The latest edition of Private Eye (no. 1366) carries the following article.
The Scottish government has quietly shelved for at least a year its controversial Criminal Justice (Scotland) Bill, heading off an escalating row over the need for corroboration before bringing a case to trial, until after September’s independence referendum.
The move also parks another reform, which would have made it easier to have the highly dubious conviction of Abdelbasset al-Megrahi, the only man jailed for the 1988 Lockerbie bombing, referred back to 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 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 appeal court for a third time. The SNP government has repeatedly refused calls for an inquiry into the festering scandal, claiming the appeal court is the only appropriate forum for airing the issues. Yet it has quietly stacked the cards against any appeal.
Eye readers will recall that the SCCRC 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 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.
The application by the families 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 supports the move. They will then have to prove the case is in the “public interest” – a far more straightforward argument. However, thanks to an arcane piece of legislation the biggest hurdle for them is that before deciding whether to hear a case referred to it by the SCCRC, 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 it remains the law.