Privy Council to hear murder conviction appeal over lack of disclosure on witness statements

The Privy Council, the UK's highest appeal court is to hear a bid to overturn a murder conviction, where crucial witness statements were apparently not disclosed to the defence at the time of trial.

The Sunday Herald reports :

Attempt to overturn murder conviction as legal team casts doubt on evidence

Rare legal move as UK’s highest appeal court prepares to hear case

By John Bynorth, Home Affairs Editor

A MAN will take his bid to overturn his murder conviction to the UK's highest appeal court after the High Court blocked his appeal bid.

Brendan Dixon's legal team has argued that crucial witness statements, which they claim could have cleared him, were not disclosed to the defence at his trial.

Now Dixon has been granted leave to appeal directly to the judicial committee of the Privy Council after statements were uncovered which his legal team suggests cast serious doubts about whether his conviction for the murder of Margaret Irvine, 91, in 2003, is safe.

It is a rare legal move, with only a handful of cases every year winning an appeal directly to the council's judicial committee which sits as the final court of appeal on devolved issues.

If Dixon, 38, is successful, legal experts believe it could spark a number of similar appeals to the council on the controversial issue of non-disclosure of evidence.

One legal source told the Sunday Herald: "If the decision of the appeal court is overturned, and quite comprehensively, the Lord Advocate will presumably have to re-investigate a large number of cases where there has been non-disclosure.

"It's difficult to overstate how important this case is in trying to get at the issue of historical non-disclosure of evidence. It has been a shameful stain on the justice system. It's pretty obvious that full disclosure has not taken place with Dixon."

Dixon, 38, and his co-accused Patrick Docherty, 42, were found guilty at the High Court in Kilmarnock in May 2005 of Irvine's murder in Galston, Ayrshire, despite no forensic evidence linking them to the crime.

Their trial ended shortly before the practice of disclosure was tightened following the Privy Council's decision to quash the convictions of James Holland, who was convicted of assault and robbery, and Alvin Sinclair. In the case, the Crown's refusal to disclose documents at their trial was found to have breached their right to a fair trial under the European Convention on Human Rights.

Docherty's appeal team has uncovered evidence which it claims was not presented to the defence, including a restaurant worker who wasn't called to give evidence, and non-disclosure is one of the grounds for his appeal. The witness also provided precognition testimony that she had seen two men outside the dead woman's house on the day her body was found. One of the men, who was picked out from a photo identification, gave evidence for the prosecution.

Dixon and Docherty's is one of a number of cases before the appeal courts which preceded the Holland and Sinclair case. Any decision in a Scottish case by the Privy Council's judicial committee, which sits in a courtroom in Downing Street, is binding on Scottish courts.

The development came after Lord Coulsfield, in a report commissioned by the previous administration, last year called on the government to introduce legislation to ensure that prosecutors are legally bound to hand over full information to defence lawyers before a trial. The government is consulting on the practice, which is already in force in England and Wales.

The legal source added: "It's a high risk strategy to go to the Privy Council as if it says no to the appeal on the grounds of disclosure that's it. It's ironic that given the nature of the legislation a court sitting outside Scotland has jurisdiction in criminal matters north of the border."

Dixon's lawyer Graham Cunningham said: "Had this evidence been available there might have been a different verdict and this decision is a big step forward. This information is beneficial to my client's appeal. The best scenario is the Privy Council saying this evidence was so vital there was a miscarriage of justice."

Dixon's brother-in-law Kevin Donald, 36, who has led a three-year campaign to clear the father-of-two, said: "Brendan is buoyed by this news. There were no DNA or fingerprints linking Brendan to Margaret Irvine's murder - and no sightings of him. If we get the documents, it will help prove his innocence and show that a murderer is still walking around. This is the furthest we have ever got with this case and raises wider issues about how the Crown held back documents which could have cleared people."

Lord Advocate Elish Angiolini, or the Solicitor General Frank Mulholland, is expected to argue on behalf of the Crown at the two-day hearing, which is set down for next month, that Dixon's defence did have access to the documents and could, therefore, have used it as part of his defence.

The Crown Office declined to comment on the case.

Crown Office seeking ruling to change Lockerbie defence team lawyers in secret hearing

Its hardly safe to go outside these days, and the Crown Office is intent on making sure you wont even be safe in court with a legal team with their forthcoming attempt to change the defence team of Abdelbaset Ali Mohmed al Megrahi for "special security vetted advocates" they will vet themselves ...

After gaining this 'dream power' to use, no doubt the Lord Advocate will seek to apply it to any case which might just bring the Government or simply the Crown Office into disrepute .... tough times ahead for us all.

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.

Lord Advocate 'reprimanded' over Crown Office refusal on Lockerbie disclosure

Lord Hamilton, Scotland's most senior judge has been forced to 'reprimand' the Lord Advocate, Elish Angiolini over the 'delays' on handing over evidence in the Lockerbie bombing case to the defence team of Abdelbaset Ali Mohmed al Megrahi, who was convicted of the bombing of Pan Am flight 103 under Scots Law.

Delays some may say, but most feel the Crown has been prevaricating from the very start, with no intention of handing over any documents whatsoever ...

Playing for time seems to be a habit at the Crown Office ... playing with justice a merle triviality ...

The Herald reports :

Judge raps law chiefs for delays to Lockerbie document

LUCY ADAMS, Chief Reporter

The row over the Crown's refusal to disclose a top-secret document vital to unearthing the truth about the Lockerbie bombing has descended into "farce".

At a special procedural hear-ing yesterday, Scotland's most senior judge was forced to reprimand Elish Angiolini, the Lord Advocate, and Neil Davidson, the Advocate General, for their failure to provide adequate reasons to the court and the defence.

Lord Hamilton, the Lord President, said he was "deeply disappointed" with the delays.

The Advocate General, a legal post intended to link the Westminster Government with the devolved Scottish administration, asked the three appeal judges to regard his arguments as "a work in progress".

Lord Hamilton said it was "quite unsatisfactory" that lawyers on the Crown side were not better prepared.

The hearing raised serious arguments about devolution and the interference of the UK Government, as the Advocate General, its most senior legal adviser on Scottish legal issues, argued that he should make the decision.

In a written submission to the defence, he claimed that the document should not be disclosed for reasons of public interest immunity but failed to provide the required reasons or certificate.

The defence team argued that the Lord Advocate, the chief prosecutor in Scotland and the holder of the document, should make the decision and provide reasons if she chooses not to disclose.

As the court discussed why the document has still not been disclosed, Alex Salmond, the First Minister, spoke of his disappointment with the UK Government for failing to deliver on a promise to ensure Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing, would be excluded from any prisoner transfer deal.

He warned that, without an exclusion clause, any prisoner who was refused a transfer could seek a judicial review by going to the courts, taking the matter out of government hands.

The row comes on the eve of the 19th anniversary of the Lockerbie bombing, in which 270 people died when PanAm 103 was blown up in 1988.

The secret document from an unnamed foreign country is thought to be about the MST13 timer which allegedly detonated the bomb.

The document was discov- ered by the Scottish Criminal Cases Review Commission team, which spent three years investigating his conviction. Using its enhanced powers, the commission compelled the Crown to show it the document and decided the contents were sufficiently important for a court to have concluded the conviction could have been a miscarriage of justice.

The commission referred the case back to the court in June after ruling that there were six grounds on which a miscarriage of justice may have occurred, including non-disclosure.

Margaret Scott, defence QC, said: "When it comes to criminal proceedings, it's for the Lord Advocate to assert public interest. There are not two chief prosecutors in Scotland, there is one."

Advocate-depute Ronnie Clancy, QC, defended the position, claiming it was an issue reserved for the UK Government as it involved international relations.

"The view was taken by the Lord Advocate that the public interest immunity should be left to the UK Government because the subject matter of the plea was likely to be a reserved matter," he said.

Professor Robert Black, one of the architects of the original trial at Camp Zeist in the Netherlands, said: "This is turning into a complete farce. The whole thing is a shambles and shows the weakness of the Lord Advocate. That she should be prepared to abrogate her decision on disclosure and public interest immunity is disgraceful."

A number of further hearings are planned for January and February for lawyers to argue about public interest immunity, defence access to items of evidence being stored by police, and about how wide the scope of the eventual appeal will be.

Dr Jim Swire, whose daughter Flora died in the tragedy, said: "I cannot see why the Advocate General is getting involved in this irrelevant attempt to delay the court proceedings. The Lord Advocate is the head of the prosecution and should be handling this."

Scots Law suffers injustice over Lockerbie appeal as Crown Office refuses to hand over Lockerbie evidence

The appeal of Abdelbaset Ali Mohmed al Megrahi against his conviction over the bombing of Pan Am flight 103 has again been brought into the spotlight by the refusal of the Crown Office to hand over vital documents to the defence team.

So much for respecting the laws of disclosure, a problem which is affecting many cases in Scotland, and notably which the legal profession itself is not doing enough to challenge in the courts ...

The Herald reports :

Crown refuses to reveal secret Lockerbie paper

Exclusive by LUCY ADAMS, Chief Reporter

The Crown Office has refused to hand over a secret document vital to unearthing the truth about the Lockerbie bombing.

The defence team of the Libyan convicted of the bombing has now called for a procedural hearing to discuss the Crown's refusal to disclose the document from an unnamed "foreign" country.

At the hearing, in the High Court in Edinburgh on Thursday, the defence will ask the three judges to decide whether the document should be disclosed.

It is understood to be about the MST13 timer which allegedly detonated the bomb over Lockerbie in 1988 which killed 270 people. Abdelbaset Ali Mohmed al Megrahi is currently serving a 27-year sentence for the bombing.

The document was discovered by the Scottish Criminal Cases Review Commission (SCCRC) team, which spent three years investigating his conviction.

Using its enhanced powers, the commission compelled the Crown to show it the document and decided the contents were sufficiently important for a court to have conclude the conviction could have been a miscarriage of justice. Proving the MST13 timer found at the site was purchased by the Libyans was pivotal to the conviction at Camp Zeist in the Netherlands.

The SCCRC referred the case back to the Scottish courts in June on six separate grounds, including non-disclosure.

Two months ago, the Crown Office was instructed to pass on the document or provide substantial reasons as to why it could not be given to the defence.

However, The Herald can reveal the Crown has since opposed the petition and suggested it has no duty to disclose. It has refused to reveal, even to the defence, the country from which the document originated, or its full reasons for not sharing the information.

The defence team is understood to be seeking the document which relates to supply of timers and an additional paper.

At a hearing in October the Crown asked the court for more time and agreed to come back with a response within six weeks.

At the time, Ronnie Clancy, QC, the advocate-depute, said the documents were handed to prosecutors on the basis they remained confidential.

He told the court: "The documents were passed on the basis they were regarded as being confidential by the authority that passed them over. That being so, the Crown has taken the position that, if possible, confidentiality should be respected and there are public interest considerations in regard to keeping the confidentiality of information coming from a foreign source."

Legal experts expected the reasons for non-disclosure to centre around the foreign country's refusal to hand over the documents on national security grounds. This does not appear to be the case.

Professor Robert Black, QC, one of the architects of the Lockerbie trial at Camp Zeist, said: "The Crown was given six weeks to provide the document or to produce valid reasons as to why that would not be possible. The fact they are neither providing a detailed explanation nor the document seems a bit fishy to me.

"Ultimately it will be for the court to make up its own mind."

The full grounds for the appeal will be lodged by the defence team by Friday and are expected to include details undermining the reliability of the Crown's key witness and forensics evidence. It will also contain arguments based on the Crown's failure to disclose documents to the defence at the time of the trial.

A spokeswoman for the Crown Office said: "We have lodged our response to the court within the time limit set by the court and this response sets out our position in relation to the material sought by the defence."

Crown facing fresh disclosure challenge over drugs smuggling conviction

Another week, another case where a convicted cocaine smuggler is to appeal his conviction following the discovery of new evidence, leaving the Crown in yet another awkward position over disclosure.

The Herald reports :

Cocaine smuggler to appeal over non-disclosure of evidence

Exclusive by LUCY ADAMS, Chief Reporter October 22 2007

A man convicted of being one of Scotland's biggest cocaine smugglers is to appeal his case following the discovery of new evidence.

William Gavin Grant was arrested in 2002 and charged with trying to import one of Scotland's largest consignments of cocaine, worth an estimated £50m. He and three other men were caught by Customs and police officers in a complex sting operation.

The drugs, which the gang were transporting direct from South America, had already been seized at an English port and replaced with sand. When some of the group went to pick up what they thought was cocaine, they were arrested.

Grant, 42, from Bothwell in Lanarkshire, was accused of being a ringleader alongside James Mair, and they were jailed for 18 years each at the High Court in Edinburgh.

However, new evidence has come to light which suggests Grant had nothing to do with the smuggling, and Mair has written to him from Barlinnie Prison in Glasgow, apologising for the fact he was accidentally caught up in the operation.

The main evidence against Grant came from the testimony of Hannah Smith, Mair's secretary, and the analysis of a fax machine which officers claimed Grant used to organise the shipment.

The Herald has seen the transcript of a taped police interview with Ms Smith, which has only just been handed to the defence and highlights major discrepancies between her different statements.

In addition, lawyers and investigators have uncovered flaws in the expert claims that the fax organising the shipment came from Grant's machine and suggestions that evidence was improperly handled.

Evidence seals were broken on the evidence with no mention why, yet traditionally if officers need to remove something or open the evidence bag, they have to explain reasons and log the action.

Grant's appeal will be led on a number of grounds, including non-disclosure, insufficiency of evidence, and discrepancies in the statements of the key witness.

The case is likely to reignite the debate about non-disclosure. The Crown is still refusing to hand over the surveillance logs involved or allow access to the original fax machine.

Peter Ritchie, a retired detective superintendent from Lothian and Borders police who spent five years at Europol and worked as the head of the organised crime squad in NCIS (National Criminal Intelligence Service), has been working on the case for the past two years.

Grant, speaking to The Herald from Glenochil Prison, said: "The appeal was granted in January 2004 and I have been waiting since then to get a date set and to get the Crown Office to hand over the remaining documents that we need. The transcript of the police interview with Hannah Smith was only made available at the end of August this year and they are still not allowing us access to the original evidence to allow our forensic experts to look at it.

"It is just so incredibly frustrating. The strain it's putting on me and my family is incredible. My mum is really struggling to cover my mortgage payments and keep things going.

"I just want a date set so I can get the appeal heard. All I was doing was looking after someone's business while they were on holiday. This could happen to anyone - that's one of the scariest things about it. Mair wrote to me in Barlinnie saying don't worry about this, it's got nothing to do with you. But I'm still here."

Do we get the whole truth?

LUCY ADAMS, Chief Reporter October 22 2007

It was an intricate sting, set up to foil one of the biggest cocaine smuggling consignments ever destined for Scotland.

Police and Customs officers waited and watched as the drug trafficking gang spent hours unloading 500 bales of rubber at a warehouse in a business park in Stepps, north-east of Glasgow.

The gang expected the bales to be packed full of Class A drugs worth £50m, in 1kg blocks sealed in wax to fool sniffer dogs. Unknown to them, however, the cargo had already been intercepted by customs officials at Felixstowe in Suffolk and the cocaine replaced by millions of grains of sand.

Afterwards, four Scots were arrested and jailed for almost a combined 70 years in June 2003 at the High Court in Edinburgh. Businessmen James Mair and William Grant were each sentenced to 18 years, while David Frew and Sean McAdam received terms of 12 and 10 years respectively.

However, now it appears the smugglers may not have been the only ones to make a mistake. New documents seen by The Herald indicate that Grant was not aware of what the consignment contained, nor directly involved in the operation.

Grant was convicted for sending the bogus faxes which were used to lend some legitimacy to the cargo. However, since the trial an independent fax expert has verified that these faxes could easily have been rigged so it seemed as if they were sent from a different machine.

In addition, Nicola Smith, Mair's secretary, told the court that Grant had told her about the shipment, but in a police statement that has only just been disclosed to the defence, she explained Mair had phoned from Benidorm to tell her about the delivery.

In this statement, she explained Grant did not even know anything about the delivery. At the trial, the prosecution argued that Mair and Grant ran aspects of the business together. Lord Carloway said that Grant was "entwined" to a "material degree" in Mair's company G&L Distribution.

However, in the previously unseen statement, Ms Smith said Grant was simply one of the drivers.

Peter Ritchie, a retired detective superintendent from Lothian and Borders police who spent five years at Europol and worked as the head of the organised crime squad in the National Crime Intelligence Service, has been working on the case for the past two years.

Mr Ritchie, currently working on the Billy Wright inquiry in Northern Ireland, said he was convinced of Grant's innocence. "The more I looked at the evidence, the more convinced I became that he is innocent," he said. "Technically, once we analysed the evidence, we realised it just did not stack up.

"He seems to have been convicted on the grounds that he sent a fax and that Nicola Smith said he was involved. The expert we asked to look at this indicated the fax could have been sent from anywhere. Based on my experience, the fact that he, unlike the rest of the group, was not handed a new mobile phone is just unthinkable in a drugs trafficking case.

The more I looked at the evidence, I became convinced of his innocence

"In court, they said a notebook found in his car was financial evidence of his involvement. I don't understand how they came to this conclusion when this book is all about his notes on things like buying petrol as he went about his business."

Grant, currently serving his sentence in Glenochil, is about to lodge final appeal papers with the courts. He is appealing on the grounds of insufficiency of evidence and non-disclosure. Apart from the discrepancies in Ms Smith's statements, his lawyers are still trying to get hold of a number of documents relevant to the case, including the surveillance logs on Grant that claim he used classic counter-surveillance measures to shake off detectives.

This lack of disclosure, the latest in a long line, is fuelling an ongoing public and legal debate about the fairness of the prosecution picking and choosing what to share with the defence. Last month, a review on disclosure commissioned by the then Scottish Executive said prosecutors should be legally bound to provide full information to defence lawyers in advance of a trial.

Lord Coulsfield, who chaired the review, was also one of three judges who presided at the Lockerbie trial in the Netherlands. He called for legislation requiring the prosecution to have regard to "the overriding requirement of a fair trial".

In 2005, the Judicial Committee of the Privy Council, the highest criminal appeal court, quashed the convictions of two Scots on the grounds that the Crown had failed to disclose vital documents and said that this breached the European Convention on Human Rights.

Two other appeals have since hinged on non-disclosure in part, as will two other pending high-profile cases: the Lockerbie bomber and Nat Fraser. Regardless of this, the Crown is still refusing to fully disclose information.

Fraser's appeal begins around the same time as a special hearing in Edinburgh on disclosure. Advocates are arguing, in relation to four appeal cases including that of Grant, that every document relevant to a case should be disclosed. The aim is to set a precedent for future cases and other appeals.

"It's a disgrace that the Crown is continuing with its policy of only disclosing those documents it wishes to hand over," said one advocate, who did not wish to be named.

"England and Wales and other countries have systems in place explaining what should be disclosed and requiring the prosecution to detail the documents which have not been shown. The Crown's position is utterly untenable. This hearing should decide that."

Although the Crown has improved and speeded up its procedures on disclosure, gaps in high-profile cases, many of which have already been thrown out for being miscarriages of justice, continue to appear.

For justice to be done, in the case of Grant and anyone else before the bench, it seems logical that both defence and prosecution have access to all relevant evidence.