Second procedural hearing

Today's procedural hearing before Lords Hamilton, Kingarth and Eassie was, as anticipated, largely concerned with the document in the hands of the Crown, seen and founded upon by the Scottish Criminal Cases Review Commission, that the appellant's legal team is seeking to have disclosed to it. On 11 October the Crown was given six weeks either to get the consent of the foreign country which supplied it to disclosure, or to lodge detailed written reasons as to why the document should not be handed over. The Advocate General for Scotland (who provides Scottish legal advice to the UK Government Departments in London) was also instructed, if so advised, to lodge written answers.

The Lord Advocate (who, as well as being head of the Scottish public prosecution system, is legal adviser to the Scottish devolved Government) lodged answers basically saying no more than that, for reasons that she did not see fit to vouchsafe, the document in question was not disclosable. The Advocate General's answers objected to disclosure on the basis of Public Interest Immunity (PII), but did not deign to disclose what aspects of the public interest would be prejudiced by the document's being handed to the appellant (it already, of course, having been seen by the SCCRC); nor had the Advocate General had the courtesy to lodge a Public Interest Immunity Certificate which would have provided at least some enlightenment.

Maggie Scott QC for Mr Megrahi argued that the Advocate General's PII objection should be dismissed without further argument given that he had not produced in his written answers any material to support it and because it had not been adopted by the Lord Advocate who, in the Scottish criminal justice system is the officer in whose hands alone rests the responsibility for protecting the wider public interest (subject, of course, to ultimate supervision by the High Court). Ronnie Clancy QC for the Crown, however, stated that although no mention of any public interest objection to disclosure was made in the Lord Advocate's answers, this was simply because she had decided that, on this issue, she should defer to the UK Government and the Advocate General since responsibility for foreign relations is non-devolved and rests with the UK Government and so that aspect of the public interest (ie preserving good relations with the foreign government that supplied the document and which has refused to consent to its being disclosed) should be ceded to the Advocate General.

The court, "with great reluctance" allowed the Lord Advocate and the Advocate General six weeks to provide full written reasons for their claim to PII and appointed all parties to lodge by that date a note of their legal arguments and the authorities supporting them on the PII issue. It then fixed a one day hearing for 20 February 2008 for the issue to be fully debated in open court. The Lord Justice General, Lord Hamilton, made it abundantly plain that the court regarded the conduct of both the Lord Advocate and the Advocate General in failing, within the generous period of six weeks allowed them on 11 October, to provide written answers that set out the substance of their objection to disclosure, with full supporting reasons, as highly unsatisfactory.

Two other matters were discussed at the hearing. The first was the scope of the appeal. The Crown had earlier stated that it would consider asking the court to exercise its discretion to refuse to allow to be argued all (or some) of the Grounds of Appeal that related to matters that had been investigated by the SCCRC but rejected by that body. Today Mr Clancy went considerably further: the Crown now wished to argue that, as a matter of law, the Appeal Court was not permitted to hear Grounds of Appeal that had not been accepted by the SCCRC. That is a legal issue that has already been decided by a three-judge bench who held in 2004 (http://www.scotcourts.gov.uk/opinions/XC956.html) that there was no such restriction on the Grounds of Appeal that could be heard. Nothing daunted, Mr Clancy asked for a five-judge court to be convened to reconsider the matter. The court ordered the Lord Advocate to submit within one month a written note setting out her legal arguments and appointed the appellant to submit written answers within one month thereafter. A five-judge court would then be convened to hear oral argument.

The final issue raised was the problem the appellant's legal advisers have been encountering in gaining access to the productions used in the original trial. Dumfries and Galloway Police (who are the custodians of most of them) had apparently been advised by the Crown that the appellant could not have access without an order of the court. Mr Clancy indicated that the Crown did not wish to be obstructive and that he was sure that the matter could be resolved amicably. Ms Scott's rejoinder was that the Crown had been nothing but obstructive. The court indicated that if any further problems were encountered in this regard the matter should be brought back before the court.

Observers of the appeal process have speculated that one of the Crown's principal tactics would be to seek to delay the proceedings at every turn. If corroborative evidence of this were needed, today's hearing has supplied it in abundance.

Once again, there was a good attendance on the public benches. Among the relatives present was Dr Jim Swire and Ms Marina Larracoechea Azumendi. Also in attendance was Edwin Bollier, principal of MeBo, the Zürich company that manufactured the timer that is alleged to have detonated the bomb on board Pan Am 103. The acoustics of the courtroom were somewhat better than on the previous occasion. But they still leave a lot to be desired.