Legal dispute over role of Megrahi family in Lockerbie appeal bid

[This is the headline over a report by Greg Russell on page 14 of today’s edition of The National. It reads as follows:]

Lawyer says dangerous situation in Libya is an obstacle but argues

support of victims’ families should be sufficient for appeal to go
ahead

A legal row is brewing after the Scottish Criminal Cases Review

Commission (SCCRC) asked the High Court in Edinburgh to

determine if an appeal against the lockerbie bomber’s

conviction can be pursued by relatives of some of those killed in the

atrocity. Libyan Abdelbaset al Megrahi died in his home country in
2012, still protesting his innocence.

He remains the only person ever convicted for the bombing of Pan

Am flight 103 over the south of Scotland on December 21, 1988. A
total of 270 people were killed.

Previous court decisions indicated that only the executor of a dead

person’s estate or their next of kin could proceed with such a
posthumous application.

But the SCCRC wants to determine if a member of the victims’

families – such as Dr Jim Swire, who lost his daughter Flora in the

bombing – might be classed as a “person with a legitimate interest
to pursue an appeal” if the case is referred back to the High Court.

It comes after solicitor Aamer Anwar submitted an application

earlier this year asking the SCCRC to review Megrahi’s conviction.

He said it was “extremely disappointing” for the victims’ families

to hear about the SCCRC’s latest move in the media.

SCCRC chief executive Gerald Sinclair said that since June it had

proceeded on the basis that Megrahi’s family was involved in the
present application.

However, he said: “Despite the Commission’s repeated requests,

the members of the Megrahi family have failed to provide
appropriate evidence to support this position.

“The commission has now reached the conclusion that the

current application is being actively supported only by the members

of the victims’ families, who would no doubt be prepared to pursue
an appeal if allowed to do so.

“The aim of the petition is to seek the advice of the court on

whether members of the victims’ families would be entitled to
pursue an appeal on behalf of Mr Megrahi if the commission
ultimately decided to refer the current application, as previous
court decisions have restricted this role to executors and the next
of kin of the convicted person.”

Anwar said: “With respect, we would submit that the commission

are wrong and that we remain instructed by members of the
Megrahi family as well as the British relatives.

“We have been in communication with the Megrahi family, both

via intermediaries and directly. Communication is hampered by

an extremely dangerous situation in Libya, a situation referred to

yesterday by the lord Advocate by way of an explanation for lack of
any progress in relation to investigations into the Lockerbie
atrocity.

“Put simply, if the Lord Advocate with all the resources of the state

cannot make progress, then it is highly unlikely that we can to
travel to Libya in the near future to obtain the necessary
documentation. Nor will we expect the Megrahi family to put their
lives unnecessarily at risk to provide the required documentation in
what can be termed as a ‘failed state’.”

Sinclair said there were “a number of preliminary matters that

the Commission needs to determine” before it can decide whether

or not to accept Megrahi’s case for a full review. “One of these is
the need for the Commission to be satisfied that, in the event of a
referral, someone with the right to do so will be willing and able to
pursue the appeal,” he added.

Anwar said the Megrahi family had spoken of the risks they face

and said they would try to provide the documentation as soon as

possible. “We will continue in our efforts to obtain what the SCCRC
requires and in the meantime we will prepare for the petition that
has been lodged,” he added.

He said the victims’ families had as much right to seek a referral to

the Appeal Court as Megrahi’s family. “We would submit that there
is a fundamental duty on the state to protect the rights of victims
of crime, which includes the national courts responsibility for the
administration of justice,” Anwar said.

“If the long struggle of Dr Jim Swire, Rev John Mosey and many of the British relatives has indicated anything, then it is that they should not have to go through unyielding confrontations with the police and Crown Office just to get the necessary information in their fight for justice. The families of the victims should not now be denied a referral to the Appeal Court when the SCCRC had already considered there was a significant basis for doing so.”

Anwar said that over the years, the Megrahi case had been described as the “worst miscarriage of justice in British legal history”.

“A reversal of the verdict would of course mean that the governments of the United States and the United Kingdom stand exposed as having lived a monumental lie for 26 years by imprisoning a man they knew to be innocent,” he said.

“There is also a very strong argument that, if there is a miscarriage of justice in a case, such circumstances ought not, for public policy reasons, to be exclusively for the appellant – or their family members in the event of death – to determine as to whether or not the Court of Appeal gets to hear an appeal and decide whether or not there has been a miscarriage of justice.

“In the present case, the appellant, having abandoned his appeal, has left the Scottish legal system in a situation where a not inconsiderable part of the population believe that there has been a miscarriage of justice in the conviction of the appellant.

Such views ought to be properly and openly tested in the Appeal Court. If the appellant is guilty, those who have concerns about it can have confidence that the matter has been impartially judicially considered and that the matter of guilt is beyond doubt.

“If the appellant is not guilty, the Appeal Court can restore confidence in the justice system by acquitting the appellant.”