Crown's account of 12th procedural hearing

[The Crown Office (headquarters of the Scottish prosecution system) provides relatives of those killed aboard Pan Am 103 with accounts of proceedings in court in connection with the current Lockerbie appeal. I am grateful to one of these relatives (who, for the avoidance of doubt, is not Dr Jim Swire or, indeed, any of the UK relatives) for supplying me with the appended notes distributed by the Crown Office following the twelfth procedural hearing this past week.]

Petition for recovery of documents

On the 17th of March 2009 the Court granted an order of recovery in relation to a number of calls where they sufficiently related to the grounds of appeal and where the Court was persuaded that recovery will serve a proper purpose.

Call 1 in the appellant's petition sought material from 20 December 1988 to date showing ortending to show: (i) contact between police officers and other investigators (whether British, Maltese, German or American) and the witness Tony Gauci; and (ii) contact between prosecutor and those acting on their behalf and the witness Tony Gauci.

The Court refused to order recovery in relation to Call 1 on the basis that it was too wide and that it was not sufficiently related to any ground of appeal or any identifiable ground of appeal. The same remarks were made in relation to the refusal to grant any order for calls 1B (1.4) and 9. Call 1B (1.4) sought material relating to any US personnel contact with Tony Gauci. Call 9 sought material showing or tending to show information relating to the identity of the appellant was disclosed by the prosecuting authorities to journalists and other members of the press.

Where the Court did grant orders for recovery these were in relation to calls which were lessgeneral and more specific.

This specification was amended during the course of the hearing in February by the appellant's legal team. Some of you may have noticed reference to Call 1A and call 1B in the Opinion issued by the Court. These calls were added by the appellant during the proceedings.

In order to provide you with as much information as possible we thought it would be useful toprovide you with further detail in relation to the calls where recovery was granted by the Court.

•Call 1B (with the exception of 1.4) This call sought material relating to 21 specific areas which were listed in the appellant'spetition. For example material relating to the showing of photographs to Tony Gauci on specific dates and information on the preparation of photospreads shown on specific dates. In our note of the 23rd of February we provided a list of these calls which run from 1.1 to 1.21. These were granted with the exception of 1.4 as explained above.

•Call 1A This call sought all documents including photographs and videos showing or tending toshow the image of Abo Talb shown to Gauci on 2 October.

•Call 2 This call sought material showing or intending to show the enquiry in relation to the "potential" witness David Wright.

•Call 3 This call sought material from 5 September 1990 showing or tending to show policeactions and enquiries relating to the Feast of the Immaculate Conception (8 th December1988).

•Call 4 This call sought material showing or tending to show the conduct of the identification parade which took place on 13 April 1999 attended by the witness Tony Gauci.

Just because an order has been granted does not mean that the Crown holds any moreinformation than has already been provided to the defence. However it does require the Crown to check the material in its possession or the possession of the police forces subject to its directionto ensure that all material relating to the above calls is provided. If there is further material then this will be provided to the appellant's legal team unless there is a plea of public interest immunity by either the Crown or the UK Government.

Any material held by the Crown, which has not previously been provided to the defence and is covered by the calls granted by the Court, will require to be provided to the defence by Tuesday 9th June 2009.


Procedural Hearing 17th – 18th March 2009

People
The hearing called before three Judges - Lord Justice General, Lord Kingarth and Lord Eassie.

Counsel for the Crown are Ronald Clancy QC, Nick Gardiner and Douglas Ross

Counsel for the appellant are Maggie Scott QC, Jamie Gilchrist QC, Shelagh McCall and Martin Richardson.

Alan Summers QC appeared on behalf of the Advocate General for Scotland.

Hearing Grounds 1 and 2

The appeal hearing on Grounds 1 and 2 (Insufficient Evidence and Unreasonable Verdict) of theGrounds of Appeal is due to begin on Tuesday the 28th April 2009. The Court was addressed byMaggie Scott QC in relation to a lengthy written submission prepared by the appellant and lodged in the afternoon of the 17th March 2009. She wished to reassure the Court that the “bulk” of papers were made up of productions and authorities. She advised that the document was 298 pages long but that there were no new issues raised within the paper other than Ground 1 had subsumed into Ground 2. She did accept that there was considerably more information thancontained within the grounds of appeal.

Ronnie Clancy QC addressed the Court in relation to his concerns on the note lodged. The Crown had two weeks as of Tuesday 17th March 2009 to lodge a response to the appellant’s note and only received the 298 page document on the 17th March 2009. The Crown had only a limited opportunity to survey the note prior to the hearing but already observed that the note contained factual and legal arguments which were not contained in the original grounds of appeal. Ronnie Clancy QC indicated to the Court that of the list of 82 authorities, lodged with the note, 45 ofthose do not feature in any previous lists of authorities. There is a list of 99 productions which includes transcripts of evidence of 47 trial witnesses. Of these witnesses only 8 are mentioned in Grounds of Appeal 1 and 2. Thus there are 39 transcripts that the Crown could not reasonably have anticipated would feature in the note of argument. Moreover it is only when the note gets topage 100 that it starts to bear any resemblance to the grounds of appeal. There are detailed submissions within the note that are not mentioned in the grounds of appeal. The structure of the note does not follow the structure of the grounds of appeal which in practical terms will require the Crown to restructure their own already prepared argument to address the arguments now advanced.

Ronnie Clancy QC advised the Court that the effect of the note was such that the Crown will require to reserve its position on whether the note contains material that is outwith the scope of the grounds. In practical terms the Crown were not suggesting a requirement for an application to discharge the hearing fixed for April but the Crown would require further time to address the detailed ‘fresh’ arguments in the note. He advised the Court that it would be physically impossible to absorb all the new material in the 300 page note and prepare a response in such a short timescale.

The Court stated it was satisfied the Crown should have further time to provide a response, “in sofar as is practically possible”, to tailor its argument to the note lodged by the appellant. The Court allowed the Crown a further 2 weeks to lodge a response. This now gives the Crown until Tuesday 14th April 2009.

Hearing Grounds 3.1 – 3.1

Maggie Scott QC requested that the Crown provide further specification to the answers lodged to Grounds 3.1 to 3.3. She advised that before the appellant could consider whether the Grounds of Appeal required any adjustment further specification was required from the Crown. In addition the appellant could not decide whether any evidence should be led at the appeal before the requested specification was provided.

Ronnie Clancy QC advised the Court that the answers provided by the Crown were full and comprehensive. The Crown does not accept the principle that the appellant requires further specification because these grounds are accepted as being final grounds of appeal. He also did not accept that the Crown required to provide any further information to allow the appellant to decide whether they should lead any evidence. That was entirely a matter for them to decide. However the Crown, for its own purposes, wishes time to adjust the answers to 3.1 to 3.3. Although the Crown does not intend to provide answers to all the specific queries raised by the appellant we will address a number of them. The Crown wishes time to adjust these answers inlight of the reports recently lodged with the Court from the appellant’s trial lawyers and Counsel.

The Court allowed the Crown until Tuesday 9th June 2009 to adjust their answers to Grounds of Appeal 3.1 - 3.3. The Court stated that any adjustments to the Grounds of Appeal sought by the appellant will require leave of the Court and that any proposed adjustments should be intimated by Tuesday 23 June 2009.

The Court intimated that there will be a further procedural hearing in the week beginning the 29th June 2009. At this hearing the Court will consider the timing and further arrangements for grounds 3.1 to 3.3. No date has yet been fixed to hear these grounds. Maggie Scott QC urged the Court to fix a date for this hearing. Despite an initial estimate of 8 weeks both the defence and the Crown agreed that 12 weeks was a more realistic estimate of time required to address grounds 3.1 to 3.3. The Lord Justice General raised the possibility of splitting the hearing into segments. There was no opposition to this suggestion by any party.

Outstanding Petitions for Disclosure

There are two outstanding matters in relation to petitions for disclosure in the case. The first is formaterial in the non-prioritised grounds of appeal which fall into calls which were not argued at the February hearing. The second is in relation to a petition for recovery of scientific evidence which again relates to a non-prioritised ground of appeal. Parties agreed that given the argument in February the Court would only require to be addressed on matters specific to these petitions and this would substantially cut down the time required to argue. The Court will fix a 2 day hearing in the week beginning the 29th of June to deal with the two outstanding petitions for recovery.

Additional Information

In the course of the hearing Maggie Scott QC intimated to the Court that the appellant will not be present in Court for the appeal hearings. Apparently provisions are being made to allow the appellant to view the proceedings from Greenock prison.