Ninth (public) procedural hearing: first day

Today’s lengthy procedural hearing was taken up with (a) submissions on the appellant’s most recent petition for disclosure of material in the hands of the Crown; and (b) case management and timetabling.

As regards (a), the material in question is mainly the pre-trial witness statements of the more than 1100 witnesses who featured on the Crown’s list at the Zeist trial. The appellant’s lawyers claim that upwards of 800 of these statements have not yet been handed over. The Crown stated today that it was willing to do so, subject to any public interest immunity issues that might be raised by the Advocate General on behalf of the United Kingdom Government. The Advocate General’s counsel, Raymond Doherty QC, indicated that in the vast majority of cases there was unlikely to be any PII concern and that these statements could be handed over by the Crown within fourteen days. In respect of any few statements in respect of which the UK Government’s assessment was that PII issues arose, the matter would have to return to the court.

As regards (b) Maggie Scott QC for Megrahi asked that the Crown be ordered to answer in writing the appellant’s detailed grounds of appeal. This would serve the useful purpose of clarifying the issues of fact and law on which there was genuine dispute between the parties and of identifying the factual and legal issues on which the parties were at one. The Crown responded that this was not normal Scottish practice and questioned whether it would serve any beneficial function.

The appellant’s legal team had been asked for this hearing to prioritise their grounds of appeal and to indicate the order in which the court should be asked to address them. Ms Scott stated that the appellant wished first consideration to be given to grounds of appeal 1 and 2 relating to the reasonableness of the verdict (ie whether any reasonable tribunal, on the evidence led, could have convicted Megrahi). She stated that the appellant’s legal team would be in a position to argue these grounds in April 2009 and that she anticipated that perhaps four weeks of court time would be required. The next chapter to be addressed should be those portions of ground of appeal 3 relating to the evidence of the Maltese shopkeeper, Tony Gauci. Ms Scott tentatively suggested that this section of the hearing might be scheduled for July 2009 and that as much as eight weeks might be required.

Ms Scott also requested the court at this stage to forward the grounds of appeal to the lawyers who represented Mr Megrahi at the original trial, in order to give them an opportunity, if so minded, to respond to the issues raised and the criticisms made of them in ground of appeal 4 relating to defective or inadequate representation.

The Crown did not indicate any strong views on these prioritising and timetabling matters. The one particularly interesting thing that Ronnie Clancy QC for the Crown disclosed was that, as of today, the Crown did not concede that even if Tony Gauci’s evidence were wholly discredited there remained insufficient evidence to justify the conviction of Megrahi. This is a view that few legal observers share.

The hearing was continued until tomorrow (Friday). It is to be expected that the court will then issue its decision on most of the issues outlined above. The other matter to be dealt with tomorrow is the protocol governing relations between the appellant’s legal team and the special (security-vetted) advocate appointed to consider the mystery document(s) in respect of which the UK Foreign Secretary has already asserted public interest immunity and the non-disclosure of which formed one of the Scottish Criminal Cases Review Commission’s grounds for holding that a miscarriage of justice may have occurred. It is possible that when these matters are discussed tomorrow, the court will have to go into closed session.

The report on the BBC News website can be read here. The Herald's report of the proceedings can be read here. It appears to be the only Scottish or UK newspaper to provide any coverage. Like the BBC, it concentrates on the application for the criminal records of witnesses to be disclosed. Trust the British media to focus on the peripheral and inessential!