Reform that would have helped in review of "deeply dodgy" Megrahi conviction "conveniently parked"

[The current edition of Private Eye (issue 1366) returns to the Lockerbie affair in its In The Back section.  The relevant article reads as follows:]

The Scottish government has quietly shelved for at least a year its controversial Criminal Justice (Scotland) Bill, which would have abolished the centuries-old principle of corroboration, requiring two independent pieces of evidence to bring a case to trial.

The move neatly heads off an escalating row with the Bill’s growing body of opponents until after September’s independence referendum. But is also rather conveniently parks another reform, which would have made it easier to get the deeply dodgy conviction of Abdelbaset al-Megrahi, the only man jailed for the Lockerbie bombing, back before the appeal court – just as relatives of some of the victims were about to launch an unprecedented legal action to do just that.

Dr Jim Swire, whose daughter Flora was one of the 270 who died in the attack, is leading 25 relatives of the Lockerbie victims who are about to make a new a new application to the Scottish Criminal Cases Review Commission (SCCRC) to send Megrahi’s case back to the court of appeal – for a third time. The families believe proving Megrahi’s innocence, may be the only way they will get nearer the truth behind what happened to their loved ones.

The SNP Government has repeatedly refused mounting calls for an inquiry in to the festering scandal, claiming, absurdly, that the appeal court is the only appropriate forum for airing the issues. Yet it has quietly stacked the cards against one.

Eye readers will know that the SSCRC had already found strong grounds for believing there had been a miscarriage of justice, but Megrahi who had terminal cancer abandoned his second appeal five years ago in order to return to Libya to be with his family. Since then there has been fresh scientific evidence relating to the bombing device which points to his innocence. There has also been mounting concern about the amount of material also suggesting he was not the bomber, which had been withheld from Megrahi’s 2001 trial and his first appeal the following year, by Scotland’s prosecuting authority, the Crown Office now headed by the country’s chief prosecutor, Lord Advocate Frank Mulholland QC.

The new application by the families, which will focus on the new evidence added to the six grounds on which the SCCRC based its previous referral in 2007 including non-disclosure of evidence, will be breaking new territory. First they will have to prove they have a ‘legitimate interest’ in pursuing an appeal on behalf of Megrahi – a task made easier by the fact that Megrahi’s family support the move. They will then have to prove the case is the ‘public interest’ – a far more straightforward argument. But thanks to an arcane piece of legislation, the biggest hurdle facing the families is that before deciding whether to hear a case referred to it by the SSCRC, the appeal court must have regard to ‘the need for finality and certainty in the determination of criminal proceedings’.

"Finality and certainty" isn't defined in the legislation, but it means the court has to decide whether the threat of endless appeals and challenges, outweighs SCCRC concern that there may have been an injustice. With one first failed appeal and the second abandoned, the court might simply say ‘enough is enough’ – especially when Megrahi himself is dead.

That ‘finality’ test was to have been abolished in the new Criminal Justice Bill – but unfortunately for the Lockerbie families it now remains the law.