates about the stage which the disease has reached and the possibility of Abdelbaset Megrahi's being moved from Greenock Prison to a more suitable treatment location.

The full article can be read here.

If the story is true, it provides a further reason for the High Court to stamp firmly on the obstructionist tactics of the Crown in the ongoing appeal and to insist on a full hearing at the earliest possible date.

The BBC News website has a short article on the subject, with confirmation of the diagnosis from Mr Megrahi's solicitor, Tony Kelly.

Saturday, 18 October 2008

High Court decision on Lockerbie case is to be welcomed

This is the headline over a letter in today's issue of The Herald from Dr Jim Swire. It can be read here.

Thursday, 16 October 2008

Monkey business?

Your vigilant reporter noticed at yesterday’s session of the High Court in Edinburgh that Dr Jim Swire was wearing only one hearing-aid and not his normal two. Perhaps the hearing in one ear had dramatically improved, I thought. Regrettably not. What happened was that while the intrepid Dr Swire was walking recently along a jungle trail in Sarawak, one of his hearing-aids mysteriously went missing. Was it purloined by a proboscis monkey, appropriated by an orang-utan or simply lassoed by a liana? Yet another Lockerbie-related mystery.

Wednesday, 15 October 2008

Lockerbie bombing families step up calls for full enquiry

This is the headline over a story posted this afternoon on the website of The Scotsman. It reads in part:

'Speaking after today's hearing, Dr [Jim] Swire said: "[It is proposed to draft] a letter [calling for a full enquiry] which we will be asking various notable people to sign on behalf of the relatives. It defines why we are still impatient with what has been revealed to us so far.

'"We have always called for a comprehensive inquiry and one of the great areas of irritation is the question of why the disaster was not prevented and why our loved ones were allowed to be murdered."

'He added: "In addition to that there are questions surrounding the conduct of the case, the conduct of the investigation, the role of the Scottish authorities in the investigation and the role of both the British and US authorities in the drawing up of evidence."

'Dr Swire said in the years since the tragedy the families had met many people who had shown a "heartening interest" in the case.

'"We hope many of them will be prepared to sign a letter which basically will call for a thorough inquiry into all the questions that are still outstanding surrounding this terrible case.

'"We anticipate that letter would then be published, on or around the 20th anniversary."'

The full text of the article can be read here.

Did the SCCRC give 5 or 6 reasons?

The High Court in today's Opinion refers to the Scottish Criminal Cases Review Commission's having given five reasons for deciding that Abdelbaset Megrahi's conviction may have been a miscarriage of justice. The SCCRC itself said that there were six reasons (para 2.8 of the SCCRC press release) though it itemised only four. What is the explanation for the discrepancy? I believe it to be the following.

The SCCRC counted (a) the failure of the Crown before the Zeist trial to hand over to the defence the mysterious document(s) in respect of which public interest immunity has now been claimed by the UK Foreign Secretary and (b) the evidence contained within that document as two separate reasons. It looks as if the High Court is lumping these two aspects together and counting them as amounting to only one single reason.

Comprehensive victory for appellant

The High Court has totally rejected the Crown's contention that, as a matter of law, the appellant was entitled to argue only those grounds of appeal that formed the basis of the Scottish Criminal Cases Review Commission's decision to refer Abdelbaset Megrahi's case back to the court. It was always accepted by the appellant's legal team that the court had a discretion to reject any individual proposed ground of appeal (eg on the basis that it appeared on the face of it to be unarguable). But this was not good enough for the Crown, who insisted that it was a matter of law that the only grounds that the appellant was entitled to advance and entitled to have heard were those accepted by the SCCRC. It was in order to achieve such a ruling (which would have been contrary to decisions of the court in earlier cases) that a bench of five judges had to be convened. The Crown's argument has been unanimously (and, with respect, correctly) rejected by all five judges.

The Herald reports Tony Kelly, Mr Megrahi's solicitor, as saying:

"It is a complete victory for the appellant's position before the court and a complete rejection of the Crown's argument.

"The Crown employed lots of resources to try to restrict the court and they have been stopped in their tracks.

"It is an important victory for Mr Al Megrahi."

The following is an official summary of the court's Opinion. The full 83-paragraph Opinion can be read here.

SUMMARY

The Scottish Criminal Cases Review Commission has referred to this court the case of Abdelbaset Ali Mohamed Al Megrahi. The reference document runs to 790 pages. In it detailed consideration is given to a wide range of representations made on behalf of the applicant (the present appellant), as well as to the Commission's own investigations. Some of these representations found favour with the Commission; others did not. In making the reference the Commission identified five reasons which led it to believe that a miscarriage of justice may have occurred. These reasons are set out in Chapters 21 to 25 inclusive of the reference document.

The appellant has, within the time limit specified by the Act of Adjournal, lodged grounds of appeal. These run to 317 pages. They include (sometimes reformulated) matters considered by the Commission but not included in its reasons for making the reference; they also include matters not raised with or discussed by the Commission.

The Crown contends that the appellant can not, as of right, require the court to entertain the full grounds of appeal lodged by him. While it is accepted that the court may, in the exercise of its discretion, entertain any of the grounds tabled, it is contended that the appellant is not entitled to have entertained grounds going beyond the reasons stated by the Commission in their reference. The debate which we heard was concerned with discussion of that contention.

The court has heard wide-ranging submissions from the Crown and from the appellant's counsel. The issue is one of statutory construction - in particular, the meaning and effect of section 194B(1) of the Criminal Procedure (Scotland) Act 1995, as amended by the Crime and Punishment (Scotland) Act 1997. The arguments advanced by the parties and the court's discussion of them are fully set out in the Opinion of the Court which is now available. The court's conclusion is that, for the reasons given, it rejects the statutory construction urged by the Advocate depute and holds that the appellant is entitled to have his stated grounds of appeal decided by the court on their respective merits. The mechanisms which the court will adopt for the purpose of making such an adjudication will require to be considered in due course. Whether it is desirable, having regard to among other things the use of judicial resources, that a reference appellant should have unrestricted scope in what he lays before the court for adjudication is a matter for Parliament; but this court must apply the statute as presently framed.

The court will put the case out for a procedural hearing at which it will consider parties' proposals for the management of this complex appeal.

The "scope of the appeal" decision

It has been announced that the High Court's decision on the scope of the appeal will be issued at 12 noon today. The question whether the appeal should be confined to the six issues on which the Scottish Criminal Cases Review Commission held that Abdelbaset Megrahi's conviction might have constituted a miscarriage of justice was argued before five judges over four days from 17 to 20 June 2008.

Monday, 13 October 2008

Law Officers to join Faculty of Advocates

Elish Angiolini QC , the Lord Advocate and Frank Mulholland QC, the Solicitor General for Scotland, are to become members of the Faculty of Advocates.

In a statement issued today the Faculty said: “The Dean of the Faculty of Advocates Richard Keen QC, is pleased to announce the prospective admission to membership of the Faculty of Elish Angiolini QC, the Lord Advocate and Frank Mulholland QC, the Solicitor General.

“Mrs Angiolini and Mr Mulholland have played a leading role in the legal profession for a number of years and it is entirely appropriate that they should join the Faculty with its long tradition of service to the justice system and the people of Scotland.”

They will be formally admitted to membership of the Faculty at a calling ceremony on November 7.

A spokesperson for the Crown Office and Procurator Fiscal Service said:

"Mrs Angiolini and Mr Mulholland are honoured to have been invited to apply to join the Faculty of Advocates, which is highly respected for its central role in delivering independent legal services in Scotland."

[From the website of Scottish lawyers' magazine, The Firm. The Dean of Faculty, Richard Keen QC, was senior counsel for Lamin Fhimah, the acquitted co-accused in the Lockerbie trial at Camp Zeist. There is an interesting article on Mrs Angiolini's forthcoming membership of the Faculty of Advocates, and the possible reasons for it, on The Scotsman website.]

Tripoli Post on payment into compensation fund

The website of The Tripoli Post (Libya's English-language newspaper) has an article on the payment recently made into the compensation fund set up after negotiations in August between the United States and Libya. The article reads in part:

'Libya has started making payments into a $1.8 billion fund to compensate the families of Libyans who were killed by American air strikes on Libya in 1986 and American victims of alleged terror attacks in the 1980s.

'The US State Department said Thursday that the US "received a substantial amount of money" without saying how much. The amount was deposited on Wednesday night.

'The Libyan acted to fulfill a compensation agreement that was signed earlier this year.

'The agreement calls for the creation of a $1.8 billion fund: $1.5 billion for those victims.

'Libya has sought donations from private businesses to help cover its share of the fund. (...)

'Libyan officials said in the past that by paying such high compensations they were buying peace. They have also insisted that Libya had nothing to do with the bombing of the 1988 PanAm airplane over Lockerbie, England [sic].

'Legal experts around the world including in the US and Britain said that the convicted Libyan in the Lockerbie bombing, Abdulbaset El-Megrahi, was innocent and that the Scottish court that sentenced him to life in prison did commit a miscarriage of justice.'

The full article can be read here.

Saturday, 11 October 2008

Eighth (public) procedural hearing on 15 October

A further procedural hearing in the ongoing Lockerbie appeal will take place in the High Court of Justiciary on Wednesday, 15 October 2008. Perhaps the opportunity will be taken for the court to announce its decision on the issue of the scope of the appeal (ie whether it must be limited to the six grounds on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice). This matter was argued on 17 to 20 June 2008 and the court’s decision reserved.

The first in the seemingly endless series of procedural hearings took place on 11 October 2007, one year ago. I repeat what I wrote on this blog on 17 July 2008:

More than a year [now more than fifteen months] has passed since the Scottish Criminal Cases Review Commission referred Abdelbaset Megrahi’s case back to the Criminal Appeal Court on the basis that his conviction might have amounted to a miscarriage of justice. More than nine months [now more than twelve months] have passed since the first procedural hearing in the new appeal was held. More than six months [now more than nine months] have passed since the appellant’s full written grounds of appeal were lodged with the court.

Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?

The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze isn’t in the book, have been asking the court to rewrite the book to insert it). The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done nothing meaningful to curb it. This must end. The delay is becoming scandalous. The reputation of Scotland’s criminal justice system is being further tarnished in the eyes of the world.

And all the while a man languishes in Greenock Prison. I have never made any bones about my view that the conviction of Abdelbaset Megrahi on the evidence led at the Scottish Court in the Netherlands is the worst Scottish miscarriage of justice in the past one hundred years, indeed since the conviction of Oscar Slater. But even those who do not share my views, or who are neutral on the issue, would surely accept that the delay in bringing the new appeal to a hearing on the merits is beginning to look cruel and unconscionable.

It is up to the judges to start cracking the whip. The words of Francis Bacon in his essay “Of Judicature” are perhaps worth recalling:

“A judge ought to prepare his way to a just sentence, as God useth to prepare his way, by raising valleys and taking down hills: so when there appeareth on either side an high hand, … cunning advantages taken, combination, power, … then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.”

Friday, 10 October 2008

US-Libyan relations after the funds transfer

The website of the US Department of State contains a transcript of a question and answer session on US-Libya relations held yesterday by Assistant Secretary of State for Near Eastern Affairs, C David Welch. It can be read here.

One of the questions Mr Welch was asked was whether non-US Lockerbie relatives would receive payments out of the fund. Here is what he said:

'In the case of the court cases in the United States, the Administration is only authorized, constitutionally and under our law, to address cases of Americans or American nationals. However, the Pan Am settlement is part of this in the sense that it’s an existing settlement which included, you’re correct, non-Americans, for example, people in Scotland on the ground. And they would be embraced by the settlement amounts contemplated on the, if you will, American side of the ledger.'

Thursday, 9 October 2008

US says Libya puts "substantial" money in fund

The Reuters Africa website reports that a US official has stated that Libya has deposited a substantial amount of money (though not yet the full agreed amount) in the compensation fund for, amongst others, the relatives of those killed in the Lockerbie disaster. The first few paragraphs of the report read:

'Libya has deposited a "substantial" sum of money into a compensation fund for victims of terrorism but payments cannot be made until Tripoli gives the remaining agreed amount, a senior U.S. official said on Thursday.

'"We have received a substantial amount of money in a U.S. account towards compensating the U.S. victims and families with terrorism-related claims against Libya," said the official, who declined to be named.

'He refused to say how much money the Libyans had handed over but the fund is estimated eventually to total about $1.8 billion. It was agreed on in August by the United States and Libya to settle terrorism cases on both sides from the 1980s.

'"We believe that direct deposit of these funds into a U.S. account is evidence of Libya's commitment to fully implementing the claims settlement agreement," the official told reporters.'

The full article can be read here.

Wednesday, 8 October 2008

Democrats battle Bush over Libyan relations

This is the headline over an article on The Hill, a news website devoted to matters relating to the US Congress. The first few paragraphs read:

'Senate Democrats and the Bush administration continue to butt heads over Libya despite a historic, multibillion-dollar deal that settled claims made against the government of Moammar Gadhafi by terrorist victims’ families.

'The problem, according to lobbyists for the families, is that Libya has yet to pay into a $1.8 billion fund that was to be shared by the victims’ families. Libya agreed to set up the fund in exchange for victims’ families dropping lawsuits against the Libyan government.

'Representatives of the families argue the White House should not be cozying up to Libya when that country is not living up to its side of the bargain. They are turning to their allies in Congress to turn up the pressure on the administration.

'The families and members of Congress are irritated with Secretary of State Condoleezza Rice’s September trip to Libya, the first visit in a half-century by a sitting secretary of State. They’re also unhappy that an assistant secretary at the Commerce Department went to Tripoli last week to help set up a commercial office in the country.'

The full text can be read here.

Gaddafi ‘not excited’ about coming UK visit

From a letter in today's issue of The Herald from a press officer at the Libyan People's Bureau (embassy) in London:

"It is worth mentioning that the Leader is not overly excited about visiting the United Kingdom, either for the coming Oil Summit, or otherwise, and that the Lockerbie case file is closed for ever, according to the relevant United [Nations] Security Council resolutions. The remaining aspect is the legal position regarding the Libyan national, Mr Abdelbaset Ali Mohmed al Megrahi, who is still awaiting a decision regarding his second appeal, which was granted by the Scottish Criminal Cases Review Commission (SCCRC)."