Month: August 2009

Steven Reid was a hotel cleaner, but wanted the day off. There was only one thing to do.

The fiscal depute, Jim Craigen, told the sheriff court in Aberdeen

"He was making his way to work and didn't really much fancy going. He therefore removed a razor from his pocket and repeatedly dragged it down his face. He also picked up a boulder and struck it off his head and repeatedly hit himself on the head and body."

Mr Reid then reported the incident to the police claiming to have been assulted by two men.

Sheriff Graeme Buchanan fined Mr Reid £100 for wasting police time, and – uncontroversially – said it was a "pretty bizarre act".

Mr Reid said,

"Looking back, I should have just phoned work and asked them for the day off."

 

The justice department issued a consultation paper in mid August on the controversial subject of high hedges. The subject has been considered previously by the former Scottish Executive in January 2000, and a proposed members bill was suggested in 2002, 2003, and 2006 by Scott Barrie (when he was not occupied in asking for ministerial views on the success of Dunfermline in the TV revival of "It's a Knockout").

The consultation is a response to a high level of correspondence received by the Scottish Government's Community Safety Unit and it is in that context that the consultation paper is issued.

"We need to see efforts to tackle high hedge problems in the context of developing solutions to violent crime, drug and alcohol abuse, deprivation and the recession and ensure our resources are divided in a way that delivers maximum benefit for all the people of Scotland." (para 2.9)

The consultation proposes four options:

Option 1: Do nothing – no Government action
Option 2: Promote existing remedies such as mediation
Option 3: Strengthen and supplement existing remedies with research, guidance and title conditions
Option 4: Provide a legislative solution by utilising or extending existing provisions or introducing new ones

and notes that Lord McGhie, President of the Lands Tribunal for Scotland, argued for option 4 (for reasons which are detailed at para 3.21 of the consultation paper).

The consultation paper was launched by community safety minister Fergus Ewing who stressed the seriousness of the project.

"High hedge disputes should be a relatively trivial matter, with those involved resolving things with a simple neighbourly chat. But for those involved, the issue can sometimes be far from trivial and we have seen from recent cases that such disputes can, in a relatively small number of instances, get out of hand. What starts off as an amicable discussion can often spiral out of control leading to confrontation and antisocial behaviour in our communities."

The consultation paper was welcomed by hedge related pressure group, Scothedge.

Dr Colin Watson, from Scothedge (a "branch of hedgeline" – which is the Campaign for Effective Legislative Control of Problem High Hedges of all species, in residential areas of the UK offering "advice and information for Hedge-Victims"), said:

"We are campaigning on behalf of over 250 people affected by uncontrolled and poorly maintained trees and hedges. In our experience the problem arises because under current law there is simply no requirement for a hedge grower to consider the impact his actions are having on his neighbour. We welcome the news that the Scottish Government is seeking a solution to this problem. Our members cover the length and breadth of Scotland from Skye to Dumfries and Arran to Fife."

Don't miss you chance to contribute to the consultation which closes in November.

PS The alternative heading was voted the funniest joke on this year's Edinburgh Fringe

Now that Justice Secretary Kenny MacAskill has finished with the al-Megrahi case he can turn to the other issues in his in-tray.

During his consideration of the decision a couple of consultation papers were issued by the Justice Department.

In mid-July a consultation paper was issued on the law of bribery and corruption – being based on the English Law Commission report on reforming bribery from 2008. Launching the paper Mr MacAskill noted,

"While Scotland has low levels of corruption, with only three cases in 2007, the current law on bribery and corruption is fragmented, outdated and in need of reform. Bribery and corruption does not respect international boundaries and we need a clearer legal framework in Scotland to bring it into line with international law. These new proposals will enable Scotland to play its part in the international fight against bribery and corruption and send a clear message to these people that it will not be tolerated in this country. Whether you are a Mr Big seeking to bribe someone for your own criminal ends, or an individual who has no previous criminal record but accepts a bribe to get ahead in life, there is no hiding place and you could face up to ten years in jail. The UK Government has presented its proposals for the UK draft Bill in terms of retaining the UK's reputation as one of the least corrupt countries in the world and therefore a good place to do business. We need to protect Scotland's reputation in the same way. In doing so we are maintaining a supportive business environment which can contribute to sustainable economic growth."

The UK Supreme Court will begin sitting in October 2009, but already its website is in place.  While this looks to be a great improvement in general on its House of Lords predecessor, our West of Scotland correspondent Ross Anderson has pointed out that it needs some tweaking to get rid of basic errors about the Scottish legal system.

Go to the site's "UK Judicial System" section (the title is already a misnomer and should read "Systems", we suggest), and you will find a diagram rather faintly presenting the court structures for England & Wales, Northern Ireland and Scotland, with, of course, the UK Supreme Court atop them all. 

Ross says:

The map and key of the Scottish courts is littered with mistakes: according to it, the Court of Session hears criminal cases.  It also mentions a number of “tribunals” which have criminal jurisdiction.  Perhaps this refers to certain tribunals that take place under the Terrorism Acts, but who knows?! 

Scots Law News noted for itself "the High Court of the Justiciary" (presumably a court in which judges accused of crime are tried), and that the Outer House of the Court of Session is non-existent – does the UK Supreme Court know something about the eagerly (and long) awaited Gill Review of the Civil Courts that the rest of us don't?  Finally, we have not previously heard that the sheriff principal had a criminal as well as a civil appellate jurisdiction.

And James Chalmers points out that,

The England and Wales / Northern Ireland diagrams are also incorrect, due to confusion between triangles and circles (!) And the Sheriff Principal may not have a criminal appellate jurisdiction, but perhaps the newly created "Sheriff Prinicipal" (as the map has it) does?

A final irreverent thought with which to link this story to the week's earlier posts – is this perhaps where Mr Mueller of the FBI began his researches on the current Scottish legal system?  Or have his agents been fiddling with the website to begin the undermining of this annoying little system with its tendency to follow its own sweet way?

Scottish Parliamentary questions to Justice Secretary Kenny MacAskill in a session for which it had been specially recalled on 24 August 2009 failed to shake his basic position on the compassionate release of Abdelbaset Megrahi, the convicted Lockerbie bomber.

The MSPs' questions were basically rather repetitious: (1) what led to and what were the consequences of the meeting between Megrahi and MacAskill? (2) why was the compassionate release not to a place in Scotland? (3) would there be any leak inquiry over the early reports that Megrahi's release was imminent?  (4) what did the Cabinet Secretary think about Megrahi's welcome in Libya? 

The answers were actually mostly in Mr MacAskill's opening statement – itself basically a repetition of what he said when announcing the release on 20 August, resting on the planks of due process and Scottish values tempering justice with mercy even when the compassion shown did not appear to be reciprocated.  On (2), the Cabinet Secretary pointed to police advice that release of Megrahi to a hospice would have required the attendance of 48 police officers to ensure security, and this and the probability of a media scrum in and around the hospice with concomitant effects on other patients led to his ruling it out as a possibility.  Those who asked questions on this failed to suggest what practical alternatives there might have been.  In general, the questions were not clever; and the MSPs failed to follow through on some of the points that emerged, preferring to read the questions they had so carefully prepared earlier rather than build on the answers Mr MacAskill had given when they were asked earlier by others.

The main blows landed on the Cabinet Secretary seemed to this observer to be these:

(1) the guidance on how to handle prisoner transfer agreements, while requiring the Minister to receive representations from the prisoner (whose consent to the transfer would not have been required), says that these representations will be in writing, so no actual meeting is required by those guidelines.  Mr MacAskill's defence is that the meeting was requested by Megrahi and that the principles of natural justice were followed;

(2) he wasn't able to say that all existing documentation (including any notes taken at the meeting in Greenock prison) would be released, although he said that as much as possible would be; nor would he say that there would be any further publication of or inquiry into the Scottish Criminal Cases Review Commission report which led to Megrahi's ultimately aborted appeal;

(3) he could not say what would happen if Megrahi failed to comply with the condition of his release that he hold a monthly video conference with East Renfrewshire Council social work department;

(4) he did not say that there would be any leak inquiry.  This is interesting, because Scots Law News has heard that the source of the original leak to the BBC was in London; but perhaps that is all part of the exciting speculation which has characterised so much of the media discussion in this case.

Mr MacAskill did say that he regretted the way in which Megrahi had been welcomed in Tripoli, which came about, it appears, even although both he and the Foreign and Commonweralth Office of the UK Government had apparently asked Libya to avoid such scenes in the event of release.

In the end, then, Mr MacAskill seemed to hold his ground; but the Holyrood show has not quite brought the story to a final conclusion.

 

FBI Director Robert S Mueller III has sent a public letter to Justice Secretary Kenny MacAskill criticising the latter's decision to release Abdelbaset Megrahi, the convicted Lockerbie bomber, on compassionate grounds.  The remarkably emotional – and sadly error-strewn – letter can be read here on the FBI website.

The first error is that Mueller seems to think that MacAskill is a prosecutor, which suggests that the close collaboration in the Lockerbie investigation between US and Scottish prosecutors and police to which the letter refers has not given Mueller any clear understanding of the Scottish prosecuting – or constitutional – structure.  Then, apart from the point that Megrahi was not convicted by jury, the suggestion that MacAskill's decision is "inexplicable" is simply nonsense.  As was very fully explained by the Justice Secretary, the Scottish legal system provides for the compassionate release of prisoners who are terminally ill and medically certified as likely to die within three months.  It does not require the prisoner in question to accept guilt or express remorse.  (No more is that the case, it might be added, in the English legal system, as illustrated in the recent compassionate release of the unrepentant Great Train Robber, Ronnie Biggs).  It is not a pardon or a decision that the prisoner was not guilty, and there is nothing "opaque" in references to compassion, since that is the legal basis of the decision to be taken.  So Mueller's opening claim to be "familiar" with the relevant law is clearly a misapprehension on his part.  Further, the Justice Secretary did not give "the back of his hand" to the families of the victims, but consulted them in both the USA and the UK.  Mueller's letter also takes no account of the publicly stated positions of several of the UK victims' families on the matter.  Again, the release was not made under the UK-Libya prisoner transfer agreement; to transfer to the Scottish decision cynicism about that agreement (which in the context of UK interests in Libyan oil may well be justified) is simply unsustainable.  Finally, the "jubilant welcome in Tripoli" has indeed been made much of in the media, but as previously suggested here in this blog, a lot of that appears to have been puffed up by those who want to score political points and to bear little relationship to the reality of the few seconds' footage that has been available so far.

A fascinating little insight is also provided by Mueller's opening comment that "only the prosecutor handling the case has all the facts and the law before him in reaching the appropriate decision."  That rather suggests we don't need judges, juries or defence lawyers in the criminal process.  But one can be sure – can't one? – that the Director of the FBI doesn't really think that.

Scottish Justice Secretary Kenny MacAskill announced his decision to release the convicted Lockerbie bomber Abdelbaset Al-Megrahi on compassionate grounds on 20 August 2009.  Megrahi flew home to Tripoli later on the same day.

Mr MacAskill emphasised in his speech and subsequent media interviews that his decision reflected the compassionate values of Scots law and the Scottish people.  He rejected arguments that a man convicted of killing 270 people did not merit such compassion; Scots law rules said that a convicted person with less than three months to live could be released on compassionate grounds.  In brief, his line was that two wrongs do not make a right.  He also made clear that an application made under the prisoner transfer agreement between the UK and Libya (negotiated, it will be recalled by Tony Blair and the Labour Government in Westminster) had been rejected.  Mr MacAskill also argued that his interview of Megrahi in Greenock prison had been necessary under the prisoner transfer agreement, in order to enable him properly to appreciate Mr Megrahi's case under that agreement.  There had been no deal under which Mr Megrahi had dropped his appeal in return for release.

With the aid of a stick, and hiding his lower face from the cameras with a scarf, Mr Megrahi climbed the steps to the door of the aircraft provided by the Libyan Government to take him home from Glasgow.  The van carrying him from Greenock prison to the airport had been booed by a small crowd at the prison gates.  The welcoming party at Tripoli airport was clearly disposed to provide a hero's welcome as Mr Megrahi, now besuited, was helped down the aircraft steps by two supporters.  Flags, including a large Saltire, were waved; but the crowd at the foot of the steps looked to your reporter's eye to be measured in tens rather than hundreds.  There are suggestions that Mr Megrahi will meet, or perhaps has already met, the Libyan leader Colonel Gaddafi – but if so, the Colonel was not on the landing strip.  He may be saving himself for the forthcoming celebrations marking the fortieth anniversary of his seizure of power in Libya on 1 September 1969.  It is not known whether Mr Megrahi and his return to Libya will have any part to play in these celebrations.

The American Government manifested its disapproval of the decision but President Obama's denunciation of it as "a mistake" was scarcely impassioned.  Given that the release was not made under the prisoner transfer agreement, it was surprising to see the President suggest that Libya should place Mr Megrahi under house arrest.  From Westminster, even more significantly, no protest at all, simply a reiteration of the obvious, that the decision had been one for the Justice Secretary alone.  It was hard to resist the conclusion that in the end realpolitik prevails: improving relations with Libya and gaining increased access to its huge oil reserves matters more now than righting twenty-year-old wrongs.

On 21 August the Lord Advocate announced that she was dropping the Crown appeal against the sentence imposed on Megrahi (27 years imprisonment).  The Crown Office press release read as follows:

"The Lord Advocate today announced that she has decided to withdraw the Crown?s appeal against the sentence of Abdelbaset Ali Mohmed Al Megrahi. Mr Megrahi was sentenced to life imprisonment with a punishment part of 27 years. The Crown appealed the punishment part as unduly lenient. The Lord Advocate has now had the opportunity to consider reports regarding Mr Megrahi?s medical condition and prognosis. Mr Megrahi is now terminally ill. The Lord Advocate has taken account of the fact that he has now been released on compassionate grounds and is no longer in this country. Had he remained in custody, he would have had no prospect of serving the current punishment part of his sentence, let alone any increased sentence that the Lord Advocate was seeking. That, together with his release, means that the outcome of any appeal could have no practical effect whatsoever for Mr Megrahi."

The Scottish Parliament has been recalled to debate the matter on 24 August.  The opposition parties will try to make capital from criticism of the way the matter has been handled, perhaps especially Mr MacAskill's visit to Mr Megrahi; but to Scots Law News more interesting will be how hard the push is for some sort of further inquiry into the matters raised by the Scottish Criminal Cases Review Commission that underlay the abandoned Megrahi appeal.  In a TV interview Mr MacAskill, proclaiming his satisfaction with the guilty decision against Megrahi, appeared to rule out an inquiry being initiated by the Scottish Government, but promised full cooperation with any inquiry from another source.  It seems unlikely on all that has been seen and heard from Westminster to date that the UK Government will take an initiative in this regard; but the United Nations has been mentioned as another possibility in some quarters.

Thanks to Scott Wortley for the information that the Prisoner Transfer Agreement and the statement by Mr Straw relied on by Mr MacAskill to justify his meeting with Mr Megrahi are both on-line: http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/71/71.pdf and http://www.official-documents.gov.uk/document/cm75/7540/7540.pdf.

For those longing for an escape from the Will he? Won't he? joys of the Lockerbie affair, a vote of thanks to our Scottish Law Commissioner correspondent George Gretton, who has drawn our attention to the transcript of R v William Chambers [2008] EWCA Crim 2467 and the confession of counsel that he had conducted a Customs prosecution on the basis of a statutory instrument superseded eight years ago.

The exchange between the unfortunate counsel and the presiding judge gives one all the joys of schadenfreude and should be read in full.  It becomes apparent that the Revenue and Customs Protection Office (RCPO) has conducted several cases on the basis of the wrong text of the Regulations in question, obtained from the unamended version thereof on the website of the Office of Public Sector Information.  The case thus raises the question of the lack of a comprehensive, fully up-to-date official statutory database, and Lord Justice Toulson has this to say as part of his judgment:

"It is a matter of considerable concern to us that the Recorder was not taken to the relevant Regulations and nor were we until the 11th hour, when we were on the point of reaching a wrong decision. Mr Cammerman has explained that he based his understanding of the relevant law on the Office of Public Sector Information web site, which shows the Excise Goods Regulations 1992 in their unamended form. We accept his personal explanation and apology, but that does not alleviate our concern.

What happened in this case is not an isolated lapse. Earlier this week we heard another appeal from a confiscation order relating to the evasion of duty on cigarettes. In that case too the prosecution relied on the Excise Goods Regulations 1992. We were unhappy in that case that the prosecution produced those Regulations – which as we now know were the wrong Regulations – only during the course of the appeal, because we did not think that it gave the appellant a fair opportunity of dealing with a potentially difficult point. So we allowed the appeal, with the result that no injustice was in fact done in that case by our being referred to the wrong Regulations.

However, our concern remains that the court should have been misled in this way. It is clear that the problem is a systemic one in that the information on the Office of Public Sector Information web site is defective and has presumably been so for some considerable time. Mr Cammerman has told us that in the present case the prosecution was brought by the Revenue and Customs Prosecutions Office and therefore it is apparent that within that Office there is, or has been until now, considerable ignorance about what were the relevant Regulations in force. That is also a matter of self-evident concern.

In the circumstances, we expect that the Revenue and Customs Prosecutions Office will now conduct an urgent inquiry whether there have been mistakes in other cases in which confiscation orders have been made, no doubt with sentences of imprisonment in default. If that turns out to be so, the defendants in those cases should be given notice in order that they can make late applications for leave to appeal or such other application as may be appropriate if, for example, they have served a default term of imprisonment as a result of a court imposing a confiscation order on an erroneous understanding of the law. We were told by Mr Cammerman this morning that such a review is already underway.

This case also provides an example of a wider problem. It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons.

First, the majority of legislation is secondary legislation.

Secondly, the volume of legislation has increased very greatly over the last 40 years. The Law Commission's Report on Post-Legislative Scrutiny, (2006) Law Com 302, BAILII: [2006] EWLC 302, gave some figures in Appendix C. In 2005 there were 2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments, making a total well in excess of 15,000 pages (which is equivalent to over 300 pages a week) excluding European Directives and European Regulations, which were responsible for over 5,000 additional pages of legislation.

Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.

Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic. This means that the courts are in many cases unable to discover what the law is, or was at the date with which the court is concerned, and are entirely dependent on the parties for being able to inform them what were the relevant statutory provisions which the court has to apply. This lamentable state of affairs has been raised by responsible bodies on many occasions …"

It will be interesting to see whether this has any effect on those whose responsibilities these matters are.

 

The BBC reports that the High Court has allowed Abdelbaset al-Megrahi to abandon his appeal against conviction for the bombing of PanAm flight 103 over Lockerbie in December 1988.  See also Robert Black's Lockerbie Case blog.

The court was given details of Megrahi's current state of health: "the prognosis is extremely limited".  The Crown's position continued to be of support for the conviction.

The report notes that the court also urged the Lord Advocate to consider without delay the continuation of her appeal against the length of Megrahi's sentence.

The Crown Office issued the following statement at lunchtime:

"The Crown's appeal against sentence is an entirely separate process from Mr Megrahi's appeals against conviction and sentence which have now been abandoned.

"As Crown Counsel outlined at today's hearing, the Lord Advocate has no part in the Scottish Government's consideration of prisoner transfer or compassionate release of Mr Megrahi. This reflects the Lord Advocate's position as the independent prosecutor.

"The Lord Advocate has not received any request from the Scottish Government to intimate whether the Crown's appeal against sentence will continue.

"Furthermore, the Lord Advocate has not received any information on Mr Megrahi's current medical condition that she would require to take into account in order to make such a decision. The Lord Advocate has always been prepared to give any request her full and prompt consideration."

 

Predictably the furore over the possible release of Abdelbaset al-Megrahi has grown exponentially since the breaking of the news that he was seeking to drop his appeal against conviction for the Lockerbie bombing.  Professor Robert Black gives full details and updates on his excellent Lockerbie blog.

Amongst the items now covered on Professor Black's blog are Tam Dalyell's theory that the US Government connived at the bombing of PanAm 103 as part of a "Faustian" pact with Iran to avert the bombing of many more civil airliners in revenge for the shooting down of an Iranian airliner by the USS Vincennes earlier in 1988; a Sunday Times story that the document recovery of which was sought by Megrahi in connection with his appeal is ultimately from American intelligence sources and blames Iran for the bombing; and a Sunday Telegraph story about Dr Jim Swire's proposal to take civil action against the Scottish prosecuting authorities for "deliberately obstructing" his right "to know who killed my daughter" (Flora was one of the victims of the bombing) and "to seek annulment of the findings of the Lockerbie Fatal Accident Inquiry [of 1990] on grounds of withholding of evidence about Heathrow, and then to seek a new FAI or legitimate equivalent in its place."  The evidence said to have been withheld is about a break-in at PanAm's Heathrow baggage area 17 hours before PanAm 103 took off.

Items not so far covered by Professor Black include a BBC story about a meeting between Lord Mandelson, the First Secretary of State, and Saif Gaddafi, son of the Libyan leader, which took place while both were on holiday in Corfu in the week before the stories broke about Megrahi's possible release, and at which, it appears, the two had a "fleeting conversation" about Megrahi, although Lord Mandelson was "completely unsighted on the subject".  

Robert has also not yet picked up an explosive outburst from Alistair Bonnington, also on the BBC website, criticising the "Lockerbie trial conspiracy groupies", as a "bizarre array" suffering from "internet-fuelled madness".  It seems a curious way to describe Robert Black, Tam Dalyell and Jim Swire, but perhaps they are not Alistair's target on this occasion.  Alistair argues that it is Libya which has told Megrahi to abandon his appeal so that after his death it can be maintained that the full truth was never known because the appeal was not completed.  Finally he criticises the call from some relatives of the victims for a public inquiry into the whole affair as "outrageous, selfish and irresponsible", since it would use up public funds better spent on the prevention of crime in the future.

Meantime in the eye of the storm Justice Secretary Kenny MacAskill has issued a statement saying that no date has yet been set for the announcement of any decision on the matter because no decision has yet been taken; but an announcement will be made "as soon as possible – certainly within the next couple of weeks".