Lockerbie: Megrahi to drop appeal

Abdelbaset Ali Al-Megrahi's solicitors, Taylor & Kelly, announced on 14 August 2009 that their client wished to drop his as yet undecided appeal against conviction of the bombing of PanAm Flight 103 over Lockerbie in December 1988, which killed 270 people.

The matter will come before the High Court of Justiciary on 18 August.  The court, it will be recalled, is preparing its judgement on an aspect of the appeal, which may be handed down in September.

If the court allows the appeal to be dropped, that will open up the possibility of Megrahi's release from Greenock prison to serve the remainder of his sentence in a Libyan prison under a prisoner transfer agreement between the UK and Libya.

Earlier, on 12 August, the BBC reported that Megrahi, who is dying from prostate cancer, might be released from prison on compassionate grounds because his death was likely within three months.  This led to a furious reaction from some of the relatives of US victims of the bombing, although relatives of UK victims appeared more open to the possibility.  The Scottish Government later vehemently denied that compassionate release was on its agenda.  Megrahi could have continued his appeal if released on compassionate grounds.

The US Government in the person of Secretary of State Hillary Clinton has apparently made clear in response to Megrahi dropping his appeal that it favours his serving out his sentence in Scotland.

The final decision on Megrahi's release will be taken by Justice Secretary Kenny MacAskill, who controversially visited Megrahi in prison on 4 August as well as meeting with UK and US relatives (the latter by way of video conference).  Although choreography is hotly denied by the Scottish Government, it is hard not to see any relation between the Minister's prison visit, the entry into the public domain of the compassionate release possibility as a testing of the waters (especially in the US), Megrahi's decision to drop the appeal, and the possibility then arising under the prison transfer agreement.  All that would avoid the inconvenient ventilation of all the evidence for months and years to come, keep Megrahi in prison albeit in Libya, and avoid possible embarrassment for police, prosecutors, judges and others.  But it looks as though the US Government is not on board; and with domestic battles about healthcare reform meaning that unpopularity through seeming soft on terrorism cannot be afforded, it may not be persuadable.

As commentators have noted, all this suddenly means that the Scottish Government has to take a decision that will have repercussions internationally, not least in terms of the UK's relations with the USA and Libya.  Devolution is not just a matter of Britain's domestic politics after all, and the reality of Scotland as a legal jurisdiction as well as a devolved region of the UK is very apparent.  Add to this the moral complexities in Megrahi's case, and one may think that it will be an interesting weekend in St Andrew's House.

Wikipedia and hyperlinks in the Court of Session

The blog of Jonathan Mitchell QC drew attention to an apparent hyperlink in Lord Woolman's opinion in the personal injuries case of Gordon v Lynch [2009] CSOH 116, published 6 August 2009.  Although not visible on the Scots Law News browser, click on the words "traumatic brain injury" in para 3, and you are through to the Wikipedia entry on "traumatic brain injury", (in here again for the benefit of our readers).

Jonathan's blog contains wise words on the dangers of treating the interactive Wikipedia as an authority (but it is jolly handy when you are in a hurry and of course it's free at point of use).  Law student readers please note that Wikipedia should not be cited in essays, dissertations and theses.

QLTR annual report on treasure trove

In the light of recent interest in the Queen's Lord Treasurer and Remembrancer in these pages here and here, Scots Law News was delighted to receive the following press release on 14 August 2009.

The Queen's and Lord Treasurer's Remembrancer today published his fourth annual Report on Treasure Trove, which has been presented to the Scottish Parliament.

The Report covers the period 1 April 2008-31 March 2009.  It comments on Treasure Trove matters dealt with by the Queen's and Lord Treasurer's Remembrancer (QLTR) and by the Scottish Archaeological Finds Allocation Panel (SAFAP).

Norman McFadyen, the Queen's and Lord Treasurer's Remembrancer, said:

"I am delighted to present my fourth Annual Report on the operation of the Treasure Trove system in Scotland. This has been an exceptionally busy year for the Scottish Archaeological Finds Allocation Panel and I am very grateful to the chair, Professor Ian Ralston and the whole Panel for the significant unpaid work which they continue to do in support of the Treasure Trove system. 

"This year's Report includes a detailed report by Professor Ralston in which he sets out some of the particular challenges which the Panel has faced this year and the publication of the Treasure Trove Code of Practice, which sets out the chain of responsibility for the various bodies involved and clarifies the process of determining the appropriate ex gratia award for a particular object.  I hope it will be of benefit to the diverse communities affected by it, whether they are in the field of museums or archaeology, metal detector users or indeed members of the general public with an interest in Scotland's heritage." 

This year's report includes details and pictures of finds of, amongst other items:

i) A Neolithic stone axehead from Lockerbie, Dumfries and Galloway.  Stone axeheads were essential tools for Neolithic farmers, but also had additional symbolic and ritual connotations. This example is made not from local stone, but from Langdale tuff, a Cumbrian stone which was quarried extensively in the Neolithic period. The discovery of these axeheads far from Cumbria is a striking indication of the network of long distance contacts underpinning prehistoric societies.

ii) An Early Bronze Age flanged axehead from Cardross, West Dunbartonshire, dating from around 1700-1800 BC. Like Neolithic stone axeheads, Bronze Age axeheads also had both ritual and practical purposes and the detailed decoration on this example suggests it was a ceremonial or ritual object.

iii) Two Late Bronze Age spearheads from Cademuir Hill, Scottish Borders, dating from 1000-800 BC which are typical examples of Late Bronze Age weaponry. While such weapons had a primary ? and obvious ? function, they too had a secondary use as votive offerings, which would be deposited in a place of sacred or ritual significance. These examples were found together, indicating they were deliberately placed there and thus suggesting ritual intent.

iv) A hoard of 155 medieval silver coins from Dumfries, comprising a mixture of English and Scottish coins issued in the 13th and 14th centuries. The coins comprise various issues of Edward I and II of England and David II of Scotland.

v) A double-sided medieval pilgrim badge from Crail, Fife.  One side depicts the crucifixion while the other shows the Virgin and Child.  Pilgrimages to visit a saint?s shrine were an important part of popular religious belief and these badges could be purchased to demonstrate the journey had been made, as well as to indicate the status of the wearer as a pilgrim.

vi) A medieval silver gilt finger ring, Inchaffray, Perth and Kinross: a fine example of what is known as a fede ring, the bezel depicting a pair of clasped hands. These rings appear to have been used as a form of betrothal ring, the clasped hands indicating the union of marriage, while the hoop of the ring carries a religious inscription invoking the names of Jesus and Mary.

vii) Seventy objects of medieval and post-medieval date from Cromarty, Highland, consisting of a range of items representing the personal possessions of the inhabitants of medieval and early modern Cromarty. The objects are a mixture of personal, dress and household objects and offer an interesting insight into the type of everyday and commonplace material culture used by the majority of the population at the time. This includes material from the Netherlands and other continental imports, illustrating the wide range of goods which could be obtained, even away from major political and population centres


Black labradors not likely to injure severely or kill persons or animals

So held an Extra Division of the Court of Session in a decision published on 9 July 2009 on the application of the Animals (Scotland) Act 1987 in a case where the pursuer had been knocked over by the defender's boisterous 25 kg dog Ebony and suffered severe injuries to her knee worth £160,000 in damages if her claim could be sustained.

The 1987 Act imposes strict liability on the keeper of an animal causing injury or damage if "the animal belongs to a species whose members generally are by virtue of their physical attributes or habits likely (unless controlled or restrained) to injure severely or kill persons or animals … and the injury or damage complained of is directly referable to such physical attributes or habits".  Thus in essence the question in this case came to be, "Are fully grown black Labradors, by virtue of their physical attributes or habits, likely (unless controlled or restrained) to injure severely or kill persons or animals?"  The court's answer, formulated by Sir David Edward QC, was in effect No.

Scots Law News' basic sympathy for this outcome was somewhat tempered by an unpleasant experience in Edinburgh's Meadows one morning around the time the decision was published.  An exuberant young spaniel was rushing about off its lead, occasionally called to without any obvious effect by a jogging young mother also pushing a buggy containing an infant.  All of a sudden the dog spotted some pigeons grazing quietly in the grass; and within a second or two it had one of the birds struggling, in the end unsuccessfully, to escape its jaws.  The now standing mother shouted ineffectively at her animal and apologised pathetically to passers-by, explaining that her dog was culling Edinburgh's pigeon population (it wasn't clear therefore that this wasn't a regular occurrence).  One was left with the feeling that however lovable in general the pet might be, some owners do indeed need to learn how to control their potentially lethal weapons, or to concentrate on doing so rather than multi-tasking.  Scots Law News would have taken more seriously than the court (paras 24-25) the words of the pursuer's dog-handling expert:

"When training a dog of whatever size or breed, … it is essential to instil obedience or stop or return commands … A dog in a public place can be seen as a threat and can scare people.  It can run off and get into danger. … If not 'recall-proof', a dog should be kept on a lead when in a public place.  If his dog was running towards someone, he would command it to stop and return to him."


Lyon untamed?

Lord Uist's decision of February 2008, noted here in Scots Law News, that decisions of the Lord Lyon on the designations of those to whom arms had been granted were subject to judicial review, was upheld by an Extra Division of the Court of Session on 15 July 2009; but it was also held that, despite the general freedom of persons under Scots law to take whatever name they pleased, Lyon could refuse to give a territorial designation to persons whose arms had been accepted for the Public Register of All Arms and Bearings for Scotland.

Aviemore Wall left standing; Land Reform Act 2003 not retrospective?

Holiday-time perusal of the Strathspey and Badenoch Herald (otherwise known as the "Strathy") by Scots Law News revealed another non-success for the Land Reform (Scotland) Act 2003 in striking down barriers to access to land; this time in the popular Highland resort of Aviemore.

On 26 June 2009 Sheriff Principal Sir Stephen Young, sitting at Inverness, overturned an order by Sheriff A L MacFadyen requiring Aviemore Highland Resort Ltd (AHRL) to remove a fence and hedge blocking public movement between the centre of Aviemore (in particular the village's celebrated Tesco store) and the area between the village and the A9 road known as the Aviemore Highland Resort.  This area contains a number of hotels and retail and recreational facilities (although it is now some time since the latter included a go-kart facility much appreciated by your reporter's sons and other young males obsessed by the combustion engine, noise and the sensation if not the actuality of speed). 

Access between the two areas was once upon a time achieved by way of a road known as Laurel Bank Lane; but in 2004 the owners of the AHR erected a fence and "hedge" blocking the route (and also closed down the go-kart track).  According to the Strathy this is known locally as the "Berlin Wall". width=180

Early in 2008 the Cairngorms National Park Authority (CNPA) (within whose jurisdiction Aviemore sits) served AHRL with a notice under the 2003 Act requiring the removal of the blockage.  The Authority was successful before Sheriff MacFadyen but the Sheriff Principal held that the access rights granted by the Act did not exist before it came into force on 9 February 2005 and accordingly that its rights of access were not contravened when the Laurel Bank Lane barriers were erected in 2004.  Further, on the wording of the Act, it did not cover the continuing effect of the fence and hedge as a barrier to access.

The Strathy for 1 July 2009 reports a director of AHRL as saying:

"Prior to Friday's decision and as part of the phase two planning consent negotiations, we agreed with the CNPA to do … allow .. access at all times to the point under dispute at Laurel Bank Lane.  Furthermore we are currently preparing a detailed proposal for the new access which will be properly levelled off and will include suitable lighting.  Work will commence on this shortly.  We have, however, reserved the right to review the access position should it be deemed by ourselves and CNPA that there is unreasonable disturbance to our guests on the resort as a result of this access.  This has been agreed by the CNPA.  We will stand by this agreement despite the favourable decision from the Sheriff Principal."

width=180Scots Law News' paparazzi can confirm with the evidence attached that as at the end of July 2009 the fence and "hedge" remained in place, leaving Laurel Bank Lane a somewhat forlorn looking place despite the intense activity just a few feet away in the Tesco car park.  The former go-kart track and stadium is but a grassy hollow beside the Macdonald's Hotel; and presumably any resurrection of that once-popular facility is precluded by the need to avoid disturbing the repose of AHRL's (paying) guests.

Scots Law News will continue to monitor the situation, although it is thought that developments most likely depend on two factors, viz the solvency of AHRL and the success of Tesco's current application to move to another site in Aviemore on which (to your reporter's considerable relief) the parking of one's motorised transport (other, perhaps, than go-karts) will be a rather less tortured and torturing business than at present.  There seems to be no move to restore the go-karting facility; perhaps that is not really consistent with the idea of a national park.

Glenora’s coming home

Our Nova Scotia correspondent Mark Macneill has kindly alerted Scots Law News to the Supreme Court of Canada's reversal of the controversial previously noted decision of the Federal Court not to allow the Glenora Distillery to register "Glen Breton" as a trade mark for its whisky products.

The decision of the Supreme Court was published on 11 June 2009 and reported in the Cape Breton Post the following day, and we meantime refer our readers to this report.  In the Year of Homecoming, we feel the decision is probably to be given a slainte, and we await with interest an opportunity for a celebratory tasting.

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