Campaigners seeking to clear the name of the man convicted of the Lockerbie bombing have been refused permission to appeal to the UK Supreme Court agains the refusal of their appeal against the conviction.
In January, a five judge bench in the Criminal Appeal Court held there had been no miscarriage of justice at the original trial in 2001 (click here for news report). That ruling followed a renewed reference by the Scottish Criminal Cases Review Commission ("SCCRC") for a ruling on whether the original verdict was one that no reasonable jury could have returned, and whether failure by the Crown to disclose two particular documents to the defence might have resulted in a miscarriage of justice.
The same five judges – Lord Justice General Carloway, Lord Justice Clerk Lady Dorrian, Lord Menzies, Lord Glennie and Lord Woolman – have now ruled that no compatibility issues had been raised that would permit a further appeal. Decisions of the Criminal Appeal Court are normally final unless human rights issues are raised, on which appeal is permitted to the Supreme Court.
Lord Carloway, in a statement of reasons for refusing the application, said the court had had "some difficulty in understanding the nature of the challenge" sought to be made against its decision. A ground sought to be based on the court's refusal to allow grounds of appeal not contained in the SCCRC's reference did not raise a compatibility issue, since it did not challenge the general adequacy of the reference system.
On a second issue relating to the court's refusal to allow disclosure of tow documents covered by a public interest immunity certificate, the court's decision that they would not have been of use to, or used by, the defence at trial involved a judgment primarily on factual matters which also did not raise a compatibility issue.
On the general question of whether the court's decision on the disclosure point amounted to a breach of the article 6 right to a fair trial, the court had again reached a decision on a matter of fact – the use that the defence might have made of the material at trial – Lord Carloway concluded: "No compatibility issue arises from what was an evaluation of the material against the test in McInnes . The applicant simply disagrees with the court’s conclusion."
Nor did the question whether the court reached a reasoned decision on the application of the "no reasonable jury" test raise a compatibility issue.
Lord Carloway concluded: "Although the case is clearly one of public importance, the proposed grounds of appeal do not raise points of law of general public importance. The principles of law which the court applied were all well known, settled and largely uncontroversial in the appeal."
He added that it was not clear that the application was competent, since a claim of breach of the Convention required a "victim" to be identified, and a reputational interest in a deceased's exoneration had only exceptionally been regarded as conferring victim status, and then only if the proceedings involved civil rights. "The court therefore queries the competency of the application, although it is unnecessary to determine that matter, given its decision on the substantive points raised."
Click here to view the statement of reasons. It remains open to the applicant to seek permission to appeal by petitioning the Supreme Court.