Non nobis solum nati sumus ortusque nostri partem patria vindicat, partem amici: in memoriam Alan Rodger

To the sombre magnificence of St Giles in Edinburgh on the cold wet evening of Friday 26 November 2011 for a memorial service in honour of Lord Rodger of Earlsferry; then on to a dinner in the opulent splendour of the Signet Library.  Both events attended by a legal galaxy from not only the United Kingdom but also continental Europe.  The fine formal tributes at each part of the event moved their hearers in different ways, and left your correspondent with a deeper understanding of the threads of rich friendships running through Alan's multi-faceted career.  The Ciceronian line on the cover of the order of service was indeed apt: "non nobis solum nati sumus ortusque nostri partem patria vindicat, partem amici."

The service, conducted by the Very Rev Gilleasbuig Macmillan, Minister of St Giles, took a strongly traditional Christian approach, with the choir and organ of St Giles in fine form, the congregation rendering Psalm 100 and two hymns ("O God, our help in ages past"; and "For all the saints", the latter Alan's favourite, as we were told at the funeral), and two scriptural readings by Lord Cullen of Whitekirk (Proverbs 4: 1-9 ["Listen, my sons, to a father's instruction, consider attentively how to gain understanding"]) and Lord Mackay of Clashfern (Epistle to the Romans 8: 31-39 ["If God is on our side, who is against us?"]).

The eulogies came from Colin Mackay, TV and radio broadcaster, and friend of Alan from earliest schooldays as well as at Glasgow University, and Sir David Edward, friend and colleague from the time Alan entered the Faculty of Advocates in 1972.  Both drew not only on their personal recollections but also on what is obviously a rich resource in Alan's letters to his family.  From Colin we learned of the links between Alan's father and "King John" MacCormick, leading Scottish nationalist and of course father of another sadly departed friend in the law.  We were also entertained by an image of Kelvinside Academy pupils in 1953 being made by one of their teachers to scratch out the second "I" of "Elizabeth II" on their Coronation commemoration pencil-cases.  Who knows what effect this had on Alan's views about Scottish nationalism?  At any rate, later on as a student on Gilmorehill, as well as honing debating skills at the University Union, he formed with others the Glasgow University Royalist League (GURL) which invited membership from a host of obscure European royals – with what success we were not told. 

In a fine and thoughtful speech which we may hope to see in print as the Royal Society of Edinburgh memoir of its subject, David Edward rightly emphasised Alan's interest in the practical solutions to problems as one of the keys to understanding his motivations in life, and also his lack of interest in the generalisations he saw as coming from legal philosophy and sociology.  On this problem-solving basis David explained Alan's decision to leave academic life in Oxford and go to the Scottish Bar in 1972: he had solved a big problem in Roman law and did not see fulfilment in exploring new, lesser problems from the Roman law chair that might otherwise have been his.  Your correspondent wondered a bit about this, since Alan went on solving Roman law problems all his life long.  The fact of the matter is that the chairs of Roman law that might have interested Alan (Oxford, Glasgow, Cambridge, Edinburgh, Aberdeen, UCL) were in 1972 all occupied by men who are (with one exception – Tony Thomas, who died early, in 1981) still alive today, albeit each for some time retired (i.e. Honore, Gordon, Stein, Watson, MacCormack); so the prospects for advancement in the subject forty years ago were not obviously good, no matter how able the candidate.  Also, Alan's great mentor David Daube (who in general should perhaps have been more mentioned in the tributes) had left Oxford in 1970 for California, while in 1972 Alan's father was taken seriously ill back home in Glasgow.  The last may also have been a factor for one so close to his family in choosing the Scottish over the English Bar. 

David Edward's moving account of a long friendship aptly closed with William Johnson Cory's translation of Callimachus of Cyrene's poem on learning of the death of his friend Heraclitus:

They told me, Heraclitus, they told me you were dead,
They brought me bitter news to hear and bitter tears to shed.
I wept as I remembered how often you and I
Had tired the sun with talking and sent him down the sky.

And now that thou art lying, my dear old Carian guest,
A handful of grey ashes, long, long ago at rest,
Still are thy pleasant voices, thy nightingales, awake;
For Death, he taketh all away, but them he cannot take.

The shorter speeches at the dinner were five in number, including a short introductory and highly entertaining reminiscence from Alan's younger brother Ian.  He told three revealing stories: one about the law student advising the local minister on the source of the law against dogs performing natural functions in the street; another about the New College don advising an "insufferable" visitor that the best way to get to Heathrow from Oxford was by taxi; and the third about the law officer successfully ordering queue-jumping military personnel to get to the back of the line in a motorway service-station.  The last recalled for your correspondent an earlier vignette in Colin Mackay's tribute, with the schoolboy Alan proclaiming, arms akimbo, "That's not fair!", and carrying his point.

The four post-dinner sketches were provided by John Galloway, a colleague in Alan's time at New College and a friend ever since.  Perhaps his most revealing vignette was Alan visiting a Cornish museum and correcting its presentation of Britain's imperial history, which he saw as matter for pride rather than shame.  Lord Brown of Eaton-under-Heywood spoke as a judicial colleague from 2004 in, first, the House of Lords and then the Supreme Court; it seems that their Lordships pass notes to each other commenting on what passes before them during counsels' arguments, not always kindly.  Lord Mackay of Drumadoon told of his time as an assistant at Allan McDougall & Co when Alan was a Bar apprentice there, and also as flatmates in those early days; and then of his much later spell as Solicitor General for Scotland when Alan was Lord Advocate, emphasising his strengths as the leader of the Crown Office and the Lord Advocate's Department.  George Moore QC had been a junior classmate at Glasgow who had been encouraged by Alan to pursue Honours in Roman law; a perfect imitation of Alan saying "You MUST do it! You must do it!"  It also appeared that the co-founder of the GURL (above) had also been a member of the Liberal Club at Glasgow University. 

David Edward and Lord Brown both quoted from Alan's remarkable judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 in which he and David Hope led a unanimous Supreme Court in holding that homosexual asylum seekers should be granted refugee status if going home would result in them being forced to conceal their sexuality.  The passage by which your correspondent was most affected is at para 77:

"At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable."

For all Alan's impatience with political correctness and "trendy sociology", also noted more than once during the tributes, he was a humane and socially liberal observer of the world in which he lived.  As the huge attendance at service and dinner showed, his human qualities as well as his intellect and scholarship attracted a very wide range of people into his circle.  David Edward's invocation of Johnson Cory's lines as well as the Ciceronian strapline for the service well expressed what was felt by everybody present.

 

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Supreme Court upholds pleural plaques legislation

The UK Supreme Court has unanimously upheld the validity of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 against the challenge to it made by insurance companies.  The judgments are very important discussions, not only about the Scottish Parliament's legislative competence but also about its subjection to judicial review.

The Court's press release reads as follows (references in square brackets are to paragraphs in the judgment; the Rothwell case is Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 29, the decision that pleural plaques did not constitute an actionable harm which the 2009 Act seeks to reverse):

JUDGMENT
The Supreme Court dismisses the appeal and allows the cross-appeal by the third to tenth respondents. The leading judgments were given by Lord Hope and Lord Reed, with whom the other justices agreed.

REASONS FOR THE JUDGMENT
The Court holds that the appellants are entitled to bring these proceedings under the Convention as the effect of the 2009 Act is that they would be victims for the purposes of article 34 and that the amount of money the appellants would be required to pay is a possession for the purposes of Article 1 Protocol 1 of the ECHR [28], [112-114]. Therefore in order for the 2009 Act to comply with Article 1 Protocol 1, it must be shown that the Act is pursuing a legitimate aim and is reasonably proportionate to the aim pursued.  In issues involving questions of social policy, which this is, the Court should respect the judgment of the elected body as to what is in the public interest unless that judgement is manifestly without reasonable foundation [31] – [32]. It cannot be said that the judgement of the Scottish Parliament was without reasonable foundation [33], [125]. Therefore the Court accepts that the Act pursues a legitimate aim [41], [125]. It also considers that the means chosen are reasonably proportionate to the aim sought to be realised [41], [134]. The balance is correctly struck, first because the claims will only succeed if the asbestos exposure was caused by the employer’s negligence [37]. Second, the appellants’ obligation to indemnify inevitably entailed a risk that unforeseen circumstances would increase the burden of liability [38]. And third, because the Act can be seen as preserving the status quo prior to Rothwell [129]. It follows that the 2009 Act was not outside the legislative competence of the Scottish Parliament.

Nor can it be said that the 2009 Act was a result of an unreasonable, irrational and arbitrary exercise of the legislative authority [42]. The Court finds that in principle Acts of the Scottish Parliament are subject to judicial review but not on the grounds of irrationality, unreasonableness or arbitrariness.  The guiding principle is to be found in the rule of law. This is the ultimate controlling factor, and the courts must insist that it is respected by legislation that the Parliament enacts. But it would be wrong for the judges to substitute their views as to what is rational or reasonable for the considered judgment of the democratically elected legislature [47], [51] – [52], [148] and [153].

As to whether the third to tenth respondents are entitled to be parties, the test of “standing”, rather than the private law rule that title and interest has to be shown, is a more appropriate approach in judicial review proceedings [62], [171]. The third to tenth respondents have standing as they are “directly affected” by the appellants’ challenge to the 2009 Act [63] – [64] and [175].

 

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In Tripoli south of Lockerbie

As the Gaddafi regime in Libya was finally toppled in August 2011, so inevitably speculation also began about the implications for Abdelbaset al-Megrahi, the convicted Lockerbie bomber, the second anniversary of whose compassionate release from Greenock prison by the Scottish Government came and went as the insurgents reached Tripoli.

Megrahi had been filmed a couple of weeks before attending a pro-Gaddafi rally in Tripoli, apparently in a wheelchair, and it was also reported that he remained in regular contact with East Renfrewshire Council social workers (one of the conditions of his release).

The concatenation of events led to voices being raised, not only about a possible recall to prison in Scotland, but also, in the USA and especially on Fox News and the like, of capturing Megrahi and putting him on trial in America.  Presumably that might be less difficult in present conditions in Libya than finding and killing Osama bin Laden in Pakistan was earlier this year.

Scots Law News does wonder what legality might have to say about a US trial for Megrahi, given that he has already been convicted of the crime in question and neither the Scottish or the UK governments have for a moment suggested that the conviction has been over-turned.  Presumably the co-operation of the Crown Office would be needed as well to enable US prosecutors to get hold of the material evidence that would be needed for a trial with any pretensions to being one under the rule of law.

Finally there is the interesting question of whether in the ruins of the Gaddafi regime there will be found any further evidence about the plan to bring down Pan-Am 108.  The Crown Office has indicated that it continues to investigate the possible involvement of others beyond Megrahi.  Scots Law News rather suspects that the Gaddafi regime did not prioritise archiving its records, if indeed it kept very many, so that mystery is likely to remain – unfortunately meaning lots of room for speculation and more debate.  Some of it may be reduced, however, if the Scottish Government's planned Bill to enable publication of the Scottish Criminal Cases Review Commission report raising questions about the Megrahi conviction succeeds in passing the Scottish Parliament.

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Perjury, Tommy Sheridan and the News of the World’s end

As the storm over the phone-hacking methods of the News of the World intensified to the point where the newspaper's owners decided to close it on 7 July 2011, the Crown Office earlier the same day issued the following statement, which it appears most straightforward to give verbatim:

"CROWN OFFICE STATEMENT:  HM ADVOCATE V TOMMY SHERIDAN

FOR PUBLICATION OR BROADCAST

In light of emerging developments regarding the News of the World the Crown has requested Strathclyde Police to enquire into the evidence given by certain witnesses in the trial of Tommy Sheridan.

Strathclyde Police have been asked to make a preliminary assessment and to report to the Area Procurator Fiscal at Glasgow for consideration of any further action."

The Crown Office issued a further statement on 8 July:

ALLEGED TELEPHONE HACKING IN SCOTLAND

In light of further emerging developments regarding the News of the World the Crown has asked Strathclyde Police to consider and assess specific claims of phone hacking and breaches of data protection in Scotland.

Strathclyde Police will review available information and will liaise with the Metropolitan Police in relation to any Scottish dimension to their current investigations and will thereafter report their findings to the Area Procurator Fiscal at Glasgow.
 

All this may in due course raise an interesting legal question about the effect on the validity of a conviction, if any of the prosecution evidence in the case is found to have been perjured.

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Lord Rodger of Earlsferry (18 September 1944-26 June 2011)

Sad news of the death of Lord Rodger of Earlsferry on 26 June 2011.  He had been ill with the effects of a brain tumour since the early spring.

Alan Rodger was the greatest Scots lawyer of his generation as well as a highly distinguished scholar with an academic publications record that any full-time professor would have been proud of. And he was a highly stimulating and entertaining social companion.  He would have mocked the cliche, but he has been taken from us while still at the height of his remarkable powers.

The bare facts of Alan's glitteringly varied career can be simply told.  He was born and educated in Glasgow (Kelvinside Academy, Glasgow University) before moving to take a DPhil in Roman Law at Oxford under the supervision of Professor David Daube (previously of Aberdeen).  Daube became the most significant intellectual influence on Alan's thinking about and approach to law in general.  The DPhil thesis, published in 1972 as Owners and Neighbours in Roman Law, led first to a Junior Research Fellowship at Balliol and then to a Fellowship at New College, Oxford from 1970, during which time he began to publish on Scots as well as Roman law.  One of his articles then was cited in argument in a Scottish court but dismissed by the judge as written by one who had no right of appearance before him (Mercantile Credit v Townsley 1971 SLT (Sh Ct) 37 at 39).  Perhaps in answer, in 1974 Alan was called to the Scottish Bar, becoming as soon as 1976 Clerk of Faculty (a position he held for three years).  He was appointed QC and an Advocate Depute in 1985, and then became successively Solicitor General for Scotland in 1989 and Lord Advocate in 1992 under the then Conservative Government.  Amidst all this his academic achievements led to his election as a Fellow of the British Academy in 1991 and as a Fellow of the Royal Society of Edinburgh in 1992.  He ascended the Scottish bench in 1995 and in 1996 succeeded Lord Hope of Craighead as Lord President and Lord Justice General.  In 2001 he joined Lord Hope as one of the two Scottish judges in the House of Lords; and when that court was transformed into the UK Supreme Court in October 2009 the two became the first Scottish Justices in that institution.  Although he never lost touch with the Scottish university law schools (for example, he was an Honorary Professor at Glasgow, and received honorary degrees from Edinburgh and Aberdeen as well as Glasgow again), he loved Oxford, becoming for example the university's High Steward in 2008 and Visitor of Balliol (in succession to the late Lord Bingham) in late 2010 as well as helping out with the teaching of Roman law in the university after the death of the Regius Professor of Civil Law, Peter Birks, in 2004.

As a judge Alan was in the forefront in what has turned out to be the greatest challenge ever to face the courts, not only in Scotland but also in the United Kingdom as a whole: the impact of the Human Rights Act 1998 coupled with, in this jurisdiction, the Scotland Act of the same year.  While some of his analyses and conclusions may be challenged by others on legal and (for Alan, irrelevantly) political grounds, there can be no doubt of the rigour and vigour which he with others brought to what turned out to be an enormous and far-reaching task.  The Cadder case was perhaps his last major contribution in this area, and a very typical one for those looking for an example of his judicial style.  But the contribution was not limited to this field, however central it seems.  There were path-breaking judgments in pure criminal law, as in the Galbraith case on diminished responsibility.  And in private law he ranged widely, perhaps especially when he was Lord President; but even in the House of Lords and the Supreme Court there were powerful, possibly decisive speeches and judgments: for example on the right of retention in the Inveresk case in 2009, where he explained clearly the notion that the right was subject in some circumstances to the equitable control of the court; the servitude of parking case in 2007 (with its entertaining discussions of parking problems in ancient Rome and contemporary tenemental Scottish cities); and the effect on the buyer's right of rejection of faulty goods of acceptance of the seller's offer of cure in another 2007 case.

Alan eschewed any form of "Scottish legal nationalism", indeed could be fiercely critical of some of its manifestations.  Some of that can be seen in his Wilson Lecture of 1995, later published as the very first article in the Edinburgh Law Review: "Thinking about Scots law", vol 1 (1996) pp 3-24; but at various points in his judicial career he did not hesitate to develop a distinctive Scots law where he found it to be justified by authority, principle and legal policy: notably the law of unjustified enrichment (Shilliday v Smith 1998 SC 725), but also the entitlement of a contracting party to claim specific implement in circumstances in which in England the House of Lords had held specific performance not to be available.  His judgments were peppered with references to Roman law, on the use of which as a source for modern Scots law he had characteristically specific and strong views, but without ever making them a programme for any sort of Civilian renaissance in Scotland.  He also drew on comparative law and the later European ius commune (see for example his opinion in the Piper Alpha case when Lord President), but was utterly against any development of a modern European private law, at least in any sort of codal form.

Others are better placed than this writer to assess Alan's contribution to Roman law studies; but his standing in that worldwide field of scholarship is very high indeed, and has been for a long time.  He wrote about current issues in Scots law, too; but from the 1980s on he began to work on the relatively neglected field of "modern" Scottish legal history, i.e. from the nineteenth century on.  He pioneered in what is now the thriving study of the greatest of all Scottish cases, Donoghue v Stevenson (1932), characteristically focusing on the figure of the pursuer: who was she and what happened to her outside her famous case?  Perhaps his greatest achievement in this area is his book on the Disruption and its legal causes and consequences, The Courts, the Church and the Constitution (2008), in which he explores not only the extensive case law but also the religious dogmas and the individual personalities embroiled in the affair, all in loving and ultimately compelling detail.  Of course there are lessons in it all for law now; but that was secondary to the inherent interest of the subject.  For Alan, following David Daube, that interest was in the end quite sufficient justification for the study.  From Daube too he learned to start with words and work his way to conclusions (or, at least, more general observations) from the bottom up.  That approach is apparent in all his written work, whether as a judge or as a scholar.  It also explains another strand in his publications, writings on the language used by judges, in Britain and elsewhere, and also by legislators.

Any suggestion that all this means that Alan was above all the detached judge and scholar wholly absorbed by his work would be completely wide of the mark, however.  He was a highly entertaining companion who loved discussion, debate, wining and dining, and gossip.  His friendships were strong and deeply felt: witness his memoirs of such as David Daube, Peter Birks, Edinburgh solicitor advocate David Williamson and the Scottish judge, Lord Davidson (see 2004 SLT (News) 55 and 2009 SLT (News) 157).  He was much in demand as an after-dinner speaker (for some of the reasons why see his "Humour and law", 2009 SLT (News) 202).  He was delighted if you brought him something that interested him; while his mock-querulous tone if he thought he had caught you out in absurdity or irrationality was always pitched just so as to induce a smile (unless, perhaps, you were counsel appearing before him).  Brilliant, argumentative, serious, funny and above all engaged:  Alan Rodger will be deeply missed but we should all be thankful that we knew him and that so much of him is still there for us to cherish as well as to admire.  A final thought is that were he here he would most probably want to engage in the speculation as to who will be his successor in the Supreme Court.

Other obituaries and tributes

Scotsman, Daily Telegraph, Guardian, Herald, Judiciary of Scotland, UK Supreme Court, Crown Office and Procurator Fiscal Service, Scotsman obituary, UKSC blog (Aidan O'Neill QC), President and Deputy President of the UK Supreme Court, The Times 1 July 2011 (not freely available online), Roman Law Resources (links to video of Supreme Court tribute ceremony).

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Supreme Court experts announced

The Scottish Government's Expert Group to consider the jurisdiction of the UK Supreme Court in criminal matters will consist of Lord McCluskey, Sir Gerald Gordon QC, Sheriff Charles Stoddart and Professor Neil Walker.

It is of course a distinguished group but, Scots Law News feels bound to add, not one in the first flush of youth, and also one entirely masculine.  Others will feel worried by an excessive quotient of Edinburgh Law School associations, but that is something on which your editor cannot possibly comment.  What difference any of this will make to their advice is anyone's guess.

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Scottish Cabinet to set up expert group on Supreme Court

Following a fevered few days of public debate since the Nat Fraser decision by the UK Supreme Court, the new Scottish Cabinet has announced after its meeting on 31 May 2011 the creation of an expert group to look into the question of the Court's jurisdiction in Scottish criminal cases.

The names of the experts are awaited with interest.

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Three years probation for illegal file sharing

The BBC reports on 31 May 2011 that Anne Muir has been given three years' probation following her earlier conviction for illegal file-sharing.

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First illegal music file sharing conviction in Scotland

The Crown Office and Procurator Fiscal Service (COPFS) has issued a press release announcing that Anne Muir (58) has become the first person in Scotland to be convicted for illegally sharing music files online.

Ms Muir, from Ayr, apparently pleaded guilty at Ayr Sheriff Court in April 2011 to a contravention of section 107(1)(e) of the Copyright, Designs and Patents Act 1988, admitting to having distributed £54,000 worth of copyrighted music files by making them available to others via a 'peer-to-peer' file sharing application.  Her arrest and charge followed an initial investigation by BPI (British Recorded Music Industry) and IFPI (International Federation for the Phonographic Industry).  Police officers subsequently obtained a search warrant for her home in Ayr and seized evidence including computer equipment.

Unfortunately, in commenting on the conviction, District Procurator Fiscal for Ayr, Mirian Watson, succumbed to the music industry's favoured but legally unsound analogy in cases of this kind when she said that "Illegally flouting copyright laws is tantamount to theft and not only deprives legitimate companies and artists of earnings, but also undermines the music industry as a whole."  

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Megrahi: a desert story (continued)

Early February 2011 saw fresh light thrown on the UK Government’s negotiations with Libya in the years before the Scottish Government decided on compassionate grounds to release from Greenock Prison the only man ever convicted of the 1988 Lockerbie bombing, Abdelbaset al Megrahi.  It became clear that the UK Government had done as much as it could to promote Megrahi’s release; but there was no evidence that the Scottish Government decision had resulted from UK Government pressure.

The major insight was provided by a report from UK Cabinet Secretary Sir Gus O’Donnell published on 7 February, who at the Prime Minister’s order had conducted an inquiry into the previous Government’s negotiations with Libya between 2004 and 2009.  Better relations with Libya had been sought to promote British commercial interests in the country, in particular those of BP.  By 2008 it was clear that the release of Megrahi was a sine qua non for the Libyans, and from then on the UK Government did all it could to facilitate an appeal by Libya to the Scottish Government under either the UK-Libya Prisoner Transfer Agreement or the compassionate release legislation.  But there was no evidence that the UK Government had put pressure on the Scottish Government to agree to any release.  O’Donnell’s inquiry had however investigated only UK government papers and not the records of the Scottish Government. 

There was also a release of Scottish Government papers which led to a small row in some parts of the media as to whether or not the Scottish Government had attempted to strike a bargain with the UK Government in which Megrahi would be released in return for some legislative measures for Scotland.  Whether or not there was such an attempt, Megrahi was released and there were no known concessions to the Scottish Government from Whitehall or Westminster then or afterwards.  Scots Law News suspects that there were some interesting intra-governmental conversations but doubts very much whether the Scottish Government would have thrown away anything it regarded as a bargaining card.

Interesting if less significant light came from a Wikileak release of a US diplomatic cable showing that more than a year before Megrahi’s release, in 2008, the UK was briefing the US on various ways in which the release might take place under either the PTA or the compassionate release legislation.  Again therefore it was clear that the release when it came did not hit the US Government as a bolt from the blue.

None of this changes the Scots Law News view, expressed just after the release, that doing so was indeed a political decision, but not for the reasons claimed by the political opponents of the Scottish Government.  Scottish Labour’s attempts to pin moral blame for the decision entirely on their SNP opponents look clumsy and naive indeed given what was, even at the time, the perfectly obvious interest of their London big brothers in having UK-Libya relations improved by Megrahi’s return to his homeland.

Meantime on 25 January the Scottish Parliament Public Petitions Committee more or less gave up on its attempt to get the Scottish Government to hold an inquiry into all aspects of the Lockerbie case but sent more questions, to the Scottish Criminal Cases Review Commission, the Lord Advocate and the Cabinet Secretary for Justice, producing an interesting set of replies shortly afterwards.  The SCCRC indicated its view that it could reopen a case in which, like Megrahi’s, an appeal had been abandoned; the Lord Advocate confirmed that the Crown Office has never held the view that Megrahi acted alone and that investigations of the bombing and other possible perpetrators were still open; and the Cabinet Secretary for Justice pointed out that the remit of the Carloway inquiry into criminal procedure and evidence following the Cadder case includes a review of the Criminal Procedure (Legal Assistance, Detention and Appeals) Act 2010 (which has been seen by some as severely restricting the power of the SCCRC to refer cases to the High Court of Justiciary). 

As all this was going on, the people of Northern Africa began to rise against their governments, and Tunisia and Egypt found themselves suddenly moving into a new era which, they perhaps fondly hoped, would be a bit more democratic than the previous ones.  Nearby Libya proved not to be immune to the popular tide; but the government of Colonel Gaddafi emerged as altogether more resistant to such change than its Tunisian and Egyptian counterparts, even after NATO and UN intervention in effect on the side of the rebels.  There were some defections from Gaddafi’s side, however; notably his Justice Minister, Mustafa Abdel Jalil (who claimed to have evidence that implicated Gaddafi as having ordered the Lockerbie bombing), and the Foreign Minister, Moussa Koussa.  The latter was interviewed by Dumfries & Galloway police and Crown Office officials on 4 April in connection with the Lockerbie case (see here), but no further information emerged in public, at least, and Koussa went on his way, having been granted access to funds he held in Europe that had been frozen as part of the sanctions against the Gaddafi regime.

As for Megrahi himself, he remains obdurately alive, although reports vary between saying that he is all but at death’s door or is likely to live for many years yet.  There are also claims that he is due to move into a new house being built for him in Tripoli.  How his interests might be affected if Gaddafi is overthrown is unclear; this interesting BBC report includes the information that Megrahi’s tribe, the Magariha, is at odds with the Qadhadfa tribe from which Gadaffi comes, at least within the Libyan armed forces.  Perhaps a Scottish safe haven may yet come to have its attractions.

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