Wednesday, 20 August 2008

The Scottish press and the closed hearing

Only The Herald has a report, by Lucy Adams, on the PII hearing that took place yesterday behind closed doors and in the absence of Abdelbaset Megrahi's legal representatives. The Scotsman ("Scotland's National Newspaper") does not regard the issue as worthy of attention.

The article in The Herald (like yesterday's BBC report) says that what the judges have to decide is 'whether Megrahi can still get a fair appeal hearing without access to the secret papers.' This is inaccurate. The true position is as stated on this blog on 25 May 2008:

'As a distinguished Scottish judge said in 1968 in a case in the House of Lords: “It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”

'What the court has to do is to assess the harm, if any, that would be done to the national interest through disclosure, and weigh that against the harm that would be done to the administration of justice (eg the likelihood, or the possibility, that an unjustified conviction might be upheld) if disclosure were denied. In this balancing exercise, the court must consider what aspects of the UK’s national interest would be harmed by disclosure (eg national security; relations with friendly foreign governments) and what the extent and gravity of that harm would be. Before the Government’s PII claim can succeed, this potential harm must outweigh the public interest in (and the European Convention on Human Rights requirement of) the fairness of criminal proceedings, which involves an accused person’s having access to all relevant material that might assist his defence.

'In the past, PII claims have been relatively frequently been upheld in civil cases, but only rarely upheld in criminal cases, where the liberty of the accused person is at stake. And given that the document in question was already in the hands of the Crown at the time of the Lockerbie trial in 2000, I suspect that the court will take some convincing that serious harm would be done to the UK’s national interest by its disclosure today, some eight years later.'

The Herald also publishes a letter on the matter from Dr Jim Swire. It reads in part:

'No matter what the content of the document(s) may be, and they may for all we know be quite trivial, the principle that there be "equality of arms" between the prosecution and defence in a criminal case is fundamental to a fair trial/appeal.

'Justice and truth could not be provided by any system where the political executive intervenes in the fair distribution of information between the prosecution and defence. Nor could the Scottish public have faith in such a system. One of the vital functions of any free country's judicial system is to ensure, free from interference by the executive, that the individual can rely upon it to decide issues where that political executive is alleged to have acted unfairly in disadvantaging that individual. It is against that background that I commend the letter from Professor Hans Koechler, the UN international observer at the Camp Zeist trial of Megrahi, to Mr Miliband in which he writes: "Many who, like myself, initially trusted in the integrity of the judicial process under Scots law, will feel betrayed. There is no justice without truth - and there can be no truth if evidence is withheld in a criminal case by governmental decree."

'Like the professor, I do not believe that a meaningful and fair further appeal could be held under the Scottish criminal justice system, should the High Court today decide against sharing this information with the [appellant]'s defence team.'

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