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PeterCherbi · Joined: 23 May 2007 Posts: 167 Location: Edinburgh

Today in the Herald there is a report of an alarming development in the Lockerbie case, where the Lord Advocate will go to Court to have special "security vetted' advocates represent Abdelbaset Ali Mohmed al Megrahi in the hearing to decide if confidential documents are to be released.

Such a move does indeed appear to be a first in Scots Law ... but I fear it could so easily become common as things do these days and the ruling, if granted, used at will in attempts to stall or simply close down cases which involve serious injustice.

http://www.theherald.co.uk/news/news/display.var.2288404.0.0.php

Bid to ban Lockerbie lawyers in secrets hearing
LUCY ADAMS, Chief Reporter May 22 2008

Prosecutors will next week attempt to throw an unprecedented veil of secrecy over the appeal of the Lockerbie bomber.

The Crown Office will ask judges to bypass the defence team of Abdelbaset Ali Mohmed al Megrahi and appoint special security-vetted advocates to represent him in a court hearing to decide whether a previously confidential document should be made public.

If the bid for a closed-door session is successful, it would be the first time in Scotland that such a step has been taken in a criminal case.

However, the tactic will fuel suspicions that the Crown is going to unusual lengths to preserve the UK's current diplomatic relations with other nations.

The paperwork, which originated in an unknown foreign country, is thought to contain vital information about the electronic timer which detonated the bomb that killed 270 people in the skies over Lockerbie.

It is not known if political pressure has been exercised directly on the Crown, but there have been previous instances in the Megrahi case where Britain's changed attitudes to foreign states since 1988 have played a key role in the legal process.

Foreign Secretary David Miliband has already said the document should remain confidential.

It was uncovered during the three-year investigation of the Scottish Criminal Cases Review Commission, which resulted in the case being referred back to the courts for a new appeal last summer. The commission concluded the failure during the original trial to disclose the document could constitute a miscarriage of justice. Although the Crown allowed the commission to see the material, it has refused to disclose it to Megrahi's defence team.

The Crown's latest move is expected to anger further his lawyers, who believe the failure to disclose the document calls into question the ultimate right to a fair appeal.

The request will be made on Tuesday at the Court of Criminal Appeal when the decision on whether to grant the defence access to the document is to be debated.

The Crown is expected to ask for the hearing to be held behind closed doors in the absence of the defence, who would be represented by special advocates. Public Interest Immunity hearings of this kind in criminal cases have previously been held only south of the border, where there is a statutory system in place, and a list of special advocates.

Megrahi's defence team has made it clear that it needs to see the document in order to proceed with the appeal, and has accused the UK Government of "interference" in the appeal.

If the prosecution denies access to the paper, Megrahi's lawyers are expected to argue that the conviction should be quashed because, without it, their client's right to a fair trial would be breached.

One legal expert said: "This is entirely unprecedented in Scotland."

A spokesman for the Crown Office said the court hearing is to be from from May 27 to 29 in Edinburgh. "It is not possible to provide further comment," he said

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Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

The attempts to undermine the above case is "ultra vires" in Andrew Page Drummond V HMA 18th Dec 2002.

No hearing should be held outwith the accused's presence.

It seems though going with current law and traditions is becoming abnormal in Scots justice, They have already attemepted to change the Law Regarding the grounds of referral in this case already.

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Other cases to refer to would be the following:

Section 92 (1) Criminal Procedure (Scotland) Act 1995

Aitken v. Wood 1921 J.C. 84.

Brims v. MacDonald 1993 S.C.C.R. 1061.

Cunningham v. H.M. Advocate 1984 J.C. 37,

R. v. Jones [2002] 2 W.L.R. 524 at paras. 43-46.

The strictness of the law of Scotland on this matter, as compared with that in England, was highlighted by Lord Rodger of Earlsferry in his speech in the recent case of R. v. Jones [2002] 2 W.L.R. 524 at paras. 43-46. We consider, as we have said, that a breach of section 92(1) will generally lead to an appeal being allowed.

Extracted from Drummond:

[1] In this case the appellant was convicted of two charges of embezzlement and a third charge of attempting to pervert the course of justice. He has lodged a Note of Appeal containing a number of grounds but this court is presently concerned with only the first of these which is in the following terms:

"(1) A material part of the proceedings took place outwith the presence of

the appellant, contrary to the Criminal Procedure (Scotland) Act 1995 Section 92. More specifically, on or about 7 August 2000, during the course of the appellant's evidence at trial, legal debate regarding the admissibility of evidence took place before the Court. The appellant was removed from the Court room for the duration of this debate. There was no question of the appellant being subject to Section 92(2) of the 1995 Act. These circumstances constitute a material breach of said Section 92(1)."

[2] To this ground, however, the court, at the outset of the hearing, allowed the following supplementary ground to be added:

"Senior counsel for the appellant, in the course of the trial proceedings, outwith the presence of the appellant himself, acted entirely without the instruction or authority of the appellant. He stated that he (senior counsel) was 'content to put on record that I do not take any point with regard to competence on that matter.' (Page 74 of transcription of the evidence-in-chief of the appellant). Counsel had neither consulted with the appellant nor had he taken instructions from him upon said matter. In any event, the provisions of Section 92, as aforementioned, were not waved (sic) by the appellant. Representation of the appellant was accordingly defective. Justice was not seen to be done."

Somewhat remarkably, the "matter" referred to was left unspecified but, by reference to the transcript, it became clear that it was the fact that the appellant was removed from the court during the "legal debate".

Opinion From Drummond:

[15] In our opinion a breach of what is properly described as a "peremptory" provision of the common law or statute will generally give rise to a "fundamental irregularity", with the necessary result that any ensuing conviction will fall. The breach of such a provision will often be so fundamental that it is quite simply otiose to look behind or beyond it. And, in our opinion, the breach of section 92(1) of the 1995 Act which is complained of in the present case falls into that category. We consider that Lord Hunter and Lord Robertson were correct in describing the identical provisions of section 145(1) of the 1975 Act as "peremptory".

[16] As regards actual prejudice, we are very conscious that, as the trial judge makes clear in his Report, there were a number of quite distinct components in the jury's verdict and, while no separate argument was addressed to us on the matter, it is difficult to see how more than one of these components could have been directly affected by what took place. At the same time, it can never be known how the appellant's credibility on one part of the case may be taken to affect his credibility in relation to another part of the case. In the end, therefore, we come back to, and reiterate, the view that where, as here, there is a fundamental irregularity in procedure arising out of breach of a peremptory statutory provision, a miscarriage of justice can be said to have resulted even without the demonstration of actual or imputed prejudice. While, therefore, we agree with the Advocate depute that it is not necessary or, perhaps, appropriate, to categorise the present case as being one in which justice was not "seen" to be done, we find ourselves unable to accept his other submissions. It only remains to add, as regards the supplementary ground of appeal, that in our view counsel's implied mandate does not go the length of enabling him to waive an irregularity of the type described above.

[17] For all the above reasons this appeal must be allowed.

Somehow i do not see Megrahi waiving his rights so any hearing held outwith his presence will be "peremptory".

Remember now we also have section 6(1) & 6 (3) of human right to a fair hearing.
Any hearing held outwith Megrahi's presence will breach these rights.

Any attempts to bar his defence team would also lead I feel, to condemnation of our Judicial System Worldwide.
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PeterCherbi · Joined: 23 May 2007 Posts: 167 Location: Edinburgh

Hi Wullie

An update on the story from BBC : http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/7414359.stm

I agree with all you say but at the end of the day as we have seen recently in the courts, the judiciary are minded to side with the Crown, despite evidence that people have not been given fair hearings, and that procedures, including disclosure, have not been followed by the Crown.

It boils down to this - If the Lord Advocate gains the power to strip a defendant's lawyers in favour of Crown "vetted" or appointed legal agents, anyone now has the possibility to lose their legal team simply on the basis that issues contained in their case are not in the public or Crown's interest to be examined with any regard to a person's right to a fair hearing and once that power is granted, it is there to be used any time, as the Lord Advocate feels applicable.

Crown doesn't like your lawyer, you might stand a chance of winning a case showing them up or proving evidence is withheld - you lose your lawyer under the ruling and one, perhaps less willing to push your case is appointed ... is that right or wrong ? .. I don't think its right ...

No comment from the Justice Secretary yet ? and surely with today being the Law Society conference, the legal profession should be shouting a bit more about this ?

I really do think, given the fact there are another five million of us in Scotland who need to depend on the law other than just the Mr Megrahi, that the issue merits a statement on what exactly is going on, from the appropriate arm of Government - that being Mr MacAskill ? or is Scots Law being run not from Scotland ?
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My blog on issues of injustice in Scotland A Diary of Injustice in Scotland by Peter Cherbi

Injustice Scotland Campaign website : Injustice Scotland

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Peter

You are absolutely spot on.

What right in this so called civilised society has the Crown to tell anyone who their defence team will be ?

Exactly what is the Justice Secretary's stance on these issues.

Where is the Equality Of Arms ?

Where is our Human Rights ?

Has the Justice Secretary lost the plot ?

Has he missed the boat ?

Has he any grasp of any of the issues at hand ?

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Fife Cheif Constable Retires suddenly

Mr Wilson who was in charge of Lockerbie suddenly retires four days ahead of the Lockerbie Appeal which is due to be heard on 27th May 2008.

This article never made it to any of our big media outlets but was highlighted of all places in the Dundee Courier, Wonder Why ?

FIFE’S SENIOR police officer hangs up his handcuffs at the weekend after seven years in charge of the region’s constabulary.

Peter Wilson officially retires as chief constable at midnight on Sunday, with his deputy Norma Graham taking over on a temporary basis until the post is filled.
In 1988, Mr Wilson was the officer in charge of the Home Office Large Major Enquiry System incident room at the Lockerbie incident control centre

It can be viewed in full at the following link:

http://www.thecourier.co.uk/output/2008/05/23/newsstory11401589t0.asp