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Lockerbie ruling on disclosure may see Scots stripped of their lawyers in controversial court cases.

23 May

Its not often I cover aspects of criminal law but the care of the Lockerbie bombing as it was held under Scots Law has once again reared its head to affect the rest of us five million Scots who also have to depend on the law and live with it.

Yesterday in the Herald newspaper, there was 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 made public which may have a significant bearing on Mr Megrahi’s conviction for the bombing of Pan Am Flight 103 over Lockerbie, Scotland in 1988.

From the Herald story :

“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”

Such a move does indeed appear to be a first in Scots Law … but all things being equal these days, such a power granted to the Crown to remove an accused’s legal representation in favour of one it feels ‘comfortable with’ could so easily be used at will in attempts to stall or simply close down cases which involve serious injustice.

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, any defendant in a case subsequently before the court in a criminal matter could face 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.

So … Crown doesn’t like your lawyer, but you might stand a chance of winning a case or perhaps an appeal against a wrongful conviction, showing the Crown case up or proving evidence is withheld … Crown applies the procedure to you, you lose your own lawyer and one, perhaps less willing to push your case is appointed.

Civil law could also be affected where perhaps you are suing the NHS, a local Council, perhaps a Chief Constable, or another arm of Government for negligence, damages, breach of human rights, etc…

When it looks like your legal team is about to win your case, or reveal embarrassing evidence in Court which proves your position, the other side comes along and applies successfully to remove your own lawyers with a selection of their own due to the nature or effect that embarrassing evidence’ in your possession will have on public perception of the law or possible revelations the arm of Government you were taking to court was much less than honest to you and a great many others, like for example, in the contaminated blood products scandal which still has no resolution in sight …

Oh yes, I’ve heard the excuse – ‘It’s only for this case … don’t worry, we won’t apply it to anyone else..‘ but in these times where laws & powers are used for anything and a great many issues completely outwith their original intention, can anyone really be sure the temptation to use this ‘great power’ of removing a legal team from a controversial case may not be used again ?

I think all told the evidence from society in general suggests that rights to a fair hearing could certainly be in danger if on a whim, your lawyers are taken from you just because the other side fear you will win …

Such is the strength of this issue, I would have expected a comment from the Justice Secretary 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 and what impact it will have on the rest of us and our use & access to justice in Scotland.

Surely Mr MacAskill’s ‘hands-off & no comment’ approach to such major issues affecting the Scots legal system is not in our national interest ? It is perhaps, the very distance the Justice Secretary is generating by his lack of comment & action which may very well be allowing the Crown Office to do as it pleases in case after case, not simply the issues affecting the Lockerbie trial.

I would also have expected a little bit more comment, dare I say .. protest … from the likes of the Law Society of Scotland on this matter, who profess to be one of the great defenders of the public interest in Scotland, but who seem to go awfully quiet when it doesn’t suit them to say or do something.

To save the day, we might have to rely on the judiciary themselves who have spent most of this year so far arguing for judicial independence.

Would a judge or judges agree it is in the best interests of the law and the rest of us that someone be deprived of their own lawyers if it looks like they are actually going to win their case ? … Some may say that is a simplistic view of the situation perhaps, but it is accurate and to the point.

Remember, we all have to live with and depend on Scots Law. It cannot be twisted simply to suit the aims of some who do not wish their actions or inactions examined in the full glare of court which may have caused injustice or miscarriage of justice to one or a great many of us ordinary Scots …

The Herald reports :

Bid to ban Lockerbie lawyers in secrets hearing

LUCY ADAMS, Chief Reporter

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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