Jonathan Mitchell QC

The Scottish Government today released a fair amount of background documentation on the decision to grant compassionate release to Megrahi (better indexed, I think, here on BBC Scotland). There are still a number of documents which for one reason or another haven’t been published, such as the representations made by the US government, for which the US Embassy refused permission.

The full text of Scottish Government policy on compassionate release has not however, I think, been made public. Thanks to a correspondent who sent me a copy of this, it is now published on this site. Continue Reading »

My last post covered two issues; the hypocrisy of the attack on the decision to release Megrahi, and the law relative to compassionate release of prisoners in Scotland. But in linking these I noted in passing that much of the attack on MacAskill was simply ignorant, and wrote “FBI Director Robert Mueller, in his much-quoted open letter to MacAskill, obviously intended primarily for US domestic consumption, thought the Justice Secretary was a ‘prosecutor‘.“. Continue Reading »

If Megrahi was indeed rightly convicted of mass murder, which I doubt, it is not in doubt that he acted on the orders of the Libyan government. He was a senior member of its intelligence service. Yet both the UK and US governments have for some years been on friendly terms with the people who, they say, ordered the destruction of PanAm 103. They dine with them. They have cocktails with them when they meet at mutual friends. The week before Megrahi’s release, as reported in the Washington Post, a delegation of four American senators led by John McCain met with Colonel Gaddafi to discuss the sale by the US to Libya of military equipment. In April, Hilary Clinton welcomed another member of the Gaddafi family, the régime’s National Security Adviser, to Washington. She said “We deeply value the relationship between the United States and Libya. We have many opportunities to deepen and broaden our cooperation. And I’m very much looking forward to building on this relationship. So, Mr. Minister, welcome so much here.” Continue Reading »

I will be speaking on issues relative to the new Upper Tribunal at this conference, organised by the Legal Services Agency, on 14 September.

Changes to the Tribunal System: The New Two-Tier System and Its Implications

On 3 November 2008 the UK Tribunals Service experienced its most radical change in 50 years when key aspects of the Tribunals, Courts and Enforcement Act 2007 were implemented. Continue Reading »

Professor James Hathaway of Melbourne University, author of “The Law of Refugee Status”, “The Rights of Refugees under International Law”, and many other leading texts on asylum law; editor of the Refugee Caselaw website; and a world renowned authority on the law of international protection, will be addressing an all-day seminar in Glasgow on Monday 5 October on issues as to refuge status and internal relocation. His work is constantly cited in, and by, courts throughout the common law world; a quick search on BAILII throws up no less than 180 cases in which he is cited as an authority. Continue Reading »

Gordon v Lynch, 2009 CSOH 116, is a decision of Lord Woolman on quantum in a personal injuries case notable only, so far as this blog is concerned, for its use of a hyperlink: something I have never seen before in a Scottish Courts decision. The third paragraph begins “ As a result of the accident, Sean sustained traumatic brain injury.” Continue Reading »

Albie Sachs, Justice of the South African Constitutional Court, is one of the great judges (and in one of the great courts) of our time. On 24 June he was in Edinburgh, first speaking to the first joint meeting of the four UK and Ireland Human Rights Commissions (I wasn’t there) and then at a meeting organised by the Scottish Commissioner for Children and Young Persons (I was). The topic at the second talk was how the landmark decision in the case of S v M, 2007 ZACC 18, in which the South African Constitutional Court held that the rights of children had to be taken into account in criminal proceedings against their mother (in their own right and not merely as an aspect of the mother’s rights), came to be made, and its resonance for Scotland. Jackie Kemp’s already written a good account of the event as a whole, and I intend here to pick up some miscellaneous issues rather than duplicate that. Continue Reading »

On 1 July, the Tribunals Service launched a consultation as to the rules to be used for asylum and immigration cases in the Upper Tribunal when the AIT merges with it next year. There is to be no consultation on the rules for asylum and immigration cases at first instance: the Tribunals Service notes without comment “The Government has confirmed that the current Asylum and Immigration Tribunal rules will be amended to become procedure rules for the First-Tier Immigration and Asylum Chamber.”

The consultation exercise runs for twelve weeks, and views are apparently sought from “stakeholders” although goodness knows whether they have been told this. This is the full consultation paper, with proposed rules and practice statements. There are knock-on changes in the provisions for appeal to the Court of Session. Rather gallingly, Rule 18 refers to legal aid funding being “granted by the Scottish Legal Aid Board” although there is still no provision for legal aid before the Tribunal in Scottish cases.

Two recent studies suggest that the answer largely depends on the tribunal.

In one, ‘Tribunals Ain’t What They Used To Be‘, which is summarised in the March 2009 edition of the newsletter of the Administrative Justice & Tribunals Council, Professor Michael Adler of Edinburgh University looked at five tribunals. These were the Criminal Injuries Compensation Appeal Panel; the Social Security and Child Support Tribunal; the Additional Support Needs Tribunal (Scotland); Special Educational Needs and Disability Tribunals (England); and the Employment Tribunal. As he comments, “research and ‘experience’ seemed to have made it clear that having a representative (although not necessarily a legal representative) greatly increased the prospects of a successful tribunal outcome… across the board, the ‘premiums’ associated with representation were 15-18 per cent.” Continue Reading »

The increasingly important issue of Unaccompanied Asylum Seeker Children (UASCs), children under 18 who are not cared for by any adult in this country, is the topic of a seminar on Friday 5th June 2009 organised jointly by the Glasgow Immigration Practitioners’ Group, the Murray Stable, and the Scottish Refugee Council. Continue Reading »