The Representative of The Late Abdelbaset Ali Mohamed Al Megrahi v. (1) Her Majesty’s Advocate and (2) Her Majesty’s Advocate General [2021] HCJAC 25

Application for permission to appeal to the Supreme Court of the United Kingdom:- Here the applicant sought permission to appeal to the Supreme Court of the United Kingdom. The applicant contended that there were four Article 6 compatibility issues arising from the refusal of his appeal against his father’s conviction ([2021] HCJAC 3) in relation to two preliminary decisions on (1) the scope of the appeal and (2) order for disclosure and the appeal court’s rejection of two grounds of appeal relating to (1) the unreasonable verdict ground and (2) a failure to disclose ground. Here the court considered:- (1) whether the applicant has identified a potential error by this court; and (2) whether the point of law is one of general public importance. The applicant had sought to add a ground that the Crown ought to have had an adequate system of disclosure in place which the SCCRC had considered, but had not referred to the high court. In its Opinion [2020] HCJAC 39 the court did not consider that it was in the interests of justice to allow this ground to be advanced. The court decided that the establishment of this ground could not result in a finding that a miscarriage of justice had occurred. Here the court considered that the decision did not raise any compatibility issue and none was decided. In relation to the issue of disclosure, namely, the court’s refusal to order the disclosure of two documents which were the subject of a Public Interest Immunity Certificate, in its Opinion 2020] HCJAC 54, the court balanced the public interest with the fairness of the proceedings in terms of Al Rawi v Security Service [2012] 1 AC 531 and applied the test in McInnes v HMA 2010 SC (UKSC) 28. The court considered, as a matter of fact, that the documents would not have assisted the defence at trial. Here the court considered that the decision did not raise any compatibility issue and the test in McInnes is compatible with Article 6. In relation to the issue of whether the court’s decision on the disclosure ground of appeal amounted to a breach of Article 6 in its Opinion [2021] HCJAC 3 the court applied the test in McInnesand determined, as a matter of fact, that the undisclosed material would not have been of assistance to the defence at the trial and looking at the evidence as a whole and the circumstances of the trial in general the content of the documents would not have produced a real possibility of a different verdict. The court considered that the decision and the evaluation of the material did not raise any compatibility issue as the test in McInnes is compatible with Article 6. In relation to the issue of whether the court reached a reasoned decision on the application of the “no reasonable jury” test in section 106(3)(b) of the 1995 Act the court considered that no compatibility issue arose as the court determined the verdict of the trial was reasonable albeit the trial court had erred in excluding additional incriminating evidence. The court observed that generally issues relating to the admissibility of evidence rarely raised compatibility issues. The court acknowledged that whilst the case is one of public importance the proposed grounds of appeal did not raise points of law of general public importance. Finally, the court queried the competence of the application and whether the applicant was a victim in respect of the alleged article 6 violations, however, in light of the court’s decision on the substantive points raised, the court did not consider it necessary to determine the issue.