Thursday, 26 November 2020

The Crown submissions in the Megrahi appeal

[What follows is excerpted from The Guardian's report today on the third and final day of the Megrahi appeal hearing:]

A government lawyer has urged a Scottish court to use incriminating evidence from the second Libyan accused of the Lockerbie bombing and uphold the conviction of Abdelbaset al-Megrahi.

Ronnie Clancy QC, an advocate depute for the Scottish government, said the five judges hearing an appeal against Megrahi’s conviction were entitled to use diary entries from his co-accused, Al Amin Khalifa Fhimah, even though Fhimah was acquitted.

Fhimah’s diary had entries claiming he had acquired baggage tags which, Clancy said, would have allowed Megrahi to bypass security at Luqa airport in Malta and plant the suitcase bomb which later blew up on Pan Am 103 over Lockerbie, south-west Scotland.

Clancy told the appeal that the judges at their trial, held without a jury at Camp Ziest in the Netherlands from May 2000 until January 2001, were wrong to discard that simply because they had acquitted Fhimah.

Clancy told the court: “It’s for you to make of it what you will, in particular whether you’re impressed or agree with what the trial court said, which is it’s obviously capable of having a sinister connotation in the context of Mr Megrahi’s guilt.” [RB: This is a very weak argument indeed. The trial court held that the diary entry was insufficient to infer guilt against its author, Fhimah. It is difficult to see by what process of reasoning it can be treated as an adminicle of evidence inferring the guilt of a third party, Megrahi.]

The lawyer’s recommendation came on the third day of a hearing into a posthumous appeal by Megrahi’s family (...)

After his family made a fresh application to the SCCRC, in May 2020, the commission again said his conviction could be unsafe due to significant doubts about the identification evidence against Megrahi, given by Tony Gauci, a Maltese shopkeeper, and issues with the non-disclosure of evidence.

Clancy rejected the attacks by the Megrahi family’s lawyers on Gauci’s evidence, insisting his identification of Megrahi as the man who bought the clothes used in the bomb was honest and unswayed by outside influence.

The trial judges took account of the difficulties with identification evidence, including the passage of time, the fallibility of identification evidence and suggestibility of witnesses.

“It is inconceivable that three experienced judges weren’t alive to these issues. There are plenty of indications in the text of their analysis which made it clear that they were,” Clancy said.

The SCCRC had discovered that after his trial Megrahi had an Air Libya uniform which allowed him to travel freely in and out of Malta, Clancy added. As a senior Libyan intelligence officer, who did business with the firm selling the bomb’s timer, Megrahi also had access to a fake passport, which was used in Malta on the dates the bomb was planted.

“It’s clear that the trial court explains in detail why it reached the conclusion that in did in its analysis of Tony Gauci’s evidence. The trial court’s reasoning is sensible, measured and well within the bounds of a reasonable fact-finding exercise,” he said.

Clancy finished his rebuttal on Thursday afternoon, and the appeal court announced it would give its decision at a later date.

Who made the bomb? The full truth about Lockerbie is still not being told

[This is the headline over a long report by David Horovitz published today on the website of The Times of Israel. It reads in part:]

Megrahi went to his grave protesting his innocence, and his family continues to fight to clear his name. This week, Scotland’s highest criminal court is hearing his relatives’ latest appeal against his conviction, after an independent review determined that he might have been the victim of a miscarriage of justice. Among other flaws, the defense is highlighting that the Maltese shopkeeper who identified Megrahi as the man who purchased the incriminating clothing in the suitcase, and whose evidence has always been controversial, was paid for his testimony, a fact that was not disclosed to the defense in the original trial.

I have followed the Lockerbie case since the time of the bombing, when I was working for The Jerusalem Post as its London correspondent, and when I happened to see material in the early stages of the investigation that pointed not to Col. Gaddafi’s Libya, but rather to Iran and the Palestinian terrorist organization PFLP-GC — the Popular Front for the Liberation of Palestine-General Command. Earlier in 1988, the US Navy’s guided-missile cruiser USS Vincennes had shot down an Iran Air Airbus in the Persian Gulf, killing all 290 passengers and crew, in a tragic case of mistaken identity. The US said it had misidentified the civilian airliner as a fighter jet. Iran had promised to avenge the deaths. Ayatollah Khomeini had vowed that the skies would “rain blood.” (...)

Just weeks before the Lockerbie blast, four devices strikingly similar to the one that would soon be utilized to such devastating effect on Flight 103 had been found in the possession of PFLP-GC members arrested in a Frankfurt suburb. That PFLP-GC cell was reported at the time to have been planning to blow up planes heading to the US and Israel. Its bombs, like those the PFLP-GC had used in the past, and like the Lockerbie device, were detonated by a barometric pressure device and timer, activated when a plane reaches a certain altitude. A fifth bomb in the Frankfurt cell’s possession was said to have disappeared; this was presumed to be the device that blew up Flight 103.

The Lockerbie investigators were initially following these leads; then they shifted their focus to Libya. In 2003, Gaddafi accepted responsibility for the bombing — though he denied ordering it — and paid compensation to the victims’ families, in accordance with UN demands for the lifting of sanctions on his country.

Almost seven years ago, a colleague of mine at The Times of Israel noticed that a man named Marwan Khreesat, a Jordanian national, maintained an Arabic-language Facebook page in which he had taken to posting pictures of the Lockerbie bombing. Khreesat was the PFLP-GC’s bombmaker-in-chief, the alleged maker of those barometric-pressure devices. He was one of those who was arrested by the German authorities in Frankfurt, only to be inexplicably released soon afterward. Now he was promising to reveal the truth about Lockerbie — to “write about Pan Am 103,” including “who was on the flight and the circumstances of the incident.”

In his posts, Khreesat also connected himself to the bombing of an El Al plane from Rome to Tel Aviv in 1972, describing that attack as “a challenge to the Israeli intelligence agents who are responsible for searching luggage and everything that goes on a plane.” The 1972 El Al bomb — another barometric-pressure device — had been hidden in a record player that two British women were duped into carrying by two Arab men who were later arrested. Although the bomb exploded, the pilot was able to make an emergency landing. “It was a successful blow against the Israeli enemy,” Khreesat wrote in a March 14, 2014, Facebook post, in which he also described spending time with PFLP-GC chief Ahmed Jibril in Rome as they waited for the attack to unfold.

In several 2013-4 Facebook posts relating to Lockerbie, Khreesat recalled his arrest two months before the bombing. He posted pictures of the destroyed cockpit of the 747 after the explosion, the painstakingly reconstructed parts of the plane wreckage, and a radio-cassette recorder like the one that held the bomb. He also asked a series of unanswered questions about the attack. “Who did the operation?” he mused in a post on the 25th anniversary of the blast. “Israel? Iran? Libya? Who carried the Toshiba explosive device [in which the bomb was hidden]?… Did the explosive device come from Malta airport like the American intelligence agencies say?… When will these riddles be solved.”

This week’s appeal by the Megrahi family was green-lighted by the Scottish Criminal Cases Review Commission in part because of “nondisclosure” of evidence to the defense team in the original trial. Some of that documentary evidence is widely reported to have been provided by Jordan’s late King Hussein and to not only to implicate the PFLP-GC in the Lockerbie atrocity, but to specify that Marwan Khreesat built the bomb.

On Friday, however, the head of the Scottish judiciary, Lord Carloway, ruled that the documents must still be withheld on the grounds of national security. Accepting a secrecy order signed by British Foreign Secretary Dominic Rabb [sic], Carloway explained, “[Rabb’s] clear view is [that the release of the documentation] would cause real harm to the national security of the UK because it would damage counter-terrorism liaison and intelligence gathering between the UK and other states… The documents had been provided in confidence to the government. Their disclosure would reduce the willingness of the state, which produced the documents, to confide information and to co-operate with the UK.”

All manner of conspiracy theories surround the Lockerbie bombing, some of which do not rule out the involvement of Libya and Megrahi, most of which revolve around the fact that nobody has been prosecuted for making the bomb, and many of which focus on the PFLP-GC and Marwan Khreesat.

Over the years, I’ve had the opportunity to raise the question of the Lockerbie bombing with several former Israeli intelligence figures, who were in office at the time of the bombing and well aware of the activities of the PFLP-GC at the time. Two of them insisted without elaboration that “Libya did it” and brushed away further questions. A third, by contrast, told me it was “clear that Jibril prepared the operation.”

Israel was “listening in” on the PFLP-GC during the months prior to Lockerbie, he said, and hearing about preparations for what “we thought was a plan to target an Israeli plane.” There was a “huge alert” in the Israeli security establishment because of indications that the PFLP-GC was about to strike, this source went on. “We told the British and the Americans what we knew, which was that there was an intention to hit an Israeli plane… We didn’t warn about a British or an American plane because we didn’t know that,” he said.

The new appeal hearing is expected to continue until Friday, with a ruling at a later date. “It is submitted in this case that no reasonable jury, properly directed, could have returned the verdict that it did, namely the conviction of Mr Megrahi,” the defense lawyer Claire Mitchell told the judges on Tuesday. But that argument will be harder to make without those “Jordanian” documents, which the defense has said are central to the appeal. If his relatives fail to have Megrahi’s conviction overturned, their allegation of a miscarriage of justice will linger.

Marwan Khreesat died in 2016.

His Facebook page is still online.

But he never did tell the truth about Lockerbie.

Wednesday, 25 November 2020

Lockerbie: court 'should have been told witness wanted payment'

[This is the headline over a report on the website of The Guardian on the second day of the Megrahi appeal. It reads in part:]

The court that convicted a Libyan intelligence officer for the Lockerbie bombing should have been told a key witness wanted payment for his testimony, appeal judges have been told.

Gordon Jackson QC, part of the legal team acting for the family of Abdelbaset al-Megrahi, said there was clear evidence that the witness Tony Gauci was interested in compensation for giving evidence, and frustrated none had emerged.

Jackson said the prosecution had an obligation to reveal that to the trial court, which convicted Megrahi of killing 270 people when Pan Am flight 103 blew up over Lockerbie in south-west Scotland in December 1988.

Instead, the relevant Scottish police interviews with Gauci, a Maltese shopkeeper whose testimony convicted Megrahi, were not given to the court or the Libyan’s defence team. The undisclosed papers “showed a very clear pattern” where Gauci “had a strong motivation of a financial nature,” Jackson said.

Jackson, (...) said the defence could have aggressively pursued this with Gauci when he gave evidence, challenging his credibility.

“The information in those documents would’ve given them the basis to attack that credibility,” he told a panel of five Scottish appeal judges, headed by Scotland’s most senior judge, Lord Carloway, the lord justice general.

It later emerged Gauci and his brother were paid $3m by the US government after he gave evidence – a deal not disclosed until after the trial. (...)

The case was returned to court earlier this year after the Scottish Criminal Cases Review Commission, an independent body, decided there were grounds for believing Megrahi’s conviction was unsafe.

It said there were significant issues with the trial court’s judgment about Gauci’s testimony, and the failure to disclose evidence.

On Friday, Carloway ruled that some of that undisclosed evidence, involving allegations from the Jordanians linking a Palestinian terrorist group to the attack, must remain secret.

Speaking earlier, Claire Mitchell QC, another lawyer for Megrahi’s family, represented by the Glasgow-based human rights lawyer Aamer Anwar, said the trial court had also been wrong to allow Gauci to identify Megrahi from the witness stand because Gauci had previously seen prejudicial press articles claiming Megrahi was guilty.

Ronnie Clancy QC, acting for the Scottish and UK governments, said the trial judges had acted properly and fairly in convicting Megrahi. “The crown’s position is that the appellant can’t meet the statutory test of showing no reasonable jury, properly instructed, could have convicted Mr Megrahi,” he told the court.

“On the contrary, the trial court were fully entitled to make the findings which they set out in their opinion and were fully entitled to conclude Mr Megrahi was guilty beyond reasonable doubt.” In fact, Clancy said, at times they erred in Megrahi’s favour when they weighed up the evidence.

Appeal in Lockerbie bombing reaches Scotland’s highest court

[What follows is excerpted from a report published yesterday evening on the website of The New York Times:]

Scotland’s highest court began hearing a posthumous appeal on Tuesday for a Libyan man convicted in the 1988 bombing of a Pan Am jetliner that killed 270 people over the town of Lockerbie, the deadliest terrorist attack in Britain.

The appeal, lodged by the family of Abdel Basset Ali al-Megrahi, the only person found guilty in the midair blast, is the latest turn in a decades-long case that left many details unresolved. Mr. al-Megrahi insisted on his innocence until his death in 2012.

“We are in possession of much evidence that we have not revealed publicly,” said Aamer Anwar, a lawyer for Mr al-Megrahi’s family, adding that in his dying breath Mr al-Megrahi had wanted to clear his name. “The Megrahis regard their father as the 271st victim of Lockerbie.”

A spokesman for Crown prosecutors declined to comment, citing the continuing appeal. The prosecutors have said that they would “rigorously defend” the conviction. (...)

Mr al-Megrahi, a former Libyan intelligence officer who was working undercover at Libya’s state airline, was convicted of organizing the bombing in an unusual 2001 trial in the Netherlands under Scottish law and sentenced to life in prison, with a 27-year minimum term. [RB: The only evidence that Megrahi was an intelligence officer came from the CIA informer Majid Giaka. For no explicable reason the Zeist judges accepted Giaka's evidence that Megrahi was an intelligence agent while otherwise rejecting his evidence as utterly unworthy of credit.]

He twice appealed the decision, insisting on his innocence, but abandoned the second effort after developing terminal cancer to maximize his chance of being released on compassionate grounds. He returned to Libya in 2009.

His return, escorted by Saif al-Islam, the son of the Libyan leader Col. Muammar el-Qaddafi, and greeted with cheers in Libya, angered many families of the victims, particularly Americans. The bombing came at a time of increasing tensions between the United States and Libya, and prosecutors said Mr al-Megrahi was acting as a terrorist for the government. Libya has denied involvement but paid $2.7 billion to the victims’ families in 2003 to end the country’s diplomatic isolation.

Other families have lobbied for the case to be re-examined, saying they do not believe Mr Megrahi was guilty, and some legal experts have thrown doubts on the evidence presented at the trial.

The conviction was a “miscarriage of justice,” said Robert Black, professor emeritus of Scots Law at the University of Edinburgh, who helped conceive the idea of holding the nonjury trial in the Netherlands and has urged a reopening of the case. Reviews of the case by an independent government-financed body have referred it to Scotland’s High Court for another examination.

If the family lost this third appeal, “that is the end of the line,” Mr Black said. But if successful, he added, it would make the Lockerbie bombing an unsolved crime without a culprit.

The appeal will look at whether evidence at the trial justified a guilty verdict. That will focus on evidence including that of a crucial witness, Tony Gauci, a Maltese shopkeeper who identified Mr al-Megrahi as the buyer of clothing linked to the bomb.

But it emerged later that Mr Gauci was at times inconsistent in recognizing Mr al-Megrahi and that he had already seen a photograph of him connected to the bombing before speaking with the police.

Some of Mr al-Megrahi’s supporters and his family have pointed to a Syrian-based militant group, the Popular Front for the Liberation of Palestine-General Command, alleging that Iran ordered the attack as retaliation against the United States. Iran has denied involvement.

On Thursday, a judge also declined a request by Mr al-Megrahi’s family for access to protected government documents, saying it could harm the national security of the United Kingdom. Crown prosecutors in 2015 also said they were looking at two other Libyan suspects involved in the bombing.

The case has had an enduring international legacy, experts said. Before the investigation into the bombing, “there had never been anything comparable with so many governments involved,” Mr Black said, adding that it “set the standard for international cooperation.”

If the conviction is overturned, he said that he believed there should be an independent inquiry supported by the British and American governments. But he said that their enthusiasm for pursuing the case might be wavering, given that 32 years had passed since the bombing.

Tuesday, 24 November 2020

Lockerbie bombing: facts 'cherrypicked' to convict Megrahi, court told

[This is the headline over a report published this evening on the website of The Guardian. It reads in part:]

The judges who convicted a Libyan for the Lockerbie bombing reached an unjustified verdict by cherrypicking facts from a mass of conflicting evidence, an appeal court has been told.

Claire Mitchell QC, an advocate acting for the family of Abdelbaset al-Megrahi, accused the Scottish judges who jailed him nearly 20 years ago of taking a “broad-brush approach” to contradictory claims from unreliable witnesses.

“The court has read into a mass of conflicting evidence a pattern or conclusion which is not really justified,” Mitchell told five Scottish appeal judges on Tuesday. None of the most significant evidence against Megrahi met the “baseline of quality” needed for a conviction, she said.

She was addressing the court on the opening day of a posthumous appeal against Megrahi’s conviction for planting the bomb which brought down Pan Am Flight 103 over the Scottish town of Lockerbie on 21 December 1988. (...)

Megrahi was the only person convicted for the bombing, by a specially-convened Scottish court sitting without a jury in the Netherlands from May 2000 until January 2001. He immediately lodged an appeal, insisting he was innocent.

Five years after losing that appeal, the Scottish Criminal Cases Review Commission (SCCRC) ruled in 2007 his conviction could be unsafe, returning it to court. In 2009, Megrahi was diagnosed with terminal cancer, and abandoned his case after winning compassionate early release. He died at home in Tripoli in 2012.

In May 2020 the SCCRC ordered a fresh appeal on behalf of Megrahi’s family, which is being held this week in a virtual hearing chaired by Lord Carloway, the lord justice general and Scotland’s most senior judge.

Mitchell said his conviction hinged on the original court’s decision to rely on the uncorroborated claims of Tony Gauci, a Maltese shopkeeper who alleged several years after the attack that Megrahi had bought 12 items of clothing found in the Samsonite suitcase holding the bomb.

She listed a series of inconsistencies in Gauci’s testimonies and in the trial court’s decision to fix the date of that purchase as 7 December rather than 23 November, an alternative date which the evidence also pointed to.

That date was central to Megrahi’s conviction. The senior Libyan intelligence officer was only in Malta on 7 December but was not in Malta on 23 November.

Gauci had initially repeatedly identified an Egyptian terrorist called Abu Talb as the man who bought the clothes, only to identify Megrahi later. He also first recalled the purchaser being four inches taller and nearly 30 years older than Megrahi.

Gauci claimed it rained when the purchaser left his shop; the nearby airport’s meteorologist said he did not believe it rained on 7 December. It did, however, rain on 23 November. Gauci also gave contradictory evidence about whether the town’s Christmas lights were lit on 7 December or not.

“As things stand, we have someone who cannot remember dates and is hopelessly muddled,” Mitchell said. She told the judges “the evidence was so inconsistent, so riddled with inaccuracies, that no jury could have held that the date of purchase was 7 December. [It] simply didn’t bear the weight put upon it.”

Further, there was no evidence the suitcase bomb began its unaccompanied journey on a KLM flight from Malta to Frankfurt, as the prosecution claimed, before being inserted on a Pan Am feeder flight to Heathrow.

The UK and Scottish governments are contesting the appeal, and the hearing will hear later evidence that the US government secretly paid Gauci and his brother a total of $3m for their testimony – a fact withheld from the original trial.

Thirty-two years of struggle for truth and justice

[What follows is the text of a press release issued today by Aamer Anwar & Co:]

It has been a long journey in the pursuit for truth and justice. When Pan Am Flight 103 exploded over Lockerbie nearly 32 years ago, killing 270 people from 21 countries, it remains the worst terrorist atrocity ever committed in the UK.

Since then the case of Abdelbasset Al-Megrahi the only man ever convicted of the crime has been described as the worst miscarriage of justice in British legal history.

The finger of blame has long been pointed in the direction of Iran for having ordered a Syrian-Palestinian group to carry out a revenge attack for the downing of an Iranian Airbus by the U.S. six months earlier which killed all 290 on board.

The reputation of the Scottish criminal justice system has suffered internationally because of widespread doubts about the conviction of Mr Al-Megrahi.

It is in the interests of justice that these doubts can be addressed, however he was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.

An overturning of  the verdict for the Megrahi family and many of the families of British victims also supporting the appeal, would vindicate their belief that the Governments of the United States and the United Kingdom stand accused of having lived a monumental lie for 31 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit.

We are now in possession of much evidence that we have not revealed publicly as it is not appropriate to do so at this stage.

However, at the conclusion of this appeal we intend to disclose significant material about the role of individuals, nations and their politicians, because there can never be a time limit on justice or the truth emerging.

This process began for my legal team in 2014 when I first met with Dr Jim Swire and the Rev. John Mosey who lost their daughters Flora and Helga that night in Lockerbie. I pay tribute to their perseverance, compassion and courage.

Flora Swire one day before her 24th birthday, was brutally murdered along with 269 others in the Lockerbie attack. I spoke to Jim last night, he said he still aches for his daughter Flora, what might have been, the grandchildren she would have had, the love she always gave her family and the glowing medical career.

It has always been and remains his intent to see those responsible for her death brought to justice.

I also spoke yesterday to Ali the son of Al-Megrahi and he told me he was 8 years old when his father went to the Netherlands to stand trial. When his father returned to Libya to die, Ali spent most of his time next to his father and he says that until his dying breath he maintained his innocence. The Megrahi’s regard their father as the 271st victim of Lockerbie.

For my team it has been six long years but for the families we represent, finally there is hope that we are coming to the end of a very long journey, in nearly 32 years of their struggle for truth and justice.”

Sunday, 22 November 2020

Scottish judges rule Lockerbie documents will remain secret

[This is the headline over a report in today's edition of The Observer. It reads in part:]

Scotland’s most senior judges have upheld a secrecy order signed by the foreign secretary, Dominic Raab, to withhold intelligence documents believed to implicate a Palestinian terror group in the Lockerbie bombing.

Lawyers acting for the family of Abdelbaset al-Megrahi, the Libyan convicted of the bombing, believe the documents are central to a fresh appeal against his conviction which starts on Tuesday and had urged the court to release them.

The appeal has been lodged by Megrahi’s son, Ali Abdulbaset al-Megrahi, in what is believed to be the first posthumous miscarriage of justice case in Scottish legal history. Megrahi died of cancer in Tripoli in 2012 after being released from prison on compassionate grounds.

The documents are thought to have been sent by King Hussein of Jordan to the UK government after Pan Am Flight 103 was blown up over the town of Lockerbie on December 1988, killing all 259 passengers and crew, and 11 townspeople.

The documents are believed to allege that a Jordanian intelligence agent within the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), called Marwan Khreesat, made the bomb. Critics of Megrahi’s 2001 conviction believe the PFLP-GC carried out the attack on behalf of the Tehran regime in revenge for the destruction of an Iranian airliner by the US warship the USS Vincennesa in July 1988, but this was covered up in order to implicate Libya.

In August, Raab signed a public interest immunity certificate to keep the documents secret. In 2008 the then foreign secretary, David Miliband, also refused to release the papers ahead of Megrahi’s second appeal, later abandoned in the belief he would be released early from prison.

In a ruling issued late on Friday, Scotland’s most senior judge, Lord Carloway, the lord justice general, said the court had upheld Raab’s order signed in August, after studying the papers in a secret hearing earlier this month, even though the foreign secretary agreed the documents are relevant to the appeal.

“His clear view is [it] would cause real harm to the national security of the UK because it would damage counter-terrorism liaison and intelligence gathering between the UK and other states,” Carloway said, referring to Raab’s submission. “The documents had been provided in confidence to the government. Their disclosure would reduce the willingness of the state, which produced the documents, to confide information and to co-operate with the UK.”

To the disappointment of the Megrahis’ lawyers, Carloway sided with the UK government by arguing much of the material in the secret documents was known to Megrahi’s defence team at his trial in the Netherlands in 2000-01, as were claims about Khreesat’s role, even though the Jordanian cables were withheld from his lawyers.

The Megrahi family lawyers insist the documents could have opened up significant new lines of inquiry and helped prove Megrahi’s innocence if they had been released before his trial. Megrahi tried to incriminate the PFLP-GC in the bombing.

The Scottish government’s lawyers, who are on the UK government side in opposing the appeal, told Carloway they believed the documents should be disclosed.

The new appeal hearing was ordered after the Scottish Criminal Cases Review Commission decided Megrahi’s conviction was arguably a miscarriage of justice, because of significant discrepancies in the evidence of the Crown’s key witness, a Maltese shopkeeper called Tony Gauci, who alleged Megrahi had bought clothes put in the suitcase bomb.

The SCCRC also said the Crown had failed to disclose Gauci and his brother were offered reward payments totalling $3m for testifying. Given that evidence, no reasonable jury would have convicted Megrahi, and his rights to a fair trial under article 6 of the European Convention on Human Rights had been breached. [RB: Non-disclosure of the payment offer to the Gaucis is not the principal basis of the contention that no reasonable jury would have convicted.]

The commission found the Jordanian documents were hearsay and had not come from a primary source. That contradicts a previous ruling by the SCCRC. In 2007, with different commissioners involved in the case, it had decided the Jordanian documents did raise questions about the safety of Megrahi’s conviction when it recommended an appeal.

With that hearing under way in August 2009, Megrahi abandoned his case after it emerged he had cancer. “He did so at least partly because he thought that by doing so his prospects of compassionate release would be increased,” the court said.

Friday, 20 November 2020

Funding plea for appeal aiming to exonerate man convicted for Lockerbie bombing

[This is the headline over a report published today on the website of The National. It reads in part:]

The UK’s worst terrorist atrocity – the Lockerbie bombing – is returning to court as a crowdfunder is launched to pay for lawyers bidding to posthumously clear the only man to be convicted of the crime. (...)

Megrahi died in 2012, but his son Ali al-Megrahi is appealing against the conviction on his behalf.

The appeal was lodged after the Scottish Criminal Cases Review Commission (SCCRC) referred the case to the High Court in March following a ruling there may have been a miscarriage of justice.

Judges allowed the appeal in relation to the argument that “no reasonable jury” could have returned the verdict the court had and on the grounds of non-disclosure of documents by the Crown.

Aamer Anwar, the lawyer representing the family, claimed the Libyan government had “failed to honour its promise of funding the appeal” and has launched a crowdfunder. [RB: The crowdfunding page and details of how to contribute can be found here.]

He said the legal team had worked “pro-bono” for more than six years and had they charged the costs would run into millions.

The appeal hearing will start at the High Court in Edinburgh on Tuesday and is expected to last until the end of the week. [RB: Log-in information for members of the public wishing to follow the proceedings (audio only) is to be found here.]

Anwar said: “There has been a widespread assumption that our legal team have been paid fees to date, that is simply not true as they have worked pro-bono for what can only be described as the biggest criminal appeal in UK legal history.

“Despite promises over the course of several years, the Libyan government has so far failed to fund the case and so we are now forced to look to the public to support us however much they can.”

The lawyer said: “In conclusion, for the Megrahi family and many of the British families of the victims supporting the appeal, there is finally hope this is the end of a very long journey. For my team it has been six long years but for the families we represent it has been nearly 32 years of struggle for truth and justice.”

Central to the appeal are items said to have been bought by Megrahi in a shop in Malta owned by Tony Gauci, which were found in the case housing the bomb that destroyed Flight 103.

The SCCRC agreed a miscarriage of justice may have arisen as the court could not reasonably find Megrahi had bought them on the evidence before it. Gauci also received a $2 million (£1.5m) reward from the US for giving evidence against Megrahi.

Anwar added: “The judges, following the hearing in August, authorised the founding of the appeal on the additional ground of non-disclosure of the CIA cables. They also ordered that protected documents held by the UK Government should be released to the court.

“Thereafter a private court hearing … considered whether the documents over which Public Interest Immunity is claimed should be released to the appellant. A decision is still pending on whether the protectively marked documents will be released to us.” [RB: On Friday, 20 November the High Court published its decision upholding the UK Government's claim of public interest immunity. Accordingly this proposed ground of appeal falls.]

Monday, 16 November 2020

The forthcoming Megrahi appeal

[What follows is excerpted from a long document recently produced by the Crown in connection with the forthcoming posthumous appeal against the conviction of Abdelbaset al-Megrahi.]

On 6 March 2020 the Scottish Criminal Cases Review Commission referred the late Abdelbaset Ali Mohmed Al Megrahi’s 2001 conviction for the murder of 270 people in the Lockerbie bombing back to the High Court of Justiciary. (...)

The current appeal stems from an application made to the SCCRC by Mr Megrahi’s family in July 2017. In April 2018 the Commission accepted that application and began a full review of Mr Megrahi’s conviction. In their 2020 statement of reasons the Commission summarised the application by Mr Megrahi’s family as being based on 6 grounds, they were:

1. Insufficient Evidence;

2. Unreasonable Verdict;

3. Fresh Evidence, namely the Christmas Lights;

4. Non-disclosure;

5. Evidence relating to the Timer Fragment; and

6. Evidence relating to the Suitcase Ingestion.

On 6 March 2020 the Commission published their Statement of Reasons, a lengthy volume setting out the findings of their review, and in conclusion referred the conviction back to the High Court of Justiciary for an appeal hearing.

The Commission concluded that they could only refer the conviction back to the High Court on two of the above six grounds: Unreasonable Verdict and Non-Disclosure.

In June 2020 those representing the family of the late Mr Megrahi lodged their Grounds of Appeal at the High Court of Justiciary, thereby formally beginning the third appeal against conviction in this case.

The Appeal Court is bound in law to hear the appeal on the grounds of appeals in so far as they are in line with the Commission’s reference, and there is also provision for the appellants to argue that they should be allowed to argue further grounds of appeal not covered by the Commission’s reference.

The grounds to be argued at the appeal, also referred to as the scope of the appeal, were argued at the preliminary hearing on 21 August 2020.

The Preliminary Hearing called before Lord Carloway the Lord Justice General, Lady Dorrian the Lord Justice Clerk and Lord Menzies at the Appeal Court on 21 August 2020. This was a virtual hearing of the Appeal Court. Submissions were heard from the Appellants, the Crown and on behalf of the Advocate General. (...)

The Grounds of appeal were numbered Part 1, and Part 2, A – D. Arguments were made by both sides as to the scope of the appeal and whether additional grounds of appeal, which did not form part of the SCCRC’s referral, could be argued in the appeal. The grounds of appeal which were matters referred by the SCCRC were automatically included in the scope of the appeal and no arguments were made in relation to them. These are:

Ground 1 - that no reasonable jury could have convicted Mr Megrahi based on the evidence;


Ground 2 Part A - the non-disclosure of information in relation to the evidence of Crown Witness Antony Gauci.

A number of documents were listed in support of Ground 2 Part A. However, one of them, (described as Part A, para 14 in the Grounds of Appeal), was not included in the SCCRC referral and has now been excluded by the Court from the appeal.

The Appellants argued that additional grounds of appeal in addition to the Commission’s grounds of referral should also be admitted, namely:

Ground 2 Part B - the non-disclosure of information in relation to the witness Abdul Majid, also known as Giaka;

Ground 2 Part C - the non-disclosure of information contained in protectively marked documents; and

Ground 2 Part D - the non-disclosure of other information which shows there was no effective system of disclosure to ensure a proper procedural safeguard to guarantee the right to a fair trial. This information was further divided into 7 distinct areas.

Parts B, C and D (and also one item from Part A) did not form part of the reasons for the referral by the SCCRC. They were points that the SCCRC considered and have commented on within their Statement of Reasons but which they did not consider were in the interest of justice to refer. The SCCRC did say, however, that the appellants might seek to include them within an additional ground of appeal.

The Crown position at the hearing in respect of the potential additional grounds of appeal inGround 2, Part A (item 14), Part B, Part C and one of the 7 areas in Part D was that whilst recognising it was ultimately a matter for the Court, the preference was that they were heard in the full appeal hearing because the Crown would wish to answer the points and consider it is in the interests of justice to do so because to leave the points unanswered may affect public confidence in the safety of Mr Megrahi’s conviction and the administration of criminal justice in Scotland more generally. In relation to part D above, the Crown asked for all but one of the 7 examples given to be excluded from the scope of the appeal.

After hearing all the arguments, the Court made avizandum (this means a pause) while they considered their decision. On 26 August 2020 the Court issued their decision on the scope of the appeal, and set out the procedure to be followed:

1. They allowed Mr Megrahi’s son, Ali Abdulbasit Ali Almaqrahi to bring the appeal on behalf of his late father.

2. They also allowed the appellants to proceed with some additional grounds of appeal that did not relate to any of the reasons set out by the SCCRC in its 2020 Statement of Reasons. These are as follows:

a) The Court allowed Ground 2, Part B to be heard at the appeal as an additional ground. This is with regard to information relating to the witness Abdul Majid, also known as Giaka.

b) In respect of Ground 2, Part C, which related to information contained in the protectively marked documents, the court has not made a final decision about whether this will form a ground of appeal yet. Instead, it ordered that the documents in question be produced to the court and that a special hearing be fixed in a closed court in order to consider whether the Public Interest Immunity Certificate granted in respect of the documents should remain in place. A hearing took place on 11 November 2020. The result is awaited (...) [RB: On Friday, 20 November the High Court published its decision upholding the UK Government's claim of public interest immunity. Accordingly this proposed ground of appeal falls.]

c) With regard to Ground 2, Part D, in which the appellants argued that there was not an effective system of disclosure to ensure that Mr Megrahi had received a fair trial, the court refused to allow this, excluding all 7 parts of it and the wider argument. It stated that it would not allow any ground of appeal to proceed which related to "system of disclosure which was not fit for the purpose of ensuring that all relevant information was identified and disclosed", the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the respondent” (the Crown).

d) The court also set out that the hearing will start on Tuesday 24 November 2020 and the three following days. 

The Appeal Court will sit at 10am UK time from Tuesday 24th until Friday 28th [sic] November 2020. 

A bench of five Judges of the High Court of Justiciary will hear the full appeal hearing and rule on the merits of the appeal. They will be: 

The Right Hon Lord Carloway, the Lord Justice General

The Right Hon Lady Dorrian, the Lord Justice Clerk

The Right Hon Lord Glennie 

The Right Hon Lord Menzies

The Right Hon Lord Woolman.

The Crown will be represented at the appeal by three Advocate Deputes: 

Ronnie Clancy QC

Douglas Ross QC  

Nick Gardiner

They also represented the Crown in the 2007-2009 appealfollowing the SCCRC’s 2007 reference  which was ultimately abandoned by the appellant. At the appeal hearing, as senior Crown Counsel, Ronnie Clancy QC will make the Crown’s submissions to the Court.

The appellants will be represented by Senior Counsel and Junior Counsel. They are respectively:

Claire Mitchell QC

Claire Connelly.

[RB: It appears that the hearing will once again take place by means of WEBEX, a video conferencing online application. Log-in information for members of the public wishing to follow the proceedings (audio only) is to be found here.]

Monday, 2 November 2020

Robert Fisk and Lockerbie

[I am saddened to learn of the death of author and journalist Robert Fisk. His views on Lockerbie and the Megrahi conviction have featured regularly on this blog. What follows is from a column written by him in The Independent on 22 August 2009:]

For the truth, look to Tehran and Damascus – not Tripoli

Forget all the nonsense spouted by our beloved Foreign Secretary. He's all too happy to express his outrage. The welcome given to Abdelbaset Ali al-Megrahi in Tripoli was a perfect deviation from what the British Government is trying to avoid. It's called the truth, not that Mr Miliband would know much about it.

It was Megrahi's decision – not that of his lawyers – to abandon the appeal that might have told us the truth about Lockerbie. The British would far rather he return to the land of the man who wrote The Green Book on the future of the world (the author, a certain Col Muammar Gaddafi, also wrote Escape to Hell and Other Stories) than withstand the typhoon of information that an appeal would have revealed.

Brown and Gaddafi. Maybe they should set up as a legal company once their time is up. Brown and Gaddafi, Solicitors and Commissioners for Oaths. Not that the oaths would be truthful.

Megrahi's lawyers had delved deeply into his case – which rested on the word of a Maltese tailor who had already seen a picture of Megrahi (unrevealed to us at the time) so he could identify him in court – and uncovered some remarkable evidence from the German police.

Given the viciousness of their Third Reich predecessors, I've never had a lot of time for German cops, but on this occasion they went a long way towards establishing that a Lebanese who had been killed in the Lockerbie bombing was steered to Frankfurt airport by known Lebanese militants and the bag that contained the bomb was actually put on to the baggage carousel for checking in by this passenger's Lebanese handler, who had taken him to the airport, and had looked after him in Germany before the flight.

I have read all the interviews which the German police conducted with their suspects. They are devastating. There clearly was a Lebanese connection. And there probably was a Palestinian connection. How can I forget a press conference in Beirut held by the head of the pro-Syrian "Popular Front for the Liberation of Palestine" (they were known, then, as the "Lockerbie boys") in which their leader, Ahmed Jibril, suddenly blurted out: "I'm not responsible for the Lockerbie bombing. They are trying to get me with a kangaroo court."

Yet there was no court at the time. Only journalists – with MI6 and the CIA contacts – had pointed the finger at Jibril's rogues. It was Iran's revenge, they said, for the shooting down of a perfectly innocent Iranian passenger jet by the captain of the American warship Vincennes a few months earlier. I still happen to believe this is close to the truth.

But the moment Syria sent its tanks to defend Saudi Arabia after Saddam Hussein invaded Kuwait in 1990, all the MI6 truth-telling turned into a claptrap of nonsense about Col Gaddafi. (...)

Of course, we must now forget the repulsive 2004 meeting that Blair arranged with Gaddafi after the latter had supposedly abandoned plans for nuclear weapons (not that his Tripoli engineers could repair a blocked lavatory in the Kebir Hotel), an act which the former foreign secretary Jack Straw called "statesmanlike". (...)

Thank God for Jack Straw. He cleaned up Gaddafi's face and left it to Miliband to froth on about his outrage at Megrahi's reception back in Tripoli.

Meanwhile the relatives of those who died at Lockerbie – and here I am thinking of a deeply sad but immensely eloquent letter that one of those relatives sent to me – will not know the truth.

I suspect that the truth (speak it not, Mr Miliband, for you do not wish to know) lies in Lebanon, in Damascus and in Tehran. Given your cosy new relationship with the last two cities, of course, there's not a whimper of a chance that you'll want to investigate this, Mr Foreign Secretary. And not much encouragement will "Mad Dog" Gaddafi give to such an undertaking, not after the gifts – oil deals, primarily, but let's not forget the new Marks & Spencer in Tripoli – which he has given us. (...)

Ironically, Megrahi flew home to Tripoli on an Airbus A300 aircraft, exactly the same series as the Iranian plane the Americans shot down in 1988 – and about which Gaddafi never said anything.

It was Ayatollah Hossein Ali Montazeri (once Khomeini's chosen successor but now a recluse under semi-house arrest who stands up for President Ahmadinejad's political opponents) who said in Iran in 1988 that he was "sure that if the Imam [Khomeini] orders, all the revolutionary forces and resistance cells, both inside and outside the country, will unleash their wrath on US financial, economic and military interests".

Remember that, Mr Miliband? No, of course you don't. Not even a whimper of outrage.

Thursday, 29 October 2020

Fourth anniversary of death of Tony Gauci

[The death of Tony Gauci, the Maltese shopkeeper whose "identification" of Abdelbaset Megrahi was crucial to his wrongful conviction, was announced on this date four years ago. What follows is a report in the Maltese newspaper The Times:]

Tony Gauci's death means mystery might remain unresolved

Tony Gauci, the Maltese man who determined the outcome of the Lockerbie trial, has died,Times of Malta is informed. 

Mr Gauci, who lived in Swieqi, is believed to have died of natural causes. 

He had pointed at Abdelbaset al-Megrahi as the man who had bought the clothes from his Sliema shop, which were said to have been wrapped around aircraft which killed 270 people over the Scottish town of Lockerbie in December 1988. 

This evidence tied together the prosecution's thesis, that the bomb loaded on to the doomed Pan Am flight at Heathrow Airport had first left from Malta before being transferred via Frankfurt. But serious doubts were raised about Mr Gauci’s testimony over the years.

Libyan national Al-Megrahi died in 2012 with the tag 'the Lockerbie bomber’ despite the fact that the Scottish Criminal Cases Review Commission had described Mr Gauci as an “unreliable” witness, putting the onus of the responsibility of the UK’s worst terrorist attack in doubt.

The SCCRC said the Crown prosecution suppressed from Megrahi’s defence team statements showing how much Gauci changed his mind about crucial details over the years.

Documents published later had revealed that the lead investigator in the Lockerbie bombing personally lobbied US authorities to pay Mr Gauci and his brother Paul at least $3 million for their part in securing the conviction of Al-Megrahi.

Mr Gauci never spoke publicly about the case and maintained the media silence that characterised his role in the whole affair. He was last approached for comment for an edition of Times Talk in November 2013.

Mr Gauci's death signals the end of a key witness to a case which continues being fought legally by relatives of victims who believe Mr Al-Megrahi was innocent. 

[A report in The National two days later contained the following:] 2007, the Scottish Criminal Cases Review Commission (SCCRC) found six grounds where it was believed a miscarriage of justice may have occurred, paving the way for a second appeal.

The commission questioned evidence about the date on which the prosecution said the clothes were bought from Gauci’s shop.

The SCCRC also said evidence that cast doubt on Gauci’s identification of Megrahi had not been made available to the defence – in breach of rules designed to ensure a fair trial.

There was also evidence that four days before he identified Megrahi, Gauci had seen a picture of him in a magazine article about the bombing.

Megrahi dropped a second appeal in 2009 before being released due to his terminal prostate cancer.

In his last interview, he insisted he had “never seen” Gauci and had not bought clothes from him. (...)

Aamer Anwar, the Glasgow lawyer who acts for the Megrahi family, told The National: “Tony Gauci went to his grave knowing that he had always been accused of falsifying his evidence to convict al-Megrahi who until his dying breath maintained he was innocent.

“It is sad that we were unable to test his ‘unreliable identification’ evidence at appeal, however the Megrahi family remain determined to return to court one day to overturn the conviction of their father Abdelbaset al-Megrahi.”

George Thomson, who worked for Megrahi’s defence team, said the Libyan would look forward to meeting his accuser.

He told The Times of Malta: “When I last spoke to Baset on his deathbed he spoke of the day that he and Tony might meet in another place, where Tony would have to face him and answer for the lies he said against him.

“I personally hope that Tony is in a better place and that he is now at peace because he must have led a tortured life knowing that he had jailed an innocent man for money.”

[The role of Tony Gauci will feature prominently in the appeal by the Megrahi family that is due to commence in the High Court of Justiciary on 24 November 2020.]

Thursday, 1 October 2020

Appeal Court's written opinion following Megrahi procedural hearing

Following the first procedural hearing at the end of August in the appeal by the Megrahi family, I commented in this blog as follows:

This is a very good outcome for the appellant. The court has not restricted the appeal to the (disappointingly narrow) grounds accepted by the Scottish Criminal Cases Review Commission. It has also not rejected out of hand the possible relevance of the documents in respect of which first David Miliband and now Dominic Raab have asserted public interest immunity on behalf of the UK Government. Unsurprisingly, however, it rejected proposed grounds of appeal based on the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the Crown”.

The appeal court's written opinion has now been released. It can be read here. A report in the Daily Record can be read here; and the report in Scottish Legal News can be found here.

Thursday, 17 September 2020

Resignation of Richard Keen QC as Advocate General for Scotland

Richard Keen QC (Lord Keen of Elie) has resigned from the post of Advocate General for Scotland in Boris Johnson's government. For any law officer with a modicum of integrity this was inevitable on the promotion of a Bill which deliberately seeks to empower UK ministers to breach the United Kingdom's obligations under an international treaty. The only surprises are (1) that it took Lord Keen so long to take this step and (2) that the law officers for England, and the Lord Chancellor, have not followed suit. 

Richard Keen has long been involved in the Lockerbie case. He represented Lamin Fhimah who was acquitted at the Zeist trial and, as Advocate General since May 2015, his office has represented the UK Government's interest in the Lockerbie case, in particular in asserting public interest immunity in respect of documents claimed by the Megrahi legal team to be necessary for the proper conduct of the current (and the previous) appeal against conviction. References to him on this blog can be found here.

Thursday, 3 September 2020

Megrahi’s reputation, and that of Libya, will soon be restored

[An article by Dr Mustafa Fetouri headlined Why is the GNA defunding the Lockerbie case despite it being close to a verdict of innocence? is published this morning on the website of Middle East Monitor. It reads as follows:]

The only Lockerbie bombing convict is one step closer to his guilty verdict being overturned, however, posthumously. Abdelbaset Al-Megrahi died at home in Tripoli on 21 May, 2012, while protesting his innocence until his last breath. The Scottish Criminal Cases Review Commission (SCCRC) allowed the family to proceed with an appeal to clear his name. The case was sent to the High Court of Justiciary, Scotland’s highest criminal court, and a date for the final hearing has been scheduled to start on 24 November.

His 27-year-old son Ali, who is leading the family’s long and arduous fight to clear his father’s name, is certain that justice will prevail this time and that his late father’s verdict will be reversed. During a telephone conversation in Tripoli last Monday, he assured me: “My father’s name will certainly be cleared this time.”

The family’s lawyer Aamer Anwar, a distinguished Scottish lawyer who volunteered to take the case, in a series of emails confidently communicated to me: “We have a robust appeal.”

Winning this time seems certain. Professor Robert Black, a Scottish law authority, and the mind behind the first Lockerbie court setup in the Netherlands in May 2000, agrees with this analysis. He believes the Scottish court will “overturn the verdict” against Al-Megrahi, however, on the “narrower ground” of the crown prosecutor “withholding materials” from the defence team that could have helped establish Al-Megrahi’s innocence from the outset. Professor Black is “disappointed” that the court might not go as far as “to find that no reasonable court would have convicted Al-Megrahi.” He added, “I hope I’m wrong about this” – which would restore some of the Scottish judiciary’s reputation tarnished by the Lockerbie case and its aftermath.

The Lockerbie bombing, since 1988, became negatively synonymous with Libya, Gaddafi and its entire population. Gaddafi, firmly believing in their innocence, refused to hand over his accused citizens, Lamin Fhimah and Abdelbaset Al-Megrahi, to stand trial in the UK. This led the United Nations (UN) to adopt a series of sanction resolutions, including Resolution 731, passed on 21 March, 1992, with harsh economic and political punitive measures that not only isolated Libya, but made life extremely difficult for its entire population.

The long-held belief that the late Gaddafi was behind the attack still echoes within Western mainstream media, despite the mounting evidence to the contrary emerging over the years.

Now, it can be disclosed that Libya’s Government of National Accord (GNA), the only UN-recognised authority in the country, wants the mud to keep sticking to Gaddafi, Libya and its people too. The GNA is not enthusiastic about this latest development. The GNA have, illegally, cut the funding for the case over the last three years.

Al-Megrahi’s son Ali and the family lawyer are puzzled as to why the GNA cut funding at this critical junction of the case – when winning seems all but certain.

Lawyer Anwar does not disqualify the assumption that the GNA came under pressure from both the UK and the US to steer away from the case. The British and American narrative of the Lockerbie tragedy has always been that Libya is responsible and “that narrative must be maintained”, Anwar informs me.

However, suspension of defanging goes much deeper within the GNA, where corruption is rampant. A Scottish consultant to the legal team, speaking on condition of anonymity, yesterday clarified: “I believe funding is still budgeted, but the money disappears before getting to its intended final destination.”

Despite writing several times to the GNA to resume funding to meet the substantial mounting legal fees, Anwar received no replies until a few months ago, when his consultant was told that the GNA did not receive any messages relating to the funding of the case.

However, the consultant strongly disputes this, asserting that she “personally” handed over the file to the “highest official in the GNA” in a December 2017 meeting in Tripoli. When asked if “the highest official” meant Fayez Al-Sarraj, the GNA’s prime minister, she replied: “You think about it.”

It is not wholly unusual for the GNA to take such a position. Part of the political legitimacy in new Libya rests on the claim that Gaddafi was a supporter of international terror, and the Lockerbie bombing must have been his evil work too.

In November of 2019, the GNA’s Minister of Justice Mohamed Lamlum, personally stood before the International Criminal Court (ICC) to ask Saif Al-Islam, Gaddafi’s son, to face trial before the ICC, tarnishing the very judiciary he is supposed to protect and defend. Gaddafi Junior is wanted by the ICC for his – broadly disputed – role in quelling the 2011 troubles that ended his father’s rule over Libya.

According to different legal experts, the Libyan state is obliged to help its citizens abroad by all means necessary, including through funding in the event of legal issues. The Lockerbie case is much more than a petty case about a Libyan citizen, but it concerns the entire nation, its history and its reputation. This should elevate the case to a “national cause” for all Libyans, according to Anwar.
Indeed, Libyans across the political spectrum now consider the Lockerbie case a national issue and that Libya must continue funding the legal team, just as it did before 2011.
During the Gaddafi era, the government even established a consulate in Glasgow to closely monitor the case, and to help Al-Megrahi’s family who had to relocate to Scotland to be near their father while in jail.
It is not clear if the GNA will honour its legal obligations towards its own citizen, Al-Megrahi, albeit posthumously, but the legal team is not surrendering. They have already established a liaising team inside Libya to follow up with the chaotic authorities in Tripoli.
A group of volunteers inside and outside Libya are gearing up to explore other funding avenues if the GNA continues to reject meeting its legal obligations. In any eventuality, Al-Megrahi’s reputation, and that of Libya, will soon be restored.

Thursday, 27 August 2020

Appeal court accepts Megrahi lawyers' submissions regarding scope of appeal

[What follows is the text of a press release issued today by Aamer Anwar & Co:]

On the 21st August the first procedural hearing in the posthumous appeal of Mr Al-Megrahi took place. The judges retired to give consideration to our grounds of appeal, to the extended grounds as well as an application for recovery of documents held by the UK Government.

The reputation of Scottish Law has suffered both at home and internationally because of widespread doubts about the conviction of Mr Al Megrahi. It is in the interests of justice and restoring confidence in our justice system that these doubts can be addressed, but the only place to determine whether a miscarriage of justice did occur is in our appeal court.

We claimed in court that the Crown failed to disclose CIA cables in respect of a key crown witness on the basis of an undertaking given to the United States Government.

We claimed that there was systemic failure to disclose documents to the defence and that the Lord Advocate acted in a way which was incompatible with Mr Al- Megrahi’s right to a fair trial.

It was disappointing that court was told that the Secretary of State for Foreign and Commonwealth Affairs- Dominic Raab MP, had lodged a further Public Interest Immunity Certificate on the 17th August, after it was last done in 2008 by David Miliband. We believe the UK Government is refusing to declassify documents that we believe may support our ground of appeal that there has been a miscarriage of justice. 

The Government has claimed disclosure will cause ‘real harm’ to international relations and to the national security of the United Kingdom.

However, both the Megrahi family and many of the British families of victims supporting this appeal ask whose public interest and security is being protected, some 31 years after the bombing.

If the Government has nothing to hide, then it has nothing to fear from disclosing this material. We asked the Court for a specification for recovery of these classified documents and thus their disclosure.

The Judges the Lord Justice General, the Lord Justice Clerk, and Lord Menzies have now given consideration to our submissions as well as those of Crown Office and the Advocate General on behalf of the UK Government.

1. The court has authorised Ali Abdulbasit Ali Almaqrahi, the son of  the deceased Abdelbaset Ali Mohamed Al Megrahi. to institute an appeal on behalf of his father.

2. Has allowed the appellant to found the appeal on additional grounds which did not relate to one or more of the reasons contained in the Statement of Reasons by the SCCRC for making the Reference.

3.It has allowed ground (1) of appeal to be argued – the ground of appeal in relation to “no reasonable jury” could have returned the verdict that the Court did.

4. It has allowed ground (2) of appeal ‘non-disclosure’ to be argued but also includes the Crown’s failure to disclose CIA Cables – as set out in Operation Sandwood.

5. Importantly it is continuing consideration of part of our appeal on the new Public Interest Immunity Certificate – that is the protectively marked documents which the UK Government maintain should remain ‘classified’ and the Court will now appoint special counsel for this purpose to represent the appellant.

6. The Special counsel will have clearance from the security services and is entitled to see the confidential information and will appear at a private hearing which we may not attend. He/she must not disclose any of the confidential information to our legal team, except—with the permission of the court, and where permission is given, in accordance with such conditions as the court may impose.

7. November 24th  has been set as the date for the start of the appeal.

Today was an important milestone for the Megrahi family on the road to try to establish that the verdict against their father was a miscarriage of justice. There can never be a time limit on justice.

[RB: This is a very good outcome for the appellant. The court has not restricted the appeal to the (disappointingly narrow) grounds accepted by the Scottish Criminal Cases Review Commission. It has also not rejected out of hand the possible relevance of the documents in respect of which first David Miliband and now Dominic Raab have asserted public interest immunity on behalf of the UK Government. Unsurprisingly, however, it rejected proposed grounds of appeal based on the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the Crown”.]