More on PII from Private Eye

The current issue of the magazine Private Eye contains the following article:

LOCKERBIE APPEAL: Howells of outrage

Foreign Office minister Kim Howells has revealed that the Scottish judges hearing the Lockerbie bombing appeal have agreed to the [UK] government’s request to keep under wraps evidence that is crucial to the defence of [Abdelbaset] Ali Mohmed al-Megrahi, the Libyan serving life for the murder of [270] people killed when Pan Am flight 103 was blown from the skies.

The judges apparently gave their ruling at the end of the secret hearing in August to discuss the evidence from a “foreign power” (…) which is understood to relate to the bomb’s timing device. But as Megrahi’s defence team and the public were excluded from the court, no one knew about it until Howells responded to a request for an update from former MP Tam Dalyell.

Instead of allowing Megrahi’s lawyers access to this piece of evidence, which forms one of the six grounds of appeal identified by the Scottish criminal cases review commission (SCCRC) the judges are instead to appoint a “special counsel”, supposedly to represent Megrahi’s interests. According to Howells, this special counsel “will be provided with a confidential summary of the submissions made by the Advocate General at the last (August) hearing”.

He or she will need much more than that. The evidence which convicted Megrahi was highly complex, multinational and full of contradictions and anomalies – particularly the evidence surrounding the damning fragment of timing device said to link the bomb to the Libyans and Megrahi. Lawyers preparing his appeal need all the evidence to ensure they have the full picture; but as it stands they do not even know which “foreign power” this piece of evidence comes from and thus how significant it is.

Will a “special counsel” with no detailed knowledge of the case or of the modus operandi of other terrorist organizations operating at the time really be able to assess and advise Megrahi’s lawyers about the importance of this evidence after being given a “summary”?

One of the most worrying features of the Megrahi case identified by the Scottish CCRC is that this evidence – and other material – pointing to the Libyan’s innocence was concealed from his trial in the first place.

Jim Swire, whose daughter Flora perished in the atrocity, said the foreign office’s reliance on public interest immunity to keep secret documents that police, prosecutors and the SCCRC have had in their possession for years, showed that politics was again being allowed to override justice.

In January 2005 journalist [Ian] Ferguson used freedom of information laws to unearth a staggering agreement between the crown and the US authorities not to introduce such material – even at the price of a fair trial, it would seem.

The UK government of course dismisses claims of interference in Megrahi’s appeal. “The decision by the foreign secretary to assert public interest immunity (PII) in relation to certain material is entirely appropriate and in accordance with the rule of law. It is the foreign secretary’s assessment that the release of this material would do real and lasting damage to the UK’s relations with other states and the UK’s national security,” says Howells.

[Note by RB: My understanding is that the “special counsel” will make submissions to the court (in closed session) about whether, and in what form, the mystery documents should be released for use in the appeal. It is perfectly possible that the court will override the Foreign Secretary’s PII certificate and order the documents to be disclosed to Megrahi’s legal team, either as they stand or in a redacted form satisfactory to that team. If the court does not order the release of the documents, the question then arises of whether the appeal can be (and be seen to be) fair within the meaning of art 6 of the European Convention on Human Rights. That is an issue that could go from the Scottish courts to the Privy Council in London and, ultimately, to the European Court of Human Rights in Strasbourg.]