Month: September 2009

A Scottish Government motion that the Justice Secretary's decision to release convicted Lockerbie bomber Abdelbaset al-Megrahi was taken in accordance with the Scottish legal system was defeated in the Scottish Parliament on 2 September 2009, with 73 MSPs in favour of various opposition amendments, 50 government supporters and one abstention.

The debate was of a much higher standard than the dreadful questions session the week before, with most speakers displaying a degree of reflective thought on the subject and, in some cases (notably Elaine Murray), genuine passion and anger against the Justice Secretary's decision.  It was however disappointing to see the votes go limply down party lines, with the honourable exceptions of Labour's Malcolm Chisholm, who spoke and voted in support of the government, and the Conservative Ted Brocklebank, who abstained.  The opposition parties' major objective, it seemed, was to inflict a bloody nose on the government; but, despite claiming the support of the majority of the Scottish people, they lacked the political courage to make the vote one of confidence that would have enabled them to test the claim electorally.

What has been shown by the debate and the public discussion in the run-up to it? 

First, the Justice Minister's decision was undoubtedly political; but not, we think, for the reasons usually suggested by his critics in the political and media worlds.  There was certainly no deal with the UK Government (although it has become clear, if it was not so already, that the UK Government did indeed want Megrahi released).  But the SNP Government has consistently opposed the UK-Libya prisoner transfer agreement (PTA), and was clearly no more minded than usual to bend to the will of Whitehall on this matter.  On the other hand, for Megrahi to die in a Scottish prison might have many bad consequences for Scotland, whether in exposing the country to possibilities of "revenge" terrorist attacks (whether from within or without Scotland), or, possibly more likely, creating significant difficulties for Scottish businesses in economic relationships across the Middle East and perhaps further afield.

Further, the decisions to be made were, as shown in the blog of Jonathan Mitchell QC, open to the possibility of judicial review.  To refuse the application for compassionate release certainly invited that.  A decison to refuse release under the PTA might also be challenged by Megrahi, while going the other way might lead to challenges from the USA, where there was probably a "legitimate expectation" that Megrahi would serve his sentence in Scotland.  This explains the elaborate processes of hearing, not only the US victims' families, but Megrahi himself.  The visit to Megrahi at Greenock prison looks most like an effort to proof against judicial review any decision to refuse either the PTA or the compassionate release application, rather than an attempt to do a deal with him to drop his appeal in return for release.  The record of that interview cannot be read as evidence that such a deal was even implicit in the meeting, and to suggest that the record had been tampered with to protect Mr MacAskill is to impugn the professional integrity of the civil servant who wrote it.  In any event, as suggested above, the Justice Minister had no interest in implementing the PTA in Megrahi's case.  With compassionate release, on the other hand, Megrahi could (at least theoretically) be recalled to his Scottish prison if circumstances justified that step, and the US legitimate expectations were not necessarily completely frustrated.

The decision to grant compassionate release was clearly one the Justice Minister was entitled to make under the Prisoners and Criminal Proceedings Act 1993 section 3.  In the parliamentary debate most speakers acknowledged this fact and the difficulty of the decision to be made, suggesting that in no sense was it an open and shut matter, with the atrocity of which Megrahi stands convicted being of such a nature that compassionate release could not even be contemplated.  Was the release too early, in the sense that the medical reports were not categorical about the likelihood of Megrahi's demise within three months (the period mentioned in the Scottish Government's policy on compassionate release (para 4.1)?  However the same policy is also clear that there are no fixed time limits for the prisoner's life expectancy; it also imposes no requirement whatever to take account of the nature of the offence that brought him to the prison in the first place.  The consistency of the other professional advice given to the Justice Secretary under the policy – by the prison governor, prison social workers and the Parole Board – is also impressive support for the decision to release unless we see them as also engaged in a conspiracy to deny justice to the victims and their families.  The policy, it should finally be noted, was drawn up in 2005 under the SNP Government's predecessors in office.

Might the release have been to some secure place in Scotland?  Matters were complicated for the Justice Secretary in the run-up to the debate by Strathclyde Police claims that they could have handled the operation if necessary.  But inability was not the ground for rejecting the option; rather the basis of the decision was a judgement about whether the scale of use of resources was justifiable against the alternatives and about the impact upon healthcare facilities and their other patients and staff if Megrahi was to be kept and given treatment in Scotland.  Jonathan Mitchell argues that the terms of the Scottish Government policy anyway precluded the possibility, inasmuch as they require arrangements to be in place for the prisoner's supervision, care and treatment.  Scots Law News is not quite sure about this, since presumably such arrangements could have been put in place.  But we think that the Justice Secretary's actual decision to release to Libya was not irrational or unjustifiable. 

Was it misjudgement or naivete for the Justice Secretary not to have anticipated the scenes of welcome for Megrahi at Tripoli airport, with Saltires waving prominently at the foot of the aircraft steps?  Scots Law News has already expressed its doubts about the actual scale of the welcome, and there were no repeats during the festivities in Libya shortly afterwards with which Colonel Gaddafi's 40 years in power were celebrated, apart apparently from the briefest glimpse of Megrahi in a film running through the highlights of Gaddafi's rule.  There is film of Gaddafi meeting Megrahi, but it does not seem to have been at the airport or otherwise in public.  Critics were most worried about the negative impact upon Scotland's image in the USA; but no-one reflected on the possible positives for Scotland in other parts of the world, or indeed for some otherwise possibly disaffected parts of our own population.

Finally, the Justice Secretary made clear throughout his acceptance of the judicial process and Megrahi's conviction.  In no sense can his decision to release be seen as even covert recognition that Megrahi was not guilty; and since it was not the result of a deal with Megrahi or anyone else, it is also clear that the decision was not made to protect the Scottish legal system from embarrassment through continuing appeal processes on Megrahi's behalf.  One suspects that the Justice Secretary was as surprised as anyone else by Megrahi's decision to drop his appeal.  That decision by Megrahi is the least satisfactory aspect of the whole affair, and Alastair Bonnington's suspicion, that it was made under instruction from a Libyan Government thinking that this was the only way to get Megrahi home under the PTA, still strikes Scots Law News as the most likely of the possible explanations so far.

But we were fascinated to learn from a source close to the Scottish Criminal Cases Review Commission that while the Criminal Procedure (Scotland) Act 1995 makes it an offence to disclose the Commission's 'Statement of Reasons' to anyone but the applicant, Crown and and High Court, section 194(1)f of the Act enables the Justice Secretary to permit publication of the report (apparently 800 pages plus 16 ring binders of appendices).  There are some indications that Mr MacAskill may do this, provided various clearances can be obtained.  Presumably that won't be forthcoming in its entirety, given the UK Government's public interest immunity arguments when the appeal was in court.  But even partial publication might have the effect of prompting some further process of inquiry, whether originating in Scotland or somewhere else such as the United Nations.  Otherwise we face the prospect of eternal uncertainty about the worst terrorist atrocity ever committed in Britain and about whether justice was really done, whether for the victims, their families or Abdelbaset Megrahi.

Today is the first day of autumn, and Scots Law News bids the barbecue summer farewell with a few items that came to its attention when not focused on the Megrahi release (to which, no doubt, it will return).

First, on the Scottish Courts website has appeared the judgement of Sheriff J K Tierney of Aberdeen in Marjandi Ltd v Bon Accord Glass Ltd.  Although posted on the website only on 9 July 2009, the judgement was actually handed down on 15 October 2007.  The case was about the very contemporary Commercial Agents (Council Directive) Regulations 1993.  For the purposes of applying the regulations the sheriff had to decide whether or contracts for the installation of conservatories or house extensions were for the sale of goods (if yes, the regulations applied).  The alternative analysis was that the contracts were for the supply of work and materials.  Beginning from the relatively orthodox starting point of the Stair Memorial Encyclopaedia article on "Building Contracts", Sheriff Tierney is led into discussion of Gaius' Institutes and its discussion of contracts for the use of gladiators and the manufacture of gold rings, and of Pothier's Treatise on the Contract of Hire.  He also discusses passages from Bell's Commentaries and Principles and the leading case of McIntyre v Clow (1874) 2 R 278, before concluding that the conservatory/extension contracts are not sales of goods but are rather contracts of locatio operis faciendi, to which the 1993 Regulations do not apply.  Scots Law News will have to leave it to our colleagues in the Edinburgh Legal History, Commercial Law and European Private Law blogs to comment on the law; but we do like to imagine the expressions of the litigants on finding their businesses being analogised with the supply of gladiators in ancient Rome.

Second, Scots Law News confesses to a great admiration of the recent book by Lord Rodger of Earlsferry entitled The Courts, the Church and the Constitution: Aspects of the Disruption of 1843 (Edinburgh University Press, 2008) (see reviews at (2009) 125 LQR 522; (2009) 13 Edin LR 173); but was nonetheless slightly surprised to find it cited in the opening paragraph of Lord Uist's opinion (published 31 July 2009) in Moderator of the General Assembly of the Free Church of Scotland v Morrison and others [2009] CSOH 113.  Perusal of the rest of Lord Uist's opinion, and to a further case cited in it, Free Church of Scotland (Continuing) v Free Church of Scotland 2005 SC 396 (Lady Paton), reveals that Lord Rodger will probably need to add a further chapter in any second edition of his book, to take account of the split in Free Church ranks that took place in 2000, and the consequences of which are being fought out in the courts much as happened in 1843 and again in Free Church of Scotland v Overtoun (1904) 7 F (HL) 1.  Lady Paton held in 2005 that the seceding ministers and members of the FCC were not entitled to the central funds and properties of the Free Church; and Lord Uist takes the same line with regard to the entitlement of the seceders to remain in occupation and possession of the church and manse at Broadford in Skye.  The basis of the FCC argument was their continued adherence to the fundamental principles of the Free Church, but Lord Uist held that if this argument was correct, "the result would be astonishing and lead to chaos … [T]he process of groups leaving the FC could go on ad infinitum and, where that process did not involve departure from fundamental principles, the court would be powerless to intervene to regulate property rights and the groups setting up parallel structures would just be left to get on with it" (para 75).  No doubt his Lordship was also relieved that the decision meant that he did not have to go into the fundamental principles concerned and decide whether or not they had been departed from!  Nor does there seem to have been any challenge of the kind that was made in the original Disruption cases against the Court of Session having any jurisdiction at all in cases of this kind.

Third, Scots Law News is grateful to cyber correspondent Dr Abbe Brown for drawing our attention to the judgment of Sheriff Principal B A Lockhart  at Ayr in Mackie t/a Aerial Photography v Askew, Largsholidaylets.co.uk. delivered on 11 August 2009 and holding that Ayr Sheriff Court had jurisdiction to determine a copyright infringement case in which the alleged infringement consisted of unauthorised posting of the Troon-based pursuer's aerial photographs of Largs on a commercial website advertising the defender's rental properties in Largs.  The pursuer had placed the photographs on his website, along with clear assertions of copyright and moral right claims, on his website to advertise his photography services.  The defender's argument was that the alleged wrong, if any had taken place, must have done so either in Largs or in the defender's residence at Wemyss Bay; in either case, the appropriate jurisdiction was therefore that of Greenock rather than Ayr Sheriff Court.  Sheriff Principal Lockhart finds that a basis for jurisdiction in delict is the place where the harm occurred and that this might be "anywhere that the defender's website could be seen", which included places within the jurisdiction of Ayr Sheriff Court.  the learned Sheriff Principal says he is "fortified" in his view "by a consideration of the recent textbook Contemporary Intellectual Property Law and Policy by MacQueen Waelde and Laurie … para 22.17".  No doubt the forthcoming second edition of that fine work, first published by Oxford University Press in 2007, will in turn be fortified by citation of the Sheriff Principal's decision at the relevant place.

Fourthly, and much more briefly, Scots Law News has been told that there is now a Facebook site for the support of the Naked Rambler.  Since Scots Law News is not a member of Facebook, or any other social networking website, we have been unable to verify the link, but are sure those of our readers who do network socially in cyberspace will let us know if it holds good.  Presumably it can only be a matter of time before Twittering too becomes part of the nude pedestrianism scene.

Finally, as a way of passing the idle summer days of the academic lawyer, Scots Law News has investigated what was the final Scottish appeal decided by the House of Lords.  The answer (on which, however, we stand to be corrected) seems to be Mitchell v Glasgow City Council [2009] UKHL 11, in which the speeches were published on 18 February 2009.  At least it was an interesting case in its own right, as noted here in Scots Law News.