Preliminary Appeal Hearing 2/7/2001
Appeal By Megrahi 20/6/2001
Grounds of Appeal Lodged 11/6/2001
Further Extension of Time 2/5/2001
High Court Rejects BBC Television Appeal
BBC petition to televise the trial rejected
The preliminary diet
Contempt petition against the Times
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Human Rights – ECHR Implications
The Lockerbie trial is likely to be the first high-profile case in which the prosecution is bound by the terms of the European Convention on Human Rights which now is being incorporated into domestic law. Hitherto, challenges to domestic law and practice under the Convention on siuch matters as the fairness of a trial have had to be raised directly with the European Court of Human Rights in Strasbourg, France; since May 1999, the Scottish public prosecutor is directly bound by the Convention, and accused persons can challenge prosecution decisions in domestic proceedings.
Article 6 is liable to give rise to such challenges. The essential principle in this guarantee of fair hearings is ‘equality of arms’. The guarantee specifically provides for adequate facilities and time to prepare the defence, and for an accused to obtain the attendance and examination of witnesses on the same conditions as witnesses for the prosecution. This (in the present case) suggets that the defence should have access rights into the world of intelligence-gathering which doubtless the Crown wishes to keep in the shadows.
Protection for vulnerable witnesses is certainly recognised under Convention caselaw, but where steps are taken to ‘screen’ witnesses, the Convention requires that reasons for any special treatment of witnesses are relevant and sufficient, and are achieved by the least onerous method. In other words, the right to confront witnesses must not be impaired to any substantial degree. The Convention also recognises the watchdog role of the media in ensuring that justice is done: Article 6 also protects press (and public) access to the trial court unless ‘to the extent strictly necessary’ in the court’s opinion this should be restricted to prevent publicity prejudicing the interests of justice or where some other countervailing state interest (including national security) exists. USA broadcasters may misunderstand the absence of facilities for televised proceedings, but no independent right to such opportunities exists within the scope of article 10′s guarantees of freedom of expression.
Professor Jim Murdoch (University of Glasgow School of Law)