Let Megrahi's abandoned appeal be revived to allow new evidence

[This is the headline over a letter from Iain A D Mann in today’s edition of The Herald.  It reads as follows:]

I welcome Justice Minister Kenny MacAskill's assurance to the Holyrood Parliament that the Scottish Government is anxious to publish in full the report of the Scottish Criminal Cases Review Commission (SCCRC) into the Camp Zeist trial of the man convicted of the Lockerbie bombing, Abdelbaset Ali Mohmed al Megrahi and its concerns about the safeness of his conviction ("Let us see reasons for appeal on Megrahi conviction", The Herald, March 1).

It seems ridiculous that, for this to happen, Mr MacAskill has to plead with the UK Justice Minister Kenneth Clark to grant an exemption from the Data Protection Act, because this is deemed to be a reserved matter. The horrific destruction of PanAm flight 103 and the murder of 270 innocent people took place over Scottish soil, the investigation was carried out by Scottish police forces, and the criminal trial took place in a Scottish court before Scottish judges. As a former barrister himself, Mr Clark should seek to uphold the law and not shelter behind legislation to prevent vital evidence being published.

If there have been underhand deals made by UK Foreign Office, failure by the Metropolitan Police to disclose details of their investigation into a serious break-in at Heathrow, bribery of witnesses by US security departments, or flawed forensic evidence, these matters need to be exposed, not covered up.

However, the most important part of Mr MacAskill's Holyrood statement was his assertion that there is a mechanism by which Megrahi's abandoned second appeal could be revived, even posthumously. Mr MacAskill was adamant that either SCCRC or Megrahi's family were entitled to ask the High Court to resurrect the appeal, and that the court has the power to do so.

As far as I know, this is the first time this has been officially stated. In view of recent revelations and widespread public concern, it is difficult to believe that the High Court would deny such a request. The revived appeal would allow the new evidence, and also the critical information previously withheld from the defence, to be given in open court and tested under oath.

[Megrahi's abandoned appeal cannot be revived. There is no legal mechanism for this to happen. What could happen, and what Kenny MacAskill was referring to in his parliamentary statement, is a further application to the Scottish Criminal Cases Review Commission. But what Mr MacAskill signally failed to mention is  that legislation that he himself promoted (section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals)(Scotland) Act 2010 -- the "Cadder Act") places significant new hurdles in the path of any such application. Before granting any such application the SCCRC must be satisfied that an appeal is in the interests of justice and specifically now "must have regard to the need for finality and certainty in the determination of criminal proceedings". And even if the SCCRC grants the application, under the Cadder Act the High Court can refuse to hear the appeal if it believes that it is not in the interests of justice that any appeal arising from the reference should proceed. In determining this matter the High Court is directed that it "must have regard to the need for finality and certainty in the determination of criminal proceedings".

Accordingly, contrary to the impression that Mr MacAskill sought to create in the Scottish Parliament, a further appeal by members of Mr Megrahi's family (or by relatives of Lockerbie victims such as Dr Jim Swire) is not something that can be readily and easily brought about.  Kenny MacAskill's intervention is, in my view, nothing more than a transparent diversionary tactic designed to give the Scottish Government the perfect excuse to do nothing about the scandal of the Megrahi conviction. We must not allow the tactic to succeed.]