A petition has been lodged by the Scottish Criminal Cases Review Commission (SCCRC) to ask the courts to make a ruling on whether legal proceedings can continue without Megrahi’s family’s involvement.
The Libyan, who died protesting his innocence in his home country in 2012, remains the only person convicted for the bombing of Pan Am flight 103 over the south of Scotland on December 21 1988. A total of 270 people were killed.
The SCCRC is considering a joint application from members of Megrahi’s family and the Justice for Megrahi campaign group, which includes relatives of British victims of the bombing, to review the conviction.
It said previously that despite repeated requests, members of Megrahi’s family have failed to provide “appropriate evidence” supporting their involvement in the application.
The SCCRC has concluded that the application is being “actively supported” only by the members of the victims’ families.
While previous court decisions have meant only the executor of a dead person’s estate or their next of kin could proceed with such a posthumous application, the SCCRC wants to determine if a member of the victims’ families – such as Dr Jim Swire, who lost his daughter in the bombing – might be classed as a ”person with a legitimate interest to pursue an appeal” if the case is referred back to the High Court.
Dr Swire and Aamer Anwar, solicitor for the Megrahi family, were among those at court today for the hearing.
Mr Anwar said:
“We would submit that the Commission are wrong and that we remain instructed by members of the Megrahi family as well as the British relatives. We have been in communication with the Megrahi family, both via intermediaries and directly.
“Communication is hampered by an extremely dangerous situation in Libya, a situation referred to in December by the Lord Advocate, by way of an explanation for lack of any progress in relation to investigations into the Lockerbie atrocity. Put simply, if the Lord Advocate with all the resources of the state cannot make progress, then it is highly unlikely that we can to travel to Libya in the near future to obtain the necessary documentation.
“With regards to the rights of the victims’ families to pursue an appeal, we would submit that there is a fundamental duty on the State to protect the rights of victims of crime, which includes the national courts’ responsibility for the administration of justice.
“If the long struggle of Dr Jim Swire, the Rev John Mosey and many of the British relatives has indicated anything, then it is that they should not have to go through unyielding confrontations with the police and Crown Office just to get the necessary information in their fight for justice.
“The families of the victims should not now be denied a referral to the Appeal Court when the SCCRC had already considered there was a significant basis for doing so.
“It is submitted that the families of the victims have as much right to make an application for referral as the family of Mr al-Megrahi. Finality and certainty in the Megrahi case is unlikely ever to be achieved unless a referral is made to the Appeal Court.”