Fourth procedural hearing

A procedural hearing on whether to uphold or reject the United Kingdom Government’s claim of Public Interest Immunity (PII) in respect of the foreign document relating to timers (the non-disclosure and contents of which formed grounds on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice in the Lockerbie trial) is to be held in the High Court of Justiciary in Edinburgh on Tuesday, 27 May 2008.

Informed observers anticipate that the Lord Advocate and the Advocate General for Scotland (representing the UK Government) will seek to argue that the hearing should be held behind closed doors because of the sensitivity of the material to be discussed; and that, if disclosure of the document is ordered by the court, it should not be to the appellant and his legal team, but to special counsel selected for the purpose and vetted in advance by the Crown. This is a form of disclosure that has been judicially recognised in England (and is sometimes – but not often – resorted to) in terrorism trials where the argument is that disclosure directly to the accused and his lawyers might prejudice on-going terrorism investigations. It is difficult to see how that rationale could apply to the Lockerbie appeal, where the crime was committed almost twenty years ago; the trial concluded over seven years ago; and, as far as anyone can tell, there are no continuing investigations being conducted into the affair since, the authorities confidently assure us, the Lockerbie trial established once and for all who was responsible for the crime.

Earlier posts on this blog on the PII issue can be found here and here and here.

Today's issue of The Herald has articles on the subject entitled "Bid to ban Lockerbie lawyers in secrets hearing" and "Another twist in controversy surrounding Lockerbie trial" and an editorial entitled "Lockerbie evidence".

The other major preliminary issue that remains to be decided is the fundamental one of the scope of the appeal. Are Megrahi’s grounds of appeal to be limited to those issues which the Scottish Criminal Cases Review Commission decided might have given rise to a miscarriage of justice; or can his grounds cover other issues as well, including those that were specifically not accepted by the SCCRC? A procedural hearing on this subject is to be held (before five judges, since the Crown is seeking to overturn an earlier case decided by three judges) at the end of June. Relevant posts on this blog can be found here and here.