High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998
| Jurisdiction | UK Non-devolved |
| Citation | SI 1998/2251 |
| Year | 1998 |
1998 No. 2251
UNITED NATIONS
The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998
Made 16th September 1998
Laid before Parliament 17th September 1998
Coming into force 18th September 1998
At the Court at Heathrow, the 16th day of September 1998
Present,
The Queen’s Most Excellent Majesty in Council
Whereas under Article 41 of the Charter of the United Nations the Security Council of the United Nations has, by a resolution adopted on 27th August 1998, called upon Her Majesty’s Government in the United Kingdom to take certain actions to facilitate the conducting of criminal proceedings under Scots law in the Netherlands:
Now therefore, Her Majesty, in exercise of the powers conferred on Her by section 1 of the United Nations Act 19461, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered:–
Citation and commencement
1. This Order may be cited as the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 and shall come into force on 18th September 1998.
Interpretation
2.—(1) In this Order, the following expressions have, except where otherwise expressly provided, the meanings hereby assigned to them, that is to say—
“the 1995 Act” means the Criminal Procedure (Scotland) Act 19952;
“Lord Commissioner of Justiciary” includes a person appointed under—
(a) section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 19853(re-employment of retired judges); or
(b) section 35(3) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 19904(temporary judges);
“premises of the court” means any premises in the Netherlands made available by the Government of the Netherlands for the purposes of proceedings conducted by virtue of this Order; and
“proceedings” includes anything which requires to be done or may be done in relation to proceedings by any person at any time.
(2) Expressions used in this Order and the 1995 Act have the meaning assigned to them by that Act.
Proceedings before High Court of Justiciary in the Netherlands
3.—(1) For the purpose of conducting criminal proceedings on indictment against Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah (in this Order referred to as “the accused”) on the charges of conspiracy to murder, murder and contravention of the Aviation Security Act 19825specified in the petition upon which warrant for arrest was issued by the Sheriff of South Strathclyde, Dumfries and Galloway on 13th November 1991, the High Court of Justiciary may, in accordance with the provisions of this Order, sit in the Netherlands.
(2) Except as provided for in this Order, proceedings before the High Court of Justiciary sitting in the Netherlands shall be conducted in accordance with the law relating to proceedings on indictment before the High Court of Justiciary in Scotland.
Initiation of proceedings conducted by virtue of this Order
4.—(1) The Lord Advocate may give a notice under this article to the Lord Justice Clerk where it appears to him that both of the accused are present in the Netherlands.
(2) On receipt of a notice given by the Lord Advocate under paragraph (1) above the Lord Justice Clerk shall forthwith direct that, in respect of the proceedings against the accused and subject to articles 6 and 14 of this Order, the High Court of Justiciary shall sit in the Netherlands at the premises of the court.
(3) Without prejudice to paragraph (4) below, a notice given or a direction made under this article shall not be called in question otherwise than in the proceedings for which a court shall have been constituted under article 5 of this Order.
(4) Where the Lord Advocate withdraws a notice under paragraph (1) above by a further notice to the Lord Justice Clerk, the Lord Justice Clerk shall withdraw any direction he has made.
(5) Anything which the Lord Justice General requires, or has power, to do in relation to criminal proceedings shall, in relation to proceedings conducted by virtue of this Order, be done by the Lord Justice Clerk.
Constitution of court
5.—(1) After he has made a direction under article 4 of this Order, the Lord Justice Clerk shall appoint three Lords Commissioners of Justiciary to constitute a court for the purposes of any trial to be held in the course of proceedings to be conducted by virtue of this Order, and shall nominate one of them to preside.
(2) The determination of any question of law arising in any such trial shall be according to the votes of the majority of the members of the court, including the presiding judge.
(3) The court shall conduct any such trial without a jury.
(4) For the purposes of any such trial, the court shall have all the powers, authorities and jurisdiction which it would have had if it had been sitting with a jury in Scotland, including power to determine any question and to make any finding which would, apart from this article, be required to be determined or made by a jury, and references in any enactment or other rule of law to a jury or the verdict or finding of a jury shall be construed accordingly.
(5) At the conclusion of any such trial, the court shall retire to consider its verdict, which shall be determined by a majority and delivered in open court by the presiding judge.
(6) In the event of a verdict of guilty—
(a)
(a) the presiding judge shall pass sentence; and
(b)
(b) without prejudice to its power apart from this paragraph to give a judgment, the court shall, at the time of conviction or as soon as practicable thereafter, give a judgment in writing stating the reasons for the conviction.
(7) Any reference in any enactment or other rule of law to—
(a)
(a) the commencement of the trial; or
(b)
(b) the swearing of the jury,
shall be taken to be a reference to the reading of the indictment to the court by the clerk.
(8) In the application of section 87 of the 1995 Act (non-availability of judge) to such proceedings, any reference to the clerk of court includes a reference to the senior remaining judge.
Questions arising prior to trial
6.—(1) Questions arising in proceedings conducted by virtue of this Order prior to the reading of the indictment to the court by the clerk shall be dealt with in the ordinary way.
(2) Any such question shall be heard and determined at the premises of the court, unless the accused are...
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