This is the heading over a letter by Roger Salvesen in today's edition of Scotland on Sunday. It reads as follows:
'Your editorial contains the words "Any decision to free the prisoner…" (Leader, 10 May). As I understand it the possible transfer of Megrahi to Libya under the recently signed agreement between Libya and the UK allows a prisoner of Libyan nationality, convicted and imprisoned in the UK, to be transferred to Libya after a certain time spent in a UK jail to serve out the rest of his sentence in a Libyan prison, and that is not the same as freeing the prisoner.
'Perhaps imprisonment for Megrahi in Libya would be different from, perhaps better than, the conditions he experiences in Greenock, but there have been precedents in the past where Britons found guilty and imprisoned abroad have been transferred to the UK to serve the remainder of their sentences in UK prisons.
'Your editorial talks about a question mark hanging over Scottish justice. I would agree that this must be avoided at all costs, but there seem to be many obstacles which might be in the way of achieving this. The jurisdiction of the Scottish Appeal Court requires Megrahi to be physically present in Scotland during the duration of the appeal, which might take a year to come to a conclusion.
'It seems to me to be absolutely vital that the new information which the Scottish Criminal Cases Review Board has provided for the current appeal must somehow be brought into the public domain. At the moment it seems that Megrahi must abandon his appeal if he is to obtain his wish to be transferred to Libya and so the information would not be revealed. What would happen if he decides to stay in Scotland but dies before the court can deliver a judgment? Would any new evidence which hadn't been presented by then be lost? We know now that new evidence is available and it seems to me that, to preserve the reputation of Scottish justice, means must be found to present and test this so that the Appeal Court can deliver a judgment on whether the original conviction was safe. This is too important to founder on a technicality.'
If Mr Megrahi were to die during the course of the appeal, it would be possible for any person with a legitimate interest (eg his wife or his children) to apply to the court to be allowed to continue the appeal. This issue is dealt with in an earlier post on this blog which can be read here.
The Sunday Express today runs a story featuring the views of Daniel Kawczynski MP, chairman of the all-party Libya group in the UK Parliament. He contends that there should be no question of Mr Megrahi's returning to Libya until that country resumes cooperation with the UK police investigating the shooting of WPC Yvonne Fletcher outside the Libyan People's Bureau in London on 17 April 1984. The article reads in part:
'Foreign Secretary David Miliband has been accused of abandoning the bid to nail the killer of WPC Yvonne Fletcher, shot dead by a Libyan diplomat 25 years ago.
'Tory MP Daniel Kawczynski said the Foreign Office was now afraid to “rock the boat” over the notorious murder, for fear of jeopardising lucrative trade deals with Colonel Gadaffi’s regime. (...)
'Mr Kawzcynski, who is in close contact with the Fletcher family, said the British government should withdraw a deal that could see the Lockerbie bomber returned to Libya until co-operation with the police is restored. (...)
'Under the terms of the prisoner transfer agreement signed this month, cancer-stricken Abdelbaset Al Megrahi, who was convicted of the murder of 270 people at Lockerbie, could be returned to Tripoli.
'Mr Kawzcynski said: “If he is to be returned then the British government should be seeking the killer of Yvonne Fletcher in exchange.
'“The Libyans are not being given enough incentive to co-operate.”
'A spokeswoman for the Foreign Office last night insisted that securing full co-operation with Libya over the investigation remained “a key objective in our relations”.
'She added: “The Government is conscious that the investigation into the murder of WPC Fletcher has not moved forward as quickly as we had hoped and remains unsolved.
'“We continue to make every effort to engage with the Libyan government on this issue and repeatedly raise the case during high-level bilateral visits. We are very aware of the terrible pain caused by Libya’s actions in the past, not least to the Fletcher family.”'
Given the circumstances surrounding Mr al-Megrahi's health, it is worth referring to an earlier piece by Professor Robert Black, see:
ReplyDelete21 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...............
My reading of '(4) (B) indicates that it may be within the bounds of possibility for the victims' families (such as Dr Swire and others) who support Mr al-Megrahi's innocence to carry on the appeal should he die prior to its outcome.
Quincey Riddle (aka Robert Forrester).