Yesterday a closed session of the High Court in Edinburgh was held to decide whether "top secret" documents thought to pertain to the timer that set off the Lockerbie bomb should be divulged to the defence team for use in the appeal against the conviction of Abdelbaset Ali Mohmed al Megrahi, jailed for the bombing.
The protagonists were: the High Court judges; the Crown Office Lockerbie (prosecution) team; and the advocate general, whose job is to provide the link between Whitehall and the Scottish legal systems. The public and the defence team were excluded and it is believed the prosecution team still opposes passing the "document(s) from a foreign power" to the defence.
It is established that the High Court does have the power to set aside the Public Interest Immunity (PII) certificate imposed by David Miliband, the Foreign Secretary, which serves to keep the documents secret. Thus it is the Scottish system that decides the issue today. The UK government has already applied through Mr Miliband's PII certificate to block the fairness of the Scottish criminal process.
It is also known that both the Zeist prosecution and the Scottish police were in possession of the "foreign power document(s)" from before even the start of the Zeist trial, whereas the defence was denied access.
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 plaintiff's defence team.
Dr Jim Swire, Rowan's Corner, Calf Lane, Chipping Campden, Gloucestershire.
