Wednesday, 14 February 2018

Insurers cannot pursue suits against Libya

[This is part of the headline over a report published yesterday on the Business Insurance website. It reads as follows:]

Insurers cannot pursue lawsuits against Libya in connection with two terrorism acts, including the 1988 bomb explosion of Pan Am Flight 103 over Lockerbie, Scotland, that killed all 243 passengers, says a federal appeals court in upholding a lower court ruling.

In November 1985, EgyptAir Flight 648 was hijacked, which resulted in the death of passengers and the aircraft hull’s destruction, according to Monday’s ruling by the United States Court of Appeals for the Federal Circuit in Washington, DC, in Aviation & General Insurance Co Ltd et al v. United States. The US State Department determined the terrorist group involved had received considerable support from the Libyan government.

Then in December 1988, explosives concealed in the luggage compartment of Pan Am Flight 103 as it crossed Scotland killed all 243 passengers, as well as 16 crew members and 11 bystanders, according to the ruling.

The terrorist responsible was acting as an agent of the Libyan government, according to the ruling.

Libya’s sovereign immunity was suspended following passage of the State Sponsors of Terrorism Exception to the Foreign Sovereign Immunity Act in 1996 and the National Defense Authoritative Act in 2008, according to the ruling.

A number of insurers, including Lloyd’s of London underwriters, who had paid a total of $97 million in claims in connection with the two terrorist acts, filed suit against Libya. But these lawsuits were terminated following Congress’ passage of the Libyan Claims Resolution Act in 2008, which restored Libya’s sovereign immunity. Libya then paid the government $1.5 billion, according to the ruling.

President George W Bush subsequently signed an executive order terminating any pending lawsuit in US court related to Libyan-sponsored terrorism. 

The insurers filed suit in the US District Court of Federal Claims in an effort to continue their litigation. The court ruling granted the federal government summary judgment in the case.

The ruling was upheld by the appeals court’s 2-1 opinion. “After considering Appellants’ arguments, we agree with the Court of Federal Claims that the government’s action in changing the status of Libya’s sovereign immunity was neither novel nor unexpected and thus could not have interfered with Appellants’ reasonable investment-backed expectations,” said the ruling.

“Appellants’ argument that they nonetheless held a reasonable expectation of compensation, following the Government’s termination of their claims based on historical examples, is of no moment,” said the ruling, in upholding the lower court’s ruling.

The dissenting opinion states the judge could have affirmed the lower court’s summary judgment on a different basis.

[RB: When this action was first raised in 2014 I commented as follows:]


I don't think the action has much hope of success.  Even if the US Presidential Order barred Equitas [the insurance consortium including Aviation & General and Lloyd's] from suing Libya in the United States, there was nothing to prevent it doing so in Scotland (as it already had done, of course, in relation to compensation paid by Pan Am to Lockerbie victims' families: see Pan Am insurer suing US Government over Lockerbie pay-out). And in any event there was nothing to prevent Equitas suing in the US courts before the Presidential Order in 2008.  That they were caught by that Order can be argued to be their own fault for delaying so long: after all, Pan Am 103 was destroyed in 1988 and Megrahi was convicted in 2001. The present action looks to me like a try-on, probably hoping for a "nuisance value" settlement from the US government.

Wednesday, 7 February 2018

US won’t disclose fate of $500 million paid by Libya for Lockerbie bombing victims

[This is the headline over a report published yesterday on the Breitbart
News website. It reads in part:]

The US government refuses to say whether it will keep or return the estimated $500 million that remains from the $1.5 billion Libya-sponsored fund intended to compensate American victims of terrorism following the 1988 attack on Pan American World Airways Flight 103 over Lockerbie, Scotland.

Speaking on condition of anonymity, a US State Department official acknowledged that the US government paid some of this money to victims of other terrorist attacks, not just Lockerbie. Libya’s government was linked to the assault on the Pan-Am aircraft.

In a statement to Breitbart News, the State official said:
Shortly after the [$1.5 billion] settlement was received [from Libya], the State Department paid amounts to the PanAm 103 victims, LaBelle Disco bombing victims, and estates of victims who had died in other terrorist attacks that were the subject of litigation pending against Libya in US courts These payments amounted to over $1 billion.
According to State, about $500 million remained in the fund. Public data online shows that the US government has only awarded an estimated $37.7 million, indicating that much larger portion of the $1.5 billion is leftover.

Asked whether the US government will keep the leftover funds or return the money to Libya, US President Donald Trump’s administration would not say.

“In the event there are any residual balances in the Fund Account at the time of the Fund’s expiration, those balances will be transferred pursuant to arrangements agreed between the parties,” noted the 2008 US-Libya settlement of $1.5 billion awarded by the African country.US government officials declined to tell Breitbart News what the “agreed arrangements” are.

The settlement agreement dictates that the $1.5 billion is intended to compensate US victims of “an act of torture, extrajudicial killing, aircraft sabotage, hostage taking or detention or other terrorist act, or the provision of material support or resources for such an act; or by military measures” at the hands of Libya.

Under former US President Barack Obama, the American government issued compensation referrals for individuals who were not affected by Lockerbie “because there were some remaining settlement funds,” acknowledged the State official, noting that the same thing happened under former President George W Bush.

The US Department of Justice’s (DOJ) Foreign Claims Settlement Commission (FCSC) is charged with deciding who gets the Libya funds.

FCSC officials recently denied a request by about 50 former Pan Am pilots to recover $46.5 million ($75.3 million with interest) from the Libya-subsidized funds. Whether $500 million or more remains in the Libya-sponsored fund, there is definitely enough money to cover the Pan-Am pilots’ claim.

The pilots, many of them senior citizens now who served in the US military, have argued that the Lockerbie attack prompted the demise of Pan Am, which resulted in them losing their jobs and pensions.

However, FCSC officials contended that the Lockerbie incident did not lead to PanAm’s demise and therefore had nothing to do with the pilots losing their jobs.

Tuesday, 30 January 2018

Robert Parry 1949 - 2018

The death has been announced of Robert Parry, editor and publisher
of Consortiumnews.com.

Robert Parry wrote extensively about Lockerbie and the Megrahi case.
Blogposts containing links to his contributions can be found here.
What follows is taken from an article by him published on 30 June
2011 and featured on this blog on the same date in 2016.

--------------

The New York Times, like most US newspapers, prides itself on its “objectivity.”
The Times even boasts about printing news “without fear or favor.” But the reality
is quite different, with the Times agreeing – especially last decade – to withhold
newsworthy information that the Bush-43 administration [RB: George W Bush was
the 43rd President of the United States] considered too sensitive. (...)

The Lockerbie Bombing
Yet, to this day, The New York Times and other major US news outlets continue
to tilt their coverage of foreign policy and national security issues to fit within the
general framework laid out by Official Washington. Rarely do mainstream
journalists deviate too far.

It has been common, for instance, for the Times and other media outlets to state
as flat fact that Libyan agents, presumably on orders from Col Muammar Gaddafi,
blew Pan Am 103 out of the skies over Lockerbie, Scotland, in 1988, killing 270
people.

However, anyone who has followed that case knows that the 2001 conviction of
Libyan operative Ali al-Megrahi by a special Scottish court was highly dubious,
more a political compromise than an act of justice. Another Libyan was found
not guilty, and one of the Scottish judges told Dartmouth government professor
Dirk Vandewalle about “enormous pressure put on the court to get a conviction.”
[RB: The High Court information officer, Elizabeth Cutting, has denied that this
ever happened.]

In 2007, after the testimony of a key witness against Megrahi was discredited,
the Scottish Criminal Cases Review Commission agreed to reconsider the
conviction as a grave miscarriage of justice. However, that review was proceeding
slowly in 2009 when Scottish authorities released Megrahi on humanitarian
grounds, after he was diagnosed with terminal prostate cancer.

Megrahi dropped his appeal in order to gain the early release, but that doesn’t
mean he was guilty. He has continued to assert his innocence and an objective
press corps would reflect the doubts regarding his curious conviction. [For details,
see Consortiumnews.com’s “Three Deadly War Myths.”]

After all, the Lockerbie case is not simply a historical mystery. It is one of the
central reasons why the United States and its NATO allies are insisting that
Gaddafi must be removed from power prior to any negotiated settlement of
Libya’s ongoing civil war.

In pressing this need to oust Gaddafi first, President Barack Obama made a
reference to the Lockerbie bombing at his Wednesday news conference, a
presumed “fact” that may have set the White House correspondents to nodding
their heads but may well not be true.

Which brings us to a key problem regarding American journalists siding with US
officials in presenting information to the American people: Is it really “good for
the country”?

By now, history should have taught us that it is often better for the American
people to know what their government is doing than to be left in the dark where
they can be led around by clever propagandists, aided and abetted by a complicit
news media.

Indeed, when the Times and other US news outlets act in that way, they may be
causing more harm than the propaganda organs of a repressive regime would,
since the “news” from those government mouthpieces is discounted by those who
read and see it.

Friday, 26 January 2018

Large majority of locals want 30th anniversary of Lockerbie disaster to be marked

[What follows is excerpted from an item published today on the
DnG24 website:]

On December 21 it will be three decades since Pan Am 103 fell from the sky over Lockerbie.

Last year’s 29th anniversary went largely unmarked and Dumfries and Galloway Council revealed they would only honour anniversaries if the community indicated desire for such an event to take place.

Following that, Lockerbie Community Council asked townsfolk to share their views on how and even if the 30th anniversary should be marked.

Chairwoman Jan Andrews last week said: “We asked for feedback but very little came our way. I understand some people have said that they think it’s time to move on, they believed that the last big show of respect was the 25th anniversary and after that the disaster, though always remembered, should be marked in more personal or subtle ways.

“However, other people in the town feel exactly the opposite and think it’s ridiculous that the 30th anniversary could pass by without a proper event to mark it – but how do people want to mark the anniversary?”

She added: “As a local body it’s up to the community council to nd out how townsfolk want to mark the event so we are appealing for people to be vocal and let us know. We need to work together.”

And an online survey, which asked the question ‘Do you want the anniversary to be marked?’, has so far seen 87 per cent of voters say yes.

And when asked how to mark the event, 47.92 per cent preferred the idea of holding a ceremony at the cemetery; while 25 per cent favoured ‘something subtle – like a minute’s silence’; just ten per cent supported a civic reception; while the remaining share of the votes were spread between something different, no event at all and other – which gives people the chance to write in with their ideas.

The survey is still ongoing (...)

And encouraging people to get in touch, she said: “It might sound early to be asking people in January what they want to happen in December, but if the general consensus is that townsfolk want to see the dis- aster marked in a big way, then that takes months of time and planning. The air disaster is a big part of our town’s history and it’s very important that it is marked respectfully in a way that honours those who died and our town.”

Monday, 22 January 2018

Pan Am pilots’ claim for restitution from Lockerbie bombing fund is rejected

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

An attempt by pilots of Pan American World Airways, the once-dominant airline victimized by the 1988 mid-air bombing of Flight 103 over Lockerbie, Scotland, cannot recover money from a $1.5 billion fund created by Libya to compensate victims of the bombing, a Washington-based commission has ruled.

The pilots claimed that the bombing led directly to the demise of Pan Am, costing them their jobs, their health insurance and their pensions. Pan Am folded suddenly on Dec 4, 1991, after an attempt to buy Northwest Airlines and a merger with Delta Air Lines both fell through.

Fifty Pan Am pilots and one flight attendant have been pursuing Libya in the courts since 1994, but it wasn’t until 2013 that they were allowed to file a claim with the Foreign Claims Settlement Commission, which reviews claims on the Libyan fund. The commission issued a preliminary ruling against the pilots in 2016, but they were granted a hearing in Washington in December 2016. In that hearing, a number of pilots, as well as former Pan Am executives and economic analysts, tried to make the case that the Dec 21, 1988, bombing, which killed 270 people in the plane and on the ground in Scotland, set off the chain of events which led to the airline’s demise.

But commissioners Anuj C Desai and Sylvia M Becker stood behind their preliminary ruling, and their analysis of Pan Am’s decline, which they said was caused by many other factors, including a recession, airline deregulation, oil price spikes and the first Iraq War. The pilots “failed to prove that,” Desai and Becker wrote, “if not for Lockerbie, Pan Am would have remained in business. Pan Am’s 1991 liquidation was too remote, both factually and temporally, from the 1988 bombing; and far too much happened in the intervening three-year period to hold Libya liable for Pan Am’s liquidation.”

The ruling was issued Tuesday. There is no appeal from the Foreign Claims Settlement Commission, and the case is over. (...)

Bruce Abbott, the leader of the pilots’ case, said that after the December 2016 hearing at the federal courthouse in the District, “I came away with a very empty feeling.” He said the two commissioners “spent a whole day chopping away at things that were not of significance to the overall presentation.” Almost all of the pilots were military veterans, Abbott said, “and we had answered the call for our nation. We wanted a forum with competent triers of fact. I think we were shut out on that. I don’t think we got a fair hearing and I don’t think we got to the essence of the case.”

Tuesday, 9 January 2018

Reflecting on Lockerbie

[This is the headline over an article by Kenny MacAskill published yesterday on the website of Cable magazine. It takes much the same line as his recent book and merits a similar response, such as those accorded to the book in reviews by James Robertson and John Ashton. Mr MacAskill's article reads in part:]

... this month brings the sixteenth anniversary of the conviction of Abel Basset Al Megrahi at a Scottish court convened at Camp Zeist in the Netherlands. He remains the only man convicted of the crime. Megrahi was released by me in 2009, on compassionate grounds, when I was Justice Secretary. In many ways, the trial has overshadowed both the events leading up to it, and actions subsequent to it. For some, it has become a cause célèbre and for others, simply the culmination of the tragedy.
Yet, the Lockerbie bombing is not just the story of one man and his journey through the courts. It is also one of international intrigue and diplomatic duplicity.  The atrocity didn’t happen in isolation – in many ways, it was the culmination of years of terror and counter-terror. The trial and subsequent appeals only formed part of a far wider picture, one in which vested state interests were being pursued, and in which economic goals mattered more than justice. (...)
For many, especially in Scotland, the Megrahi trial itself has come to overshadow the events that led up to both the atrocity and its consequences. Perceived or real failings amongst police, prosecutors, judges, or even myself, have often distorted scrutiny of the wider issues at play. The focus, even in the media, has been on the court case rather than on the economic and security deals being traded for prisoners, or on the nature of strategic alliances, of which there were many.
Reporting of the fact that evidence was denied to the Scottish court, and threats to close down Scottish press coverage of this issue, has been muted to say the least. I know this from discussions with an Editor threatened, and with the UK Minister doing the threatening. Even false news (a popular term at this point in time) has been allowed to become received wisdom, such as the so called ‘hero’s reception’ for Megrahi after his release and return to Tripoli (despite being exposed as fake by both WikiLeaks and former State Department officials).
Perhaps there should have been more wariness all those years ago, when an Italian air force plane in UN markings collected Megrahi and his co-accused – Al Amin Khalifah Fhimah – from Tripoli, to take them to the Netherlands for trial. For though this was to be a trial held under Scots law (albeit convened in a former Dutch air force base), the major ground rules had already been set. However, the Scottish judges presiding over the trials has not yet been notified of those rules.
Vested financial interests should perhaps also have been discerned. The first Scots lawyers to visit Gadhafi travelled on a plane provided by Babcock and Wilcox. Others later returned on the private jet of Tiny Rowland.
For the trial had been brokered by Britain and the United States, in negotiation with Libya, with the intervention of many other actors (the United Nations in particular) at the very highest levels. Sanctions were hurting Libya; it needed to negotiate. The West, for its part, wanted a strategic partner in the campaign against Islamic terror, as well as access to Libya’s natural resources. The trial came about just as major companies were lobbying for access to Libya. American companies in particular were concerned at European businesses – such as BP – gaining a foothold in the North African country while they were still excluded. Marathon Oil, among others, lobbied the White House relentlessly.
The negotiations eventually resulted in the Libyans choosing Scots law for the process, albeit in a neutral venue. Scots law would always be preferable to a trial in America where little justice could be expected, and where anyone convicted was unlikely ever to see the light of day again. Handing citizens over to the United States was as unacceptable to the Gadhafi regime as it remains to every Libyan grouping to this day.
The discussions also covered the question of who would appear for trial. Megrahi and Fhimah were offered up. Others, far more culpable and senior, were also sought by the police and prosecutors. But the deal brokered by the UN exculpated Gadhafi and his leading henchmen – like Abdullah Senussi, Gadhafi’s head of military intelligence – from facing justice. The Libyan leadership was thus given a get-out-of-jail card. Others were not so lucky.
Megrahi and his co-accused were the highest-ranking officials that the Libyans were prepared to sacrifice – and the lowest-ranking that the West would accept. Western interests dictated that it was acceptable to live with the Libyan leadership being absolved; but someone had to stand trial. The legal process provided cover for the political and economic deals the West wanted and so Megrahi and Fhimah were offered up in the Libyan national interest.
Advice from Scottish lawyers to the accused not to present themselves for trial was ignored: new Libyan lawyers provided by the Gadhafi regime made it clear that these men would be going to the Netherlands, no matter what. Libya, crippled by Western sanctions, required these two to take the fall for the country – and they were lightning conductors, drawing attention away from anyone higher up.
And so it was that one man – Megrahi – was convicted and the other acquitted, sixteen years ago this month. The trial process was highly unusual, not just in its setting but in its format, with three judges sitting without a jury.
There are certainly questions over the reliability of Megrahi’s conviction in light of evidence that has since come to light. That’s quite understandable given the circumstances of the attack, and the scale of the crime scene. Indeed, it was a quite remarkable police investigation and great credit should be given to those involved. That said, the post-trial evidence which has emerged doesn’t mean that Megrahi was uninvolved in the crime. A mere innocent abroad, he certainly was not. He was a senior Libyan agent, from Gadhafi’s tribe, married into senior families who had faithfully carried out the regime’s instructions, both before and after Lockerbie.
This will doubtless be the focus of yet more debate. That is understandable. (...)
People will continue to form their own judgements on my decision to release Megrahi on compassionate grounds. That’s their right and entitlement. But I stand by my position. Further information received since has only reinforced my view. (...)
Before that happened, however – and this is an issue which receives far less attention – I had the opportunity to transfer Megrahi. I chose to reject this opportunity. Prisoner transfer applications are routine and were invariably granted by me, as by both my predecessor and successor. The process applies to bringing Scots who have committed crimes abroad home, as well repatriating foreign offenders from our land.
What was unusual about this particular Prisoner Transfer Agreement (PTA) was how it came about – and why I refused it. Indeed, it was the only one I ever rejected. As Jack Straw (then UK Home Secretary) told me, the UK-Libya PTA came about as the UK government sought to support BP’s interest in obtaining a lucrative contract in Libya. The imperative was simple – no transfer deal, no contract – and the UK was anxious that its own company benefit from the substantial profits to be made, and not an American competitor.
I rejected the transfer application for Megrahi. I did so not because it was the only one in existence that allowed for the state and not just the prisoner to apply; nor because there was only one Libyan prisoner in a Scottish jail – the man convicted of the Lockerbie bombing. I did so instead because it became clear that undertakings had been given at the time of the trial that any sentence given to Megrahi should be served in a Scottish prison.
This information came to me not from the UK government – which was focused only on driving through the Prisoner Transfer Agreement – but from Eric Holder, the United States Attorney General. At the time the trial was being agreed, he had been the Deputy Attorney General. He was therefore a man well-placed to know what had been agreed. Holder was adamant that any sentence meted out to Megrahi should be served in a Scottish jail, even if David Miliband, the UK Foreign Secretary at the time of my decision, was unforthcoming on the issue. That is why I ruled out a prisoner transfer application which I would normally have authorised. (...)
I’m used to people taking opposing positions on my decisions; that goes with the job. I do, however, object strenuously to the disparagement of those who served the Scottish justice system at this time. No system is foolproof and that’s why safeguards are built in. All systems can make errors and need to be able to accept and atone for them. But the constant focus on just one aspect of the Lockerbie tragedy ignores the much wider picture, and lets the British and American governments off the hook for their hypocrisy and duplicitous actions.
I believe those who were involved in the Scottish justice system, at all levels in this case, deserve praise and respect. Most especially, this should go to those who attended the horrific crash scene and dealt with it as best they could. They shouldn’t be defamed for alleged planting of evidence. The work was hard and horrifying – and all at a time before PTSD was properly acknowledged, never mind treated. A dogged and determined investigation should be appreciated for the fine skills the investigators deployed – not denigrated for alleged falsities. Then, at the trial stage, both prosecutors and judges acted professionally in dealing with the facts then before them.
There are good people who have genuine doubts about the integrity of the trial, such as Dr Jim Swire, who lost his daughter in the tragedy. Though I respect them, I profoundly disagree with them. Meanwhile, there are others who are part of a ‘Megrahi industry’ that has been in business since the corporate jets were first utilised. Conspiracy theories abound and most, as is usually the case, are simply nonsensical.
Meanwhile, it shouldn’t be forgotten that not just the American victims’ families but most others stand by the conviction, even if almost all recognise that there’s more still to come out. Much has, of course, been leaking out in dribs and drabs as further information about British and American links with Libya emerge, and as the CIA extract more people in the know from the failed Libyan state they’ve created. I’ve always supported the Scottish government’s position on the benefits of having an international enquiry to consider all aspects of the Lockerbie affair. A Scottish court alone has no powers to compel the necessary witnesses, or obtain the required information.
Yet while there are legitimate questions over the strength of the conviction, which I share, this bombing was carried out by Libya. The evidence shows it, Gadhafi admitted it, and the National Transitional Council which replaced him also accepted that his regime was culpable.
The Lockerbie bombing was the horrific culmination of years of terror and counter-terror. From atrocities at Rome and Vienna airports and bombings in Berlin bars, to sanctions on Libya and even air strikes on Gadhafi’s family compound in 1986. It culminated in the downing of an Iranian airliner by the USS Vincennes in July 1988, killing all aboard. President Bush refused to apologise for this act and it caused outrage across the Arab world. A bounty was put up to avenge the act and that was accepted by the Popular Front for the Liberation of Palestine General Command (PFLP-GC).
This group was planning the downing of a Pan Am airliner, resulting in the Helsinki warning in the form of a memorandum issued by the US State Department to American embassies. This has fuelled conspiracy theories ever since. In fact, all it showed is what we’ve come to experience in recent years: that security services know something is planned, but don’t necessarily know when or where, and security is tightened accordingly.
However, the detention of a PFLP-GC cell in Germany some two months before the Lockerbie bombing spiked the initial bombing plan. Those arrested had Pan Am timetables and bag tags, and were planning an operation in a similar style to what ultimately befell Flight 103. Thwarted this time, what was to be done to fulfil the contract?
The PFLP-GC operated closely with the Libyans – also with Syria, Iran, and other Middle East states. In the PFLP-GC’s time of need, the Libyans stepped into the breach to help them in their next, decisive, plan. Tripoli had been aware of what had been going on, as Gadhafi himself would later admit. Though, as he added, had they planned it, they wouldn’t have used Malta as it was too geographically close to Libya and would have raised suspicion. But, presumably needs must and so Libya finished off the terror strike initially planned by the Palestinians. There are serious questions as to just how the fateful bomb was placed aboard the Pan Am aircraft in Malta: it remains a mystery to this day. But Gadhafi confirmed that it was planted there.
Megrahi and Fhimah weren’t the principal parties involved, although – as noted earlier – suggestions of their complete innocence are fanciful. Those who would sanctify Megrahi forget he was a senior security service agent in a despicable regime. The idea that he just found himself in Malta on a false passport, with no apparent luggage as some innocent abroad, is absurd. I certainly doubt that he was the bomber, but given who he was and the roles he held, I have no doubt that he was involved in the wider operation. (...)
So as the anniversary comes round, people will form their own views and make their own judgements – on me, and on Scottish justice. But let them also examine the economic and strategic backdrop which saw sanctions dropped and prisoners rendered in return for access to natural resources and a strategic ally against Islamic terrorism. The process of justice around the Lockerbie bombing offered up two minnows but protected the major players – a situation which continues to this day. It was a process which also saw Britain and America condemn the release of Megrahi while openly consorting with Gadhafi.
The court case, like Scotland more broadly, was just one small cog in a far larger wheel.

Friday, 5 January 2018

Time for the Scottish justice system to accept Megrahi verdict was wrong

[This is the headline over a letter from Iain McKie that appears in today's edition of The Herald. It reads as follows:]

I found Jim Swire’s timely reminder that 29 years after the UK’s worst terrorist atrocity was perpetrated over Lockerbie justice has still to be delivered extremely sad and humbling (Letters, January 2).

Year after year this committed father, after losing his daughter Flora in this outrage, retains the strength and integrity, with other relatives, to challenge the Scottish justice system to finally do the right thing and value justice over incestuous self-interest.

Dr Swire rightly highlights how Lord President of the Court of Session and Lord Justice General Lord Carloway, has played and continues to play a central part in the national scandal which is Lockerbie. His 2015 declaration that the relatives of the victims did not have a “legitimate interest” in challenging the conviction might have had a certain legal logic but lacked the humanity and wisdom that the Scottish people have a right to expect from those interpreting the law.

It could be argued that as more and more evidence has been adduced Scotland’s legal system has buried its head ever more firmly in the sand.

Year after year the case against Abdelbaset Ali Mohmed al-Megrahi for this horrendous crime is shown to be weaker and weaker. With the [2007] Scottish Criminal Cases Review Commission findings ringing in his ears, and the conclusions of the four-year Police Scotland criminal enquiry about to be handed over to Crown Office, it is time for his Lordship to lift his head and listen.

How sad if our judiciary should remain the sole barrier to justice for the 270 souls who perished and the loved ones they left behind.

The people of Scotland are looking to Lord Carloway and his learned colleagues, after carefully weighing the evidence, to finally acknowledge this monstrous injustice and show that the Scottish justice system has the heart, humanity and courage to finally right this monstrous wrong.

Martin Luther King stated: “Our lives begin to end the day we become silent about things that matter.”

The tragedy of Lockerbie matters and it is time for the Scottish justice system to accept this and act.

Justice without humanity is indeed an empty vessel.

Tuesday, 2 January 2018

Why we must have an inquiry into events at Camp Zeist

[This is the headline over a letter from Dr Jim Swire published in today's edition of The Herald:]

Regarding the recent release of selected government papers under the 30-year rule, I am grateful that at least, under Douglas Hurd as British Foreign Secretary in 1992 we UK Lockerbie relatives were described thus: “Jim Swire, the father of a Lockerbie victim, has campaigned to clear Megrahi's name. He met the foreign secretary in 1992 and is described in the papers as a 'sensible man with whom it is important to keep in touch'".
Years later however, Lord Carloway, for the Scottish High Court turned down the UK relatives’ request for a further appeal against the Megrahi verdict. But would not he have been aware that the verdict reached against Megrahi was at least "unsafe"? The Scottish Criminal Cases Review Commision after three years' hard research had told him so. Therefore clearly any agreement to a further review of the evidence might overturn the verdict, raising dire questions about the function of the Scottish criminal prosecution authorities.
Anyone doubting the need to review events at Zeist should turn to those parts of these papers which refer to the opinion of the UN’s appointed observer at the trial, Professor Hans Koechler of Vienna. Review of his work suggests that far from being merely "flawed justice" the failure of the Crown to share critical information with the defence team rendered the whole process invalid as a criminal trial.
It is a task of the Scottish criminal prosecution authorities to produce a just outcome in murder trials, and to see to it that their case is argued in a level playing field where critical information is shared and debated between the defence and prosecution. "Equality of arms" cannot exist where the prosecution which inevitably has the powers necessary to elicit the facts, chooses to sequester many of those facts from the eyes of the defence and the court.
Until the evidence is reviewed in a full and fair open court, or a fully empowered inquiry, how is the Scottish public to be confident that their system is not simply hiding behind an incestuous cloud of opacity in order to conceal its own shortcomings?
Better to lance the boil and review the evidence in public now, rather than to await a situation over which they may have lost control. Even so the period when delay in justice becomes synonymous with denial of justice has been passed long since in this case.
Perhaps some may now begin to believe that Scotland’s system, proudly independent despite the Act of Union, is now obstructing rather than furthering that great ideal, and denying the people it must serve the right to question what their rulers tell them.
Twenty-nine years later we still need to know all that is known about the failure of the protection of our families, and about those involved in perpetrating this diabolical atrocity. Since justice may have failed us all at Zeist, it may become evident that the procedures there have done little but protect the real perpetrators from justice.

Monday, 1 January 2018

Original Lockerbie bomber appeal 'showed Scottish justice at its most effective'

[This is the headline over a report published in today's edition of the Glasgow Evening Times. It reads as follows:]

Cabinet members praised the handling of the original appeal into the conviction of Lockerbie bomber Abdelbaset al-Megrahi for showing Scotland's justice system "at its most professional and effective", official papers reveal.

Scottish Executive papers from 2002 newly released by the National Records of Scotland record the discussion of the Cabinet meeting on March 13 that year after Megrahi lost his appeal against his 2001 conviction for the 1988 bombing which killed 270 people.

The minutes state the Cabinet noted its appreciation for the "excellent" work of the Crown Office and Procurator Fiscal Service over the appeal.

It continues: "The way the appeal had been handled had shown the Scottish criminal justice system at its most professional and effective and was a credit to all concerned."

Holyrood is currently considering a petition for an independent inquiry into Megrahi's conviction from Justice for Megrahi campaigners, who include relatives of the bombing victims.

The long-running petition is being kept under consideration pending the completion of a Police Scotland operation investigating nine allegations of criminality levelled by Justice for Megrahi at the Crown Office, police, and forensic officials involved in the investigation and legal processes relating to Megrahi's conviction.

Megrahi was jailed for for 27 years but was released home to Libya on compassionate grounds in 2009 and died of prostate cancer aged 60 three years later.

Five years after he lost his 2002 appeal against his conviction, the Scottish Criminal Cases Review Commission recommended in 2007 he should be granted a second appeal.

He dropped the second attempt to overturn his conviction in 2009, ahead of his return to Libya, but his widow Aisha and son Ali lodged a new bid to appeal against his conviction in July 2017.

[RB: A similar report appears today in The Times.

I wish a happy New Year to all readers of this blog.]

Sunday, 31 December 2017

Atrocious failures blight our justice system

[What follows is excerpted from an editorial in today’s edition of The
Observer. The  “atrocious failures” referred to in it apply equally in the
Scottish prosecution system and, as the Megrahi case demonstrates
only too clearly, extend beyond the police to the prosecution service
itself.]

Atrocious failures blight our justice system. Should disclosure decisions be taken
away from the police?

The right to a fair trial is a linchpin of the rule of law and a free and democratic
society. So it is right that the collapse of two rape prosecutions in recent days,
both due to police failure to disclose relevant material to the defence, has cast
a fresh spotlight on whether that right is under jeopardy.

The obligation of police and prosecutors to disclose unused material that might
support the defence case is critical to ensuring a fair trial. Indeed, a failure to
disclose relevant information to the defence team is one of the most common
causes of miscarriages of justice. In the cases of Liam Allen and Isaac Itiary, both
accused of rape, the Met police failed to hand over relevant text messages to
defence lawyers in a timely fashion. When this finally happened, both cases were
dropped, but not before Itiary had spent four months in jail awaiting trial and Allan
two years on bail. The attorney general rightly labelled this an “appalling failure” of
the criminal justice system.

There are competing narratives about what lies behind this. Some hold up these
cases as a sign that the pendulum has now swung the other way in a police force
once notorious for its failures to take rape allegations seriously. (...)

But it is irresponsible to imply police failures in disclosure are a problem specific to
rape prosecutions. In July, a joint report on disclosure by the police and
prosecution service inspectorates raised concerns about disclosure practices within
the police and CPS across all types of cases. (...)

Others have argued this is about austerity: police and CPS budgets have been cut
significantly since 2010 and the number of police officers has declined by more
than 20,000 even as recorded crime has increased. Not only that, the government
has instituted massive cuts to legal aid.

There is no question that our criminal justice system is becoming more and more
stretched. The result is that access to justice is impeded for growing numbers of
people.

But the story does not start and end with government cuts. Rules around
disclosure were first introduced in the 1990s after a series of high-profile
miscarriages of justice, such as the wrongful convictions of the Birmingham Six.
Twenty years later, the amount of data involved in criminal cases has ballooned,
thanks to the proliferation of computers, tablets and mobile phones.

This makes the investigation and prosecution of criminal offences far more complex
and time-consuming than ever, while the massive volume of data confronting the
police in all sorts of cases makes meeting their obligations on disclosure
increasingly difficult. The implications of this accelerating burden on the criminal
justice system have never been properly debated; rather, they have been shoved
into the “too difficult” box.

Police cultures also impede disclosure. The role of the police is to act as an
impartial investigator; it is the CPS whose job it is to prosecute a case. But the
nature of police work means detectives and officers have to develop theories about
their cases. Some officers may wilfully conceal evidence that undermines the case
they have constructed. But basic human psychology – none of us much likes to be
proved wrong – means that many more may be blinkered by unconscious bias
that draws them away from evidence that undermines their case theory. This has
led some to question whether it is right to leave disclosure decisions to the police.
At the very least, the police need proper training, but it has been found to be
inadequate across the majority of police forces.

The police wield immense power over our lives. From Hillsborough to Stephen
Lawrence, the Birmingham Six to child sex abuse in Rotherham: the past tells us
that when they are not adequately held accountable for that power, the result can
be deep injustices of the very worst kind.

Accountability has increased significantly in the past 20 years, with the
establishment of the Independent Police Complaints Commission and independent
inspectorate. But police failings on disclosure have been swept under the carpet
for too long, even as they are further aggravated by austerity and the sheer
volume of data in the modern world. If we continue to ignore them, we will pay
the ultimate price: the guarantee of a fair trial.