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”.]

Saturday, 22 August 2020

Megrahi lawyers' statement on preliminary hearing and funding issue

[What follows is excerpted from a press release issued today by Aamer Anwar & Co:]

The reputation of Scottish Law has suffered both at home and internationally because of widespread doubts about the conviction of Mr Al Megrahi. (...)

We claimed today 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 is disappointing that the Secretary of State for Foreign and Commonwealth Affairs Dominic Raab  for has lodged a further Public Interest Immunity Certificate, which in essence means 31 years after the bombing, the UK Government still refuse to declassify documents that we believe indicate a miscarriage of justice.

Many of the families have asked whose public interest is being protected.

Today the court formally considered our Grounds of Appeal as well as extended grounds to be argued at a full hearing proposed for November 23rd.

The Judges will give their decision [later] on the extended grounds and the specification for recovery of documents.

This is an extremely tight timescale and the question of funding was raised with the court, as despite promises by the official Libyan Government over several years for funding support for the legal case, they have failed to do so.

We understand the matter rests with the Libyan Prime Minister and the Presidential Council since the 23rd July 2020.

We require equality of the arms of justice and we await the decision of the Libyan Government.

Many Libyans believe that their country was punished for a crime they did not commit and innocent man, Mr Al-Megrahi was incarcerated.

Today was an important milestone for the Megrahi family on the road to establishing that the verdict against their father was a miscarriage of justice.

Many of the British families of the victims supporting this appeal still ache for their loved ones and yearn for  truth and justice.

There can be no time limit on justice.

This is opportunity once and for all to have finality and closure.

We await the decision of the judges on the issue of the documents being declassified and extended grounds.

Friday, 21 August 2020

Lockerbie bombing: Megrahi family plea to access government documents

[This is the headline over a report published this afternoon on the BBC News website. It reads in part:]

Lawyers for the family of the only man convicted of the Lockerbie bombing have asked to see protected UK government documents on the case.

They said it was "in the interest of justice" that they saw the items, which are covered by a public interest immunity certificate.

The call came as an appeal against Abdelbaset al-Megrahi's conviction returned to court. (...)

Megrahi's family have requested a posthumous appeal against the conviction following his death in 2012.

A virtual hearing took place before the Lord President, Lord Carloway [RB: In criminal proceedings Lord Carloway is properly described as the Lord Justice General], the Lord Justice Clerk, Lady Dorian and Lord Menzies.

Claire Mitchell QC, representing the Megrahi family, said the defence should have access to the protected documents.

She told the court: "Given the passage of time, these documents should fall now to be disclosed."

Ms Mitchell also said there had been a "systemic failure of disclosure" over a range of other documents connected with the case.

However, advocate depute Ronald Clancy QC said the Crown had gone out of its way to be "transparent" and provide material.

He said part of the problem with the "systemic failure argument" was that no attempt was made to define what the proper system should have been at the time.

Ian Duguid QC, representing the Advocate General, said the Secretary of State for Foreign and Commonwealth Affairs continued to assert public interest immunity over the two protected documents.

Lord Carloway said the judges would issue a written decision on the proceedings in due course, while the full appeal court hearing is provisionally scheduled to start on 23 November before five judges.

[RB: A longer and slightly more informative report is now available here on the STV News website.]

Thursday, 20 August 2020

Pre-hearing briefing by Megrahi family lawyers

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

A sitting will be held on Friday 21st August 2020 at 10.00am for the procedural hearing in an appeal against conviction following our successful application to refer the conviction of the late Abdelbaset Ali Mohmed Al-Megrahi to the High Court for determination. 

On Friday the case will presided over by Scotland’s most senior judge the Lord Justice General, Lord Carloway along with the Lord Justice Clerk, Lady Dorrian and Lord Menzies.

My firm of solicitors has instructed Claire Mitchell QC, Gordon Jackson QC, Clare Connelly and our Edinburgh Agent Rosemary Cameron as part of our legal team.

Our team will appear at the hearing together at the Glasgow Training Rooms, The Pentagon Centre, 36 Washington Street, Glasgow, G3 8AZ on Friday. We will arrive at approximately 9.05am and a statement will be issued following the hearing.

What is likely to happen at the hearing?

a. The hearing will take place by means of WEBEX, a video conferencing online application. The Judges will appear on Screen and our legal team will appear from the one facility in Glasgow. To be given access to the live proceedings please contact the head of Judicial Communications. [RB: To obtain permission for audio access to the hearing, email communications@scotcourts.gov.uk. Only bona fide journalists are accorded video access.]

b. We will need to move the Court to allow the case to proceed in the name of the son of the deceased i.e. Ali Al-Megrahi

c. We need to have the grounds of appeal received and allow the court to consider them.

d. We need to move the Court to consider granting us authority to see certain documents over which public interest immunity is asserted. Our argument is that Public Interest Immunity Certificate is not everlasting, it has been 31 years since the bombing and the UK Government represented by the Advocate General should justify why it is still asserting PII and denying full disclosure of this information to our team.

On the 21st December 1988, 270 people from 21 countries were murdered in the bombing of Pan Am Flight 103 over Lockerbie, the worst terrorist atrocity ever committed in the United Kingdom.

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 Appeal was commenced in 2007 but following the diagnosis of terminal cancer it was suddenly abandoned in 2009.

It is widely claimed that the Lockerbie bombing was ordered by Iran and carried out by a Syrian based terrorist group in retaliation for a US Navy strike on an Iranian Airbus six months earlier, in which 290 people died. 

The reputation of the Scottish criminal justice system has suffered badly both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi; he was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.

A reversal of the verdict would have meant 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.

In June 2014 I lodged an application with the Commission (SCCRC) seeking to overturn the conviction of Abdelbaset Ali Mohmed al-Megrahi for murder. The application was submitted on behalf of the Immediate family members of the late Mr. Al-Megrahi along with Dr Jim Swire, Reverend John F Mosey and 22 other British relatives of passengers who died on board Pan Am Flight 103.

The Appeal Court in a judgment in July 2015, ruled that the relatives of Lockerbie bombing victims would not be allowed to pursue an appeal on behalf of the only man convicted of the crime. The families did not give up and in July 2017 a further application was lodged with the Commission on behalf of the Al-Megrahi family.

There can be never be a time limit on justice, the families who support this appeal have never given up their search for the truth.  On March 11th 2020, the Scottish Criminal Cases Review Commission decided that Mr. Megrahi’s case should be referred to the High Court for the determination.

The Commission believes that there may have been a miscarriage of justice in relation to the conviction, and that it is in the interests of justice to refer the case to the High Court.

The Commission believes that a miscarriage of justice may have occurred by reason of an ‘Unreasonable Verdict’ and the ground of ‘Non-Disclosure’. These grounds incorporate many of the issues we had identified in our application.

Unreasonable verdict

S106(3)(b) of the 1995 Act allows an appeal on the basis that a conviction was based upon a verdict that no reasonable jury, properly directed, could have returned. Despite the fact there was no jury here, that ground of appeal remains open to Mr Al Megrahi.

This ground relates to the Court’s finding that Mr Al Megrahi was the purchaser of items that were located within the suitcase which housed the bomb which destroyed Flight 103. Said items having been bought in a shop in Malta owned by Mr Tony Gauci.

The Commission have agreed with our submission that the Court could not reasonably find that Mr Megrahi was the purchaser of the items on the basis of the evidence which was before them. This finding was central to the Crown case against Mr Al Megrahi, in essence if he could not be linked to the items within the bomb suitcase, there would have been insufficient evidence to allow the Court to convict.

Mr Gauci’s statements and his evidence on identification were inconsistent and made in circumstances hugely prejudicial to Mr Al Megrahi.  His evidence regarding the date of the purchase of the items from his store “could – and should – not have been accepted as credible or reliable.”

The Commission have concluded that no reasonable Court could have accepted the evidence that Mr Megrahi was identified as the purchaser of the items from Gauci’s shop. That being the case, no reasonable Court could have convicted him.

Non-Disclosure

We submitted serious allegations of the failure of the Crown to disclose evidence which could have been key to the defence and interfered with the right to a fair trial.

The Crown failed in its duty of disclosure of relevant material to Mr Al Megrahi’s defence team prior to trial. This prejudiced the defence in their preparation and conduct of the trial to such an extent that the Commission have concluded that this may have given rise to a miscarriage of justice.

The Commission conclude that there should have been disclosure to the defence regarding:

* Information contained in the precognition statement provided by Mr Gauci to the Crown.
*A statement given by Sergeant Bussutil and a confidential police report regarding Mr Gauci’s exposure to photographs in a magazine prior to attending an identification parade.
*Reward monies paid to Mr Gauci and his brother. Documents have claimed that Scottish police officers and FBI agents had discussed as early as September 1989 ‘an offer of unlimited money to the Maltese shop keeper Tony Gauci.

Various reports have claimed that Tony Gauci received more than $2m in reward-money.

The Commission concluded that, when applying the Article 6 test regarding a fair trial under the ECHR, the failure by the Crown to disclose information regarding the photographs which had been viewed by Mr Gauci and the information on reward monies paid to the Gaucis, that a miscarriage of justice may have occurred.

Consent to disclose Information:

We are disappointed that the Scottish Government, the UK Government, the United States and other foreign governments have refused consent to disclose matters which at this time remain redacted in papers disclosed to us.

We have requested that the Lord Advocate abide by his duty to make full disclosure, but also insist that the UK Government do not retain a Public Interest Immunity Certificate thus concealing important information from the appellant’s legal team some 31 years after the actual bombing.

For the Megrahi family and many of the British families of the victims supporting the appeal, there is finally hope on what has been a long journey for truth and justice.


For further background please refer to:-

https://www.bbc.com/news/uk-scotland-south-scotland-51816857 (Lockerbie Appeal Bid Allowed)
https://www.bbc.co.uk/news/uk-scotland-south-scotland-43987079 (Lockerbie bomber's conviction to be reviewed)
https://www.dailyrecord.co.uk/news/politics/lockerbie-bombing-appeal-against-abdelbaset-22133295  (Lockerbie bombing: Appeal against Abdelbaset al-Megrahi's conviction lodged at High Court)
https://www.aljazeera.com/indepth/features/ghosts-lockerbie-stirred-prospect-posthumous-appeal-200316165937575.html
https://www.bloomberg.com/news/articles/2020-03-11/lockerbie-bomber-s-conviction-can-be-appealed-again-panel-finds
https://www.news24.com/news24/world/news/scottish-review-body-refers-lockerbie-bomber-case-for-appeal-20200311
http://www.heraldscotland.com/news/home-news/lockerbie-exclusive-we-publish-the-report-that-could-have-cleared-megrahi.2012036248
http://lockerbiecase.blogspot.co.uk/2012/03/today-sunday-herald-publishes-behind.html 
http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/10688067/Lockerbie-bombing-was-work-of-Iran-not-Libya-says-former-spy.html

Wednesday, 19 August 2020

Procedural hearing in the Megrahi family appeal

[What follows is excerpted from a report published today on the website of The Herald:]

Lawyers representing the family of Abdelbaset al-Megrahi, the Libyan man jailed for the 1988 Lockerbie bombing, are to begin a fight against his conviction on Friday - with a call for better transparency.

Megrahi, who died in 2012, was the only person convicted for the bombing which killed 243 passengers and 16 crew on Pan Am Flight 103 as it travelled from London to New York. Eleven people on the ground in Lockerbie also lost their lives in what was the biggest terrorist attack on British soil. (...)

Now an appeal is being started after a Scottish commission ruled a miscarriage of justice may have occurred.

On Friday a procedural hearing in an appeal against conviction will start presided over by Scotland’s most senior judge the Lord President – Lord Carloway along with the Lord Justice Clerk-Lady Dorian and Lord Menzies.

The hearing will take place by means of WEBEX, a video conferencing online application.

The judges will appear on screen and appeal legal team will appear from a facility in Glasgow.

Appeal lawyer Aamer Anwar (below)  on behalf of the family of the late Al-Megrahi said they need to move the court to consider granting authority to see certain "important" documents "over which public interest immunity is asserted".

He said: "Our argument is that public interest immunity certificate is not everlasting, it has been 31 years since the bombing and the UK Government represented by the Advocate General should justify why it is still asserting PII and denying full disclosure of this information to our team."

He added: "We are disappointed that the Scottish Government, the UK Government, the United States and other foreign governments have refused consent to disclose matters which at this time remain redacted in papers disclosed to us."

Mr Anwar has said the grounds for the family’s appeal were “substantial”. (...)

The Scottish Criminal cases review commission in March issued a 419-page decision saying that “further information” provided grounds for appeal.

The commission cited an “unreasonable verdict” and “non-disclosure” in the handling of the case. (...)

Mr Anwar's office says that it is widely claimed that the Lockerbie bombing was ordered by Iran and carried out by a Syrian based terrorist group in retaliation for a US Navy strike on an Iranian Airbus six months earlier, in which 290 people died.

Mr Anwar said: "The reputation of the Scottish criminal justice system has suffered badly both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi; he was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.

"A reversal of the verdict would have meant 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."

He said the Appeal Court in a judgment in July 2015, ruled that the relatives of Lockerbie bombing victims would not be allowed to pursue an appeal on behalf of the only man convicted of the crime.

The families did not give up and in July 2017 a further application was lodged with the Commission on behalf of the Al-Megrahi family.

"There can be never be a time limit on justice, the families who support this appeal have never given up their search for the truth," said Mr Anwar. "On March 11th 2020, the Scottish Criminal Cases Review Commission decided that Mr Megrahi’s case should be referred to the High Court for the determination.

Magrahi's legal team  submitted "serious allegations" of the failure of the Crown to disclose evidence which Mr Anwar's team say have been key to the defence and "interfered with the right to a fair trial".

Mr Anwar's team said the Crown "failed in its duty of disclosure" of relevant material to Mr Al Megrahi’s defence team prior to trial.

"This prejudiced the defence in their preparation and conduct of the trial to such an extent that the Commission have concluded that this may have given rise to a miscarriage of justice," they said.

[RB: In a blogpost on 13 August 2020 I speculated that the document being sought was the one in respect of which Foreign Secretary David Miliband had previously granted a public interest immunity certificate. It appears that I was right.]

Thursday, 13 August 2020

Preliminary procedural matters in Megrahi appeal

The criminal court rolls for the week beginning 17 August 2020 have just been published.  The appeal brought by the family of the late Abdelbaset al-Megrahi features twice, in the following terms:

HIGH COURT OF JUSTICIARY
1st APPEAL COURT - 5 JUDGES - CRIMINAL APPEAL ROLL
under THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
A SITTING will be held on
FRIDAY 21ST AUGUST 2020
at Ten o’clock forenoon, for the disposal of the following:
PROCEDURAL HEARING IN AN APPEAL AGAINST CONVICTION
FOLLOWING UPON THE APPLICATION FROM THE SCCRC

1. Abdelbaset Ali Mohmed   John Pryde & Co,   HCA/2020 - 5/XM
Al Megrahi                           Edinburgh
(Other)  
***

HIGH COURT OF JUSTICIARY
1st APPEAL COURT - CRIMINAL APPEAL ROLL
under THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
A SITTING will be held on
FRIDAY 21ST AUGUST 2020
at Ten o’clock forenoon, for the disposal of the following:
APPLICATION FOR COMMISSION AND DILIGENCE FOR RECOVERY OF
DOCUMENTS

1. Abdelbaset Ali Mohmed    John Pryde & Co,   HCA/2020 - 5/XM
Al Megrahi                            Edinburgh
(Other) 
***

John Pryde & Co are Edinburgh solicitors acting as agents for the Glasgow-based solicitors for the Megrahi family, Aamer Anwar & CoAs previously announced, the proceedings will be conducted via video link.  

Under the first item on the roll, the court will probably seek to ascertain how far advanced is the preparation of the cases of both the appellant and the Crown; when the full appeal hearing can realistically be expected to start; and how long that hearing is estimated to last.  The second item on the roll is an application by the Megrahi legal team for documents to be made available to them that they claim are necessary to enable them properly to present the appeal. I do not know what documents are being sought, but they may well include the document in respect of which the UK Government has previously asserted public interest immunity.

Monday, 10 August 2020

The late Anthony Lester QC and Lockerbie

The death has been announced of Lord Lester of Herne Hill QC (Anthony Lester). He was among the substantial number of distinguished English lawyers who refused to accept the justice of the conviction of Abdelbaset al-Megrahi. Here is what he wrote in a letter to The Times on 23 May 2012:

I acted for Abdul Baset al-Megrahi in his unsuccessful application to the European Court of Human Rights complaining of a breach of his right to a fair criminal trial. I did not appear in the Scottish proceedings, but, after reviewing all the transcripts and judgments, I came to the conclusion that there had been a serious miscarriage of justice.

When I met al-Megrahi in HMP Barlinnie, I asked him whether he thought the Libyan government would stand by him. He replied, “they ought to do so but I am not sure whether they will”.

He told me what it had been like in Tripoli when sanctions had been imposed to secure his extradition to face trial. He said that in the midst of a huge media campaign his mother had asked him if he had any more bombs in his possession. He said he realised that if even his own mother believed he was guilty it was unlikely that he would have a fair trial.

It is regrettable that, despite the concerns expressed by the Scottish Criminal Cases Review Commission, after a three-year examination of the evidence, he was persuaded to abandon his further appeal before being released and returned to die in Libya.

In my view, he was not the perpetrator of the barbaric Lockerbie atrocity.

Lord Lester's comments on the case in a debate in the House of Lords on 12 October 2009 can be read here.

Friday, 17 July 2020

CIA resort to psychics during Lockerbie investigation

[What follows is excerpted from a report in today's edition of The Sun:]

Incredible evidence has emerged of the extent that American CIA agents have kept tabs on Scotland.

Declassified documents range from paranormal research to political intrigue (...)

An offshoot of the Stargate programme was project Sun Streak - which tried to tackle the Lockerbie bombing in unorthodox fashion.

Pan Am Flight 103 was brought down over the Scottish village by the device on December 21, 1988, killing all 259 passengers and crew on board and a further 11 people on the ground.

By 1990, the investigation was still ongoing and it would be another year until Libyans Abdelbaset al-Megrahi and Al Amin Khalifa Fhimah were indicted.

On June 7 of that year at an unknown location, a psychic was tasked with describing a photo of the reconstructed baggage carrier which held the plane’s bomb.

Filed under “special access required”, the notes are headed: “Warning notice: Intelligence sources and methods involved.”

Sun Streak’s mission was to collect intelligence information through ‘psychoenergetics’ - including telepathy.

The Lockerbie test produced 22 pages of scrawled notes and sketches and a typed up account of the session.

Notes state: “There is a bomb in the box and it explodes.

“It makes me think of a bomb blowing up a person. I can see red, fire and jagged flames. Something about the target makes my eyes burn.”

[RB: Exactly the same article also appears today on the Daily Record website. The story has featured several times over the years on this blog.]

Tuesday, 7 July 2020

Thirteen years of Crown obstruction and obfuscation

This blog is thirteen years old today.

I started the blog in 2007 just after the Scottish Criminal Cases Review Commission had referred Abdelbaset Megrahi’s conviction back to the High Court of Justiciary for a further appeal. It seemed to me that a commentary on the appeal process would be of some value. My expectation was that, even allowing for the law’s notorious delays, the blog would not be needed for longer than two years -- or two-and-a-half at the outside. Foolishly, of course, I gravely underestimated the Crown Office’s ingenuity in delaying proceedings (with the connivance or condonation of the appeal judges) and the obstructiveness of the then UK Government in the persons of the Foreign Secretary, David Miliband, and the Advocate General for Scotland, Lord Davidson of Glen Clova QC. The result was that the appeal hearing had only barely got into its stride when Megrahi’s illness led to his abandoning the appeal and being released on compassionate grounds in August 2009. So the Megrahi case lingers on, as does this blog. Perhaps the appeal resulting from the current SCCRC reference back to the High Court will enable the case and this blog to be decently buried. But don’t expect it to be anytime soon.

The first item to appear on this blog was the text of an article published by me in a legal journal: Lockerbie: A satisfactory process but a flawed result. What follows is the second item published in the blog on the same day.

The SCCRC Decision

On 28 June 2007 the Scottish Criminal Cases Review Commission referred Abdel Basset Al-Megrahi’s conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, to the Crown and to the High Court) extends to over 800 pages, accompanied by thirteen volumes of appendices. The Commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate that there were six grounds upon which it had concluded that a miscarriage of justice might have occurred. Strangely enough, however, only four of these grounds are enumerated in the summary. They are as follows:

“A number of the submissions made on behalf of the applicant challenged the reasonableness of the trial court's verdict, based on the legal test contained in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Commission rejected the vast majority of those submissions. However, in examining one of the grounds, the Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.

“New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in thearea of Sliema in which Mary's House is situated. In the Commission's view,taken together with Mr Gauci's evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.

“Additional evidence, not made available to the defence, which indicates that four days prior to the identification parade at which Mr Gauci picked out the applicant, he saw a photograph of the applicant in a magazine article linking him to the bombing. In the Commission's view evidence of Mr Gauci's exposure to this photograph in such close proximity to the parade undermines the reliability of his identification of the applicant at that time and at the trial itself.

“Other evidence, not made available to the defence, which the Commission believes may further undermine Mr Gauci's identification of the applicant as the purchaser and the trial court's finding as to the date of purchase.”


The implications for the verdict of guilty

The reasons given by the Commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence.    The prima facie miscarriage of justice identified by the Commission includes the trial court’s finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser.  This was the very cornerstone of the Crown’s case against him.  If, as suggested by the Commission, that finding in fact had no reasonable basis in the evidence, then there is no legal justification whatsoever for his conviction by the trial court.


The implications for the Scottish criminal justice system

The present writer has always contended that no reasonable tribunal could have convicted Megrahi on the evidence led at the trial.  Here is just one example of the trial court’s idiosyncratic approach to the evidence.  Many more could be provided.

A vitally important issue was the date on which the goods that surrounded the bomb were purchased in a shop in Malta.  There were only two live possibilities:  7 December 1988, a date when Megrahi was proved to be on Malta and 23 November 1988 when he was not. In an attempt to establish just which of these dates was the correct one, the weather conditions in Sliema on these two days were explored. The shopkeeper’s evidence was that when the purchaser left his shop it was raining so heavily that his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi.  The unchallenged meteorological evidence led by the defence established that while it had rained on 23 November at the relevant time, it was unlikely that it had rained at all on 7 December; and if there had been any rain, it would have been at most a few drops, insufficient to wet the ground.  On this material, the judges found in fact that the clothes were purchased on 7 December.

On evidence as weak as this how was it possible for the trial court to find him guilty?  And how was it possible for the Criminal Appeal Court to fail to overturn that conviction?  The Criminal Appeal Court dismissed Megrahi’s appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court’s factual findings at all (though it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence).

It is submitted that at least part of the answer lies in the history of the Scottish legal and judicial system.  For centuries judges have accorded a specially privileged status to the Lord Advocate.  It has been unquestioningly accepted that, though a political appointee and the government’s (now the Scottish Executive’s) chief legal adviser, he (now, of course, she) would at all times, in his capacity as head of the prosecution system, act independently and without concern for political considerations and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction.  This judicial vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court Judges (and sheriffs) were nominated for appointment to the Bench by the Lord Advocate of the day.  This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism -- indeed casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction. To illustrate this in the context of the Lockerbie trial it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the United States under a witness protection programme.

Giaka’s evidence was ultimately found by the court to be utterly unworthy of belief. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony. Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been immensely more difficult and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables.

At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC,  stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.

Mr Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid… On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

One of the judges, Lord Coulsfield, then intervened: "Does that include, Lord Advocate ... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied:  “Well, I'm just checking with the counsel who made that...  there is nothing within the -- -- there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters."

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety.  Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

Beyond the Lockerbie trial, the failure of the Crown to place the public interest in a fair trial above the interest of the prosecution in obtaining convictions is illustrated by the extent to which the Lord Advocate has recently had to be dragged, kicking and screaming, through the Privy Council in London before making available to the defence material in the prosecution’s possession that no-one could conceivably deny was of relevance and assistance in the accused person’s defence: see Holland v HMA 2005 SCCR 417;  Sinclair v HMA 2005 SCCR 446. So much for the fairness of the trial being the Crown’s primary and predominant motivation!

“When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.” I Corinthians xiii.11. It is high time for all involved in the Scottish criminal justice system to put away childish things. All of us, judges included, are surely too old to believe any longer in fairy tales. Fairy tales can be convenient and comforting and can bolster our self esteem. But, as in the case of the belief that the Crown can uniformly be relied upon always to act selflessly in the public interest, they can be dangerous and, if acted upon, work terrible injustice.

It is submitted that the Lockerbie case demonstrates just how necessary it is, if public confidence is to be maintained, for the Scottish Executive to institute a high-powered, independent, investigation into all three aspects – investigation, prosecution and adjudication -- of the Scottish criminal justice system.

Monday, 29 June 2020

Missing witnesses

[On this date in 2000 the Lockerbie trial was adjourned for two weeks. This adjournment had proved necessary largely because of difficulties encountered by the Crown in inducing witnesses (particularly from Malta) to attend at Camp Zeist to give evidence.  During the break in court proceedings I wrote a number of articles for The Lockerbie Trial website, curated by Ian Ferguson and me. Here are two of them:]



When the trial resumes at Camp Zeist on Tuesday 11 July 2000, it will be the thirty-first day of evidence.  Many witnesses have been called into the box to testify, a substantial number of them regarding matters not disputed by the defence and in respect of which it might have been thought that agreement could have been reached between prosecution and defence to obviate the necessity of their attendance.  But if some of the witnesses have seemed to the outside observer to be superfluous, it is equally the case that persons whose presence as witnesses might have been expected, have been conspicuous by their absence.

Prominent amongst these is John Orr who, as a Detective Chief Superintendent and Joint Head of Strathclyde CID and latterly as Deputy Chief Constable of Dumfries and Galloway, headed the Scottish police investigation into the Lockerbie disaster.  In a normal Scottish murder trial the officer in charge of the police investigation team is usually one of the earliest witnesses to be summoned to give evidence.  The absence of Mr Orr, who is now Chief Constable of Strathclyde, from the ranks of police witnesses at the proceedings at Zeist has caused a number of raised eyebrows. 

Other absentees are Oliver "Buck" Revell and Vincent Cannistraro.

Revell was the chief FBI agent assigned to the Lockerbie investigation.  In The Oklahoma City Bombing and the Politics of Terror by David Hoffman (1998, Feral House, Venice CA) he is described as Associate Deputy Director of the FBI and as the FBI counter-terrorism chief.  His son had been booked as a passenger on Pan Am 103, but switched to another flight some time before the plane departed. Cannistraro was the chief CIA operative assigned to the Lockerbie investigation.  In Libya: The Struggle For Survival by Geoff Simons (2nd edition, 1996, Macmillan, London) he is described as "the head of the CIA's counter-terrorism centre who led the American investigation into the bombing" and in The Oklahoma City Bombing he is described as a "CIA intelligence advisor to the National Security Council."  Both of these men are now retired, and in the years since November 1991 when the two Libyans were first accused of the atrocity, have been far from reticent in making known their views on the subject of Lockerbie in the media.  It is a pity that the Crown has not seen fit to call upon them to share with the Court, from the witness box, their very great knowledge of the Lockerbie affair.

Members of the defence team asked Mr Cannistraro to meet them for the purpose of precognition (the Scottish equivalent of taking a pre-trial deposition), but he refused to do so. 

In Scotland, there is a legal duty upon citizens to make themselves available for precognition by both the prosecution and the defence.  As one of Scotland's most distinguished criminal judges, Lord Justice Clerk MacDonald, said: "I consider it to be the duty of every true citizen to give such information to the Crown as he may be asked to give in reference to the case in which he is to be called; and also that every witness who is to be called for the Crown should give similar information to the prisoner's legal advisers, if he is called upon and asked what he is going to say....  I have been asked to express my view, and it is that every good citizen should give his aid, either to the Crown or to the defence, in every case where the interests of the public in the punishment of crime, or the interests of a prisoner charged with crime, call for ascertainment of facts."

But none of this seems to cut any ice with Mr Cannistraro.



Courts of law in general have powers of compulsion only in respect of persons who are physically present within their territorial jurisdiction.  Amongst other things, this means that only such persons can be compelled to attend and give evidence before them.  This limitation on its coercive powers is not something which is unique to the Scottish Court sitting at Camp Zeist in the Netherlands or to Scottish courts in general.  It would have applied equally if the Lockerbie trial had been held in a court in, for example, the United States of America.

A number of Maltese witnesses, mainly persons employed or formerly employed at Luqa Airport, have refused to attend to give evidence at Camp Zeist, and because of this the prosecution have been compelled to seek (and have been granted) yet another adjournment to enable them to secure the attendance of other witnesses.

The refusal of the Maltese witnesses to attend does not mean that their evidence is necessarily lost to the Court.  It is open to the Scottish Court by Letter of Request to seek the assistance of the appropriate Maltese judicial authorities in obtaining, if necessary compulsorily, the testimony of the witnesses in question.  This might involve either the witnesses giving evidence from Malta by means of a live television link to the courtroom at Zeist or the witnesses being examined before a magistrate or judge sitting in Malta and a transcript of their evidence then being supplied to the Scottish Court.  These procedures are competent in a Scottish criminal court by virtue of the Criminal Justice (International Co-operation) Act 1990, section 3, and the Criminal Procedure (Scotland) Act 1995, sections 272 and 273.

As a last resort, the Crown, if able to satisfy the Court that it was not reasonably practicable to secure the attendance of the witnesses at the trial or to obtain their evidence in any of the ways mentioned above, and notwithstanding the general prohibition on the use of hearsay evidence in criminal proceedings, would be able to use as evidence any statement made by the witnesses in question, e.g. to police or other investigators, in the course of the Lockerbie investigation.  This is provided for under section 259 of the 1995 Act.  It does, of course, affect the weight likely to be accorded to the evidence that it is not given by the witness personally in court and is not subject to cross-examination.

If the Crown are having difficulty in securing witnesses to appear before the Court, and their need to request an adjournment when these Maltese witnesses (whose reluctance to attend has been known for months) balked at appearing seems to suggest that they are, perhaps they should reconsider their apparent decision not to call Chief Constable John Orr, Oliver "Buck" Revell and Vincent Cannistraro.

Just a suggestion.