Hans Köchler and Lockerbie

I am grateful to Robbie the Pict for drawing my attention to an article by Nicola Barry on the work of Professor Hans Köchler, particularly in relation to Lockerbie, in the Scottish edition of the Sunday Express on 28 September. The article does not appear to be available online, and so I reproduce it here. Click on the image and it will become legible.

Eurojustice conference in Edinburgh

Legal professionals from around Europe will arrive in Edinburgh this week when the city and the Crown Office and Procurator Fiscal Service - Scotland's Prosecution Service - plays host for the first time to the annual Eurojustice conference.

Held over two days and delivered in both French and English, this year's conference brings together top prosecutors from 28 countries in the European Union and European Economic Area and representatives of key European and international institutions, providing an opportunity to discuss issues relating to European criminal law policy, management and best practice in prosecution.

The 11th annual conference will focus on two themes -

* prosecutors' roles in securing public confidence in the criminal justice system
* development of Information Communications Technology.

Lord Advocate Elish Angiolini QC will welcome over 70 delegates to the conference at a reception at Edinburgh Castle today.

Mrs Angiolini said:

"The annual Eurojustice conference provides an excellent opportunity for senior prosecutors from across Europe to discuss current issues facing the criminal justice system on a European stage and I am delighted that this year's conference is being held here in Edinburgh and, indeed, for the first time in the United Kingdom.

"I am particularly pleased that one of the main themes this year is securing public confidence in the criminal justice system. It is vital that the principle that justice is seen to be done is at the very heart of our work and that we, as prosecutors, recognise our role in ensuring that the public have the greatest measure of confidence in the criminal justice system."

[From a Scottish Government press release dated 29 September 2008. Perhaps Mrs Angiolini should address the delegates on how Scottish prosecutors' conduct before, during and after the Lockerbie trial contributed, and continues to contribute, to ensuring that the public have the greatest measure of confidence in the criminal justice system. That would be a fascinating session.]

The Maltese shopkeeper

Part 82 of Dr Ludwig de Braeckeleer's series "Diary of a vengeance foretold" on the events leading up to the destruction of Pan Am 103 tells the story of Tony Gauci's part in the Lockerbie investigation and trial. It also explores the related question of payments by the US authorities to witnesses.

The full article can be read here.

Lockerbie rage over Libya invite

This is the headline over a story in today's Sunday Express. The first few paragraphs read:

'Families of the Lockerbie victims were outraged yesterday after it emerged Libya has been invited to a UK energy summit two days before the 20th anniversary of the atrocity.

'The Foreign Office confirmed the summit will take place, in London, on December 19, as relatives prepare to remember their loved ones.

'Downing Street refused to confirm if Libyan leader Colonel Gadaffi would attend, though it is understood he has been invited as part of the continuing efforts to thaw relations with Tripoli.'

Dr Jim Swire is quoted as describing the timing of the meeting as "highly insensitive".

The only relative who expresses anything that might be described as even approaching "rage" is, of course, Susan Cohen.

The full article is available here.

Remembering Lockerbie

This is the title of a blog that I have just recently discovered. It is a memorial to the 270 people who died in the Lockerbie disaster. It can be found here.

Scottish Parliament to legislate on PII and disclosure

It has been announced by the Scottish Government that its forthcoming Criminal Justice and Licensing Bill will include new rules on the disclosure of evidence. It is to be expected that the new measures will follow the recommendations in the Coulsfield Report. Paragraphs 6.12 to 6.40 of that report contain Lord Coulsfield's consideration of the issue of disclosure of sensitive material, public interest immunity (PII) and "special counsel".

It is not without a measure of irony that the report is the work of one of the judges at the Lockerbie trial in the Scottish Court at Zeist; and that lack of Crown disclosure of material that might have assisted the defence is one of the principal grounds on which the Scottish Criminal Cases Review Commission decided that Mr Megrahi's conviction might have been a miscarriage of justice.

US lawmakers block ambassador to Libya over fund

Reuters reports that the confirmation of the United States ambassador to Libya has been blocked in the Senate until the last payment of compensation is actually made to the relatives of those killed at Lockerbie. The report reads in part:

'On Wednesday, U.S. Sen. Frank Lautenberg of New Jersey put on hold the nomination of diplomat Gene Cretz to become Washington's envoy to Libya until American victims were paid from a fund agreed on last month by both countries.

'"Libya has not yet satisfied its obligations to U.S. victims of its terrorist acts and I will object to this nomination's moving forward until those victims receive justice," said Lautenberg, a Democrat.(...)

'Appointing a U.S. ambassador was seen as one of the rewards for Libya giving up its weapons of mass destruction program in 2003, which led to a warming of ties between the former foes.

'Relatives of the Pan Am victims welcomed the Senate foreign relations committee's decision.

'"The committee's action ... has sent an unequivocal message to the administration and Libya that the Senate will not appoint a U.S. ambassador until Libya has fulfilled the agreement," said a statement from a group of families.'

The full report can be read here. I am grateful to Big David for drawing this story to my attention.

Professor Köchler on PII

Statement by Professor Hans Köchler following his visit to Scotland last week:

'The UN-appointed international observer at the Lockerbie trial in the Netherlands, Dr Hans Koechler, revealed in an interview with the BBC's Reevel Alderson on 17 September that the judges dealing with the new appeal of the only convicted suspect in the Lockerbie case, the Libyan citizen Abdelbasset Ali Mohmed Al Megrahi, have ruled that special counsel should be appointed for the Appellant in regard to the material covered by the Foreign Secretary's Public Interest Immunity (PII) certificate. This was communicated in a letter to a member of the House of Commons, dated 4 September 2008 and signed on behalf of the Minister of State Kim Howells. The respective paragraph at the end of the letter reads as follows:

'"The UK government has made clear its commitment to work closely with the Court to ensure that Mr. Megrahi receives a fair trial and that sensitive material is handled appropriately. To this end the court ruled on 19 August that special counsel should be appointed to assist the court and safeguard Mr Megrahi's interests in relation to this issue. Once appointed, the special counsel will be provided with a confidential summary of the submissions made by the Advocate General at the last hearing. The UK government supports this ruling in the interests of ensuring the trial is fair."

'It is to be noted that the above letter was in reply to a letter the member of the House of Commons had written earlier (13 August 2008) to the Foreign Secretary, stating that he was "deeply concerned if the statement by Dr Koechler in the attached letter is correct and vital 'exculpatory material' is being withheld from Mr Al-Megrahi's defence team." The member of the House of Commons refers to a letter by Dr Koechler, dated 21 July 2008, to the Foreign Secretary. It is further to be noted that Dr Koechler received an almost identical letter of reply from the Foreign Office (dated 27 August)- with the exception of the three sentences marked in bold in the above quotation.

'The UN-appointed international observer has visited Scotland from 11 to 19 September on a fact-finding mission aimed at assessing the reasons for the long delay of the new Lockerbie appeal. (In June 2007, after investigations that lasted several years, the Scottish Criminal Cases Review Commission had referred the convicted Libyan national's case back to the High Court of Justiciary.)

'In the course of his visit, Dr Koechler has participated in consultations held on 15/16 September at Greshornish House on the Isle of Skye. The meeting was convened at the invitation of the Lockerbie Justice Group, headed by Mr Robbie the Pict, and included Prof. Robert Black, the "architect" of the Lockerbie trial in the Netherlands. Under the motto Quid nunc, Scotia? the participants were asked to consider questions in regard to the fairness and impartiality of the Lockerbie proceedings in the Netherlands and eventual new appeal proceedings in Scotland and to reflect on the lessons to be learned for the handling of any such case in the future.

'Dr Koechler further held consultations at the House of the Binns with Mr Tam Dalyell, former member of the House of Commons; with Mr Alex Neil MSP and Mr Ian McKie, father of policewoman Shirley McKie, at the Scottish Parliament; and with members of the Lockerbie Justice Group. On 18 September he delivered a keynote speech on "The Lockerbie Trial and the Rule of Law" at the Law Awards of Scotland 2008, organized by The Firm magazine in association with Registers of Scotland at the Glasgow Hilton Hotel. In a reference to the Public Interest Immunity claimed by the UK government, Dr Koechler said:

'"Whether those in public office like it or not, the Lockerbie trial has become a test case for the criminal justice system of Scotland. At the same time, it has become an exemplary case on a global scale - its handling will demonstrate whether a domestic system of criminal justice can resist the dictates of international power politics or simply becomes dysfunctional as soon as 'supreme state interests' interfere with the imperatives of justice. (...) The fairness of judicial proceedings is undoubtedly a supreme and permanent public interest. If the rule of law is to be upheld, the requirements of the administration of justice may have to take precedence over public interests of a secondary order - such as a state's momentary foreign policy considerations or commercial and trade interests. The internal stability and international legitimacy of a polity in the long term depend on whether it is able to ensure the supremacy of the law over considerations of power and convenience."

'Dr Koechler's address was followed by enthusiastic applause from an audience of over 600 attendants representing Scotland's legal profession and was commented on by the subsequent keynote speaker, Sir Menzies Campbell CBE QC, former Leader of the United Kingdom's Liberal Democrats.

'In an exclusive interview for the German-French TV channel ARTE, conducted in Edinburgh, and in all public meetings and consultations in Scotland Dr Koechler reiterated his call for a full public inquiry into the causes of the mid-air explosion of PanAm flight 103 over the Scottish town of Lockerbie and the handling of the case by the Scottish judiciary and the Scottish as well as the British executive.'

Swire endorses Skye accord and joins call for international inquiry

This is the heading over an article on the website of the Scottish lawyers' magazine The Firm. It reads in part:

'Dr Jim Swire has hit out at the intrusion of the Foreign and Commonwealth Office into the administration of the Scottish Courts' handling of the Megrahi appeal, the procedural aspects of which are presently going through the High Court....

'"The acceptance of a Westminster-appointed and paid adjudicator, to dictate what parts of a document, already known in full to the prosecution, should now be allowed to be seen by the defence, hardly seems in line with the expressed independence of the Scottish legal system. Nor does it support 'equality of arms' - a supposedly basic tenet of any system claiming to dispense justice."

'"Intrusion of a politically originated 'Pubic Interest Immunity Certificate' in this way would be universally condemned outside that system as compromising its fairness."' 

'"Justice cannot be seen to be being done among the dirty underwear of the F&CO, which can by no means be considered an objective and impartial intruder. The outcome of the Zeist trial was far too politically convenient, and the evidence offered far too suspect for that to be accepted."

'"We would do well to rise up against any attempt by the political elite to interefere in a criminal justice system. The public must have confidence that such a system can offer them protection when justified, even against the actions of their own government."

'"As Prof Koechler says, if their Lordships have made this decision, then an inquiry within Scotland and also by the United Nations internationally must be set up."

'"The suspicion that political aims have interfered with this case is not of course limited to the current question over this document and the PII certificate, it pervades many aspects of the Zeist trial itself and the first appeal held there, not least the presence of FBI/CIA operatives within the prosecution bench, as mentioned by Prof Koechler."'

The full article can be read here.

Private Eye on The Conspiracy Files: Lockerbie

The current issue of Private Eye features an article entitled "Lockerbie: What Price Justice?" It reads in part:

'In BBC2’s recent Conspiracy Files documentary about the blowing-up of Pan Am flight 103 over Lockerbie, Richard Marquise, the FBI agent who headed the US side of the investigation 20 years ago, emphatically denied that any reward money had been paid to witnesses.

'In reply to a claim by Edwin Bollier, the boss of a Swiss company said to have manufactured the timing device used in the bomb, that he had been offered money by the FBI, Marquise said: "I can promise you we offered everyone who was involved in the case the exact same – nothing. They were never offered anything for their testimony, for their information concerning this case."

'Clearly this was a case of the left hand of American Law enforcement not knowing what the right was up to because Majid Giaka, the "star" witness at the trial of the two Libyans originally accused of the bombing, was handsomely rewarded by the CIA... [The Lockerbie] judges agreed that Giaka's evidence - that he saw the pair with a large brown case at Luqa, the Maltese airport - was "at best grossly exaggerated and at worst untrue", and "largely motivated by financial considerations".

'[The judges] relied on the only other evidence that incriminated Megrahi: his identification 11 years after the event by Tony Gauci, the Maltese shopkeeper who said he sold him the 13 items of clothing that were packed around the bomb. But Gauci had seen a picture of Megrahi only a few days before he made the crucial identification. This too was withheld from the original trial.

'Inconsistencies and doubts surrounding Gauci's identification now form one of the six grounds outlined by the Scottish Criminal Cases Review Commission (SCCRC) for concluding Megrahi may be the victim of a miscarriage of justice. There were unconfirmed reports that part of the concerns outlined in the confidential 80-page SCCRC submission were that Gauci too was paid a large amount of CIA "compensation".

'And for final confirmation that the Americans paid out money, the 'Reward for Justice' website of the US state department outlines the Lockerbie case. It says it has "paid more than $72m to over 50 people who have provided information that prevented international terrorist attacks or brought to justice those involved in prior acts."'

Hospital visit for Megrahi

The Sun reports that Abdelbaset Megrahi today has an appointment at Inverclyde Royal Hospital. This apparently involves a major security operation. The full story can be read here and the aangirfan blog's concerns here.

The report in The Times can be read here. It contains the following paragraphs:

'This week it emerged that the Appeal Court in Edinburgh had decided to appoint a special defender to view confidential documents believed to contain information about the electronic timer used to detonate the aircraft.

'The court's decision came after an unprecendented hearing behind closed doors during which the UK Government argued that the documents should remain secret to avoid compromising security. David Miliband, the Foreign Secretary, claimed that handing over the documents would put national security at risk.

'It will be the first time that a special defender has been used in a Scottish court, although the process has been used in English courts during terrorism cases. Lord Hamilton, the Lord President [sic; should read "the Lord Justice General"], sat with Lords Kingarth and Eassie last month to decide whether al-Megrahi can obtain a fair trial without access to the documents.

'The Advocate General, Lord Davidson of Glen Clova, who represents the UK Government in the Scottish courts, asked the court to appoint a security-vetted lawyer to look at the documents on behalf of al-Megrahi's defence team before arguing which parts of the documents should be published.

'The final decision on the release of sections of the document would lie with judges. The court has not yet formally published its decision but Kim Howells, the Foreign Office Minister, has written a letter confirming that the court has decided to appoint a special defender.

'It is understood that al-Megrahi's legal team is planning to appeal against the decision to the Privy Council on the ground that the move would violate his human rights.

'Dr Hans Koechler, the United Nations special envoy to the trial in the Netherlands of the two Libyans accused of the Lockerbie bombing, criticised the development as “intolerable”. Dr Koechler said that it was “detrimental to the rule of law”.'

The Daily Mail has a long article with photographs, concentrating principally on the security arrangements and the cost of the visit. It also has quotes from Susan Cohen, the lazy tabloid journalist's first port of call for some juicy inflammatory copy. Why do UK journalists not seek the reactions of UK relatives, rather than the reaction of one specific US relative? The answer, I'm afraid, is clear: controversy sells newspapers and you wouldn't get controversy from UK relatives over medical treatment for Megrahi. Gutter journalism.

Court rules Lockerbie timer details to stay secret

This is the headline over an article by Lucy Adams in The Herald. The story reads in part:

'The Appeal Court in Edinburgh has decided to appoint a special defender to view confidential documents thought to contain vital information about the electronic timer that detonated the Lockerbie bomb.

'The decision follows an unprecedented hearing, held behind closed doors, at which the UK Government argued that revealing the documents would compromise security.

'The advocate general, who represents the UK Government in Scottish courts, asked the court to appoint a security-vetted lawyer who could look at the documents on behalf of the defence team of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing.

'This special defender would then argue which parts of the document should be published - although judges would make the final decision about how much, if anything, should be revealed.

'So far the court has not published its decision, but Foreign Office minister Kim Howells has written a letter confirming that the court has decided to appoint a special defender.

'It will be the first time such a course has been taken in Scotland, although some English courts have appointed special defenders to examine evidence in terrorism cases.

'There has been no official comment from Megrahi's legal team, although it is thought it is planning an appeal to the Privy Council, arguing that the move will violate his human rights.'

The full article can be read here.

[This was posted at 21.43, notwithstanding what appears immediately below.]

More on the PII debacle

The BBC News website has picked up the story about the appointment by the Appeal Court of a special, security-vetted, advocate to view the documents in respect of which the UK Foreign Secretary has asserted public interest immunity. Reevel Alderson writes:

'The Appeal Court in Edinburgh is to appoint a special defender to view confidential documents wanted by the Lockerbie bomber in his appeal.

'It follows an extraordinary hearing held behind closed doors at which the UK government argued that revealing the documents would compromise security....

'The advocate general, who represents the UK government in Scottish courts, asked the court to appoint a security-vetted lawyer who could look at the documents on Megrahi's behalf.

'He would then argue which parts of the document should be published - although judges would make the final decision about how much, if any, should be revealed.

'So far the court has not published its decision, but in a letter seen by BBC Scotland, the Foreign Office minister Kim Howells says it has decided to appoint a special defender....

'Dr Hans Koechler, the United Nations special envoy to the trial in the Netherlands of the two Libyans accused of the Lockerbie bombing, criticised the development as "intolerable".

'In a BBC interview, Dr Koechler said it was "detrimental to the rule of law." He said: "In no country can the situation be allowed where the accused or the appellant is not free to have his own defence team, and instead someone is imposed upon him."'

The full text of the article can be read here.

The website of the Scottish lawyers' magazine The Firm also covers the story, under the headline 'Courts "go Soviet" in Megrahi case'. The article can be read here.

Press conference at Greshornish House

Courtesy of Cuillin FM, you can listen to the press conference held at Greshornish House, Skye, yesterday morning on the occasion of the conclusion of the Greshornish House Accord.

I wish to pay a sincere tribute to Robbie the Pict for organising this meeting and for chairing it so competently. His expertise on constitutional and human rights issues made no small contribution to the success of the occasion.

A closed hearing and an unannounced decision

Has there in fact been a decision by the High Court of Justiciary on the Foreign Secretary’s claim of public interest immunity (PII) in the Lockerbie appeal? It has been suggested to me (from a source claiming that the information came from the UK Foreign and Commonwealth Office) that at the closed hearing that took place on 19 August 2008 the court ordered that a summary of the documents in question (prepared by whom?) should be given to a “special counsel” (with what qualifications, and appointed by whom?) and not to Abdelbaset Megrahi’s chosen legal team.

If this information is accurate, two important questions need to be asked. They are: 1. Is it satisfactory, or tolerable, that such a decision be taken at a court hearing from which the appellant and his legal representatives are excluded? 2. Is it satisfactory, or tolerable, that no opinion is published by the court announcing its decision and explaining the reasons for it?

Press coverage of the Greshornish House Accord

The Scottish daily "heavies" run substantial reports on the Greshornish House accord. The article in The Herald can be read here and that in The Scotsman here. The comments from members of the public are also worth reading. The website of the Scottish lawyers' magazine The Firm also has a lengthy report.

Greshornish House Accord

Invited Consultants –
Dr Hans Koechler, President of the International Progress Organisation (IPO), Vienna.
Prof Robert Black QC, Professor Emeritus of Scots Law, University of Edinburgh.

Convener –
Robbie the Pict, Lockerbie Justice Group.

The participants were invited to reply to four questions put by the Convener in the hope of guidance in the pursuit of proper justice for all in relation to the destruction of PanAm Flight 103 over Lockerbie in December 1988.

The questions asked were answered as follows:

QUESTION 1. Did the Foreign and Commonwealth Office arrangements for a trial at Kamp Zeist deliver an independent and impartial tribunal?

ANSWER 1.
No. We draw attention to five principal defects:

a) It would have enhanced the appearance of independence and impartiality if the Judicial Bench had been composed of Judges from countries other than the United Kingdom with a Scottish Judge in the Chair. This is principally because the case involves the interests of more than one state and the appointment of all the Judges from only one of the concerned states does not meet the required standards of independence and impartiality. The Consultants present today would both have preferred a tribunal wherein a Scottish Judge chaired a panel of Judges from other countries but this was rejected by the relevant UK authorities. It should be kept in mind that there was an ongoing political dispute between the UK and Libya at this time which had led to the severing of diplomatic relations.

b) The presence of American advisers in the well of the Court, later identified to the IPO as FBI agents, having frequent discourse and consultation with the Crown prosecution team contributed to the appearance of outside influence on the conduct of the prosecution. These persons were not identified at any point and their names did not appear on the official brochure which, amongst other things, named the prosecution and defence teams. Concerns were raised in the course of the trial that these persons appeared to be guiding witness responses by facial gestures.

c) We are of the view that if, in an adversarial system, the defence does not properly play its antagonistic role, the interplay of forces is set off-balance. This demands both equality of arms procedurally, and a determined and dedicated wielding of these arms. We draw attention to the new burden placed upon all Judges under Section 6(1) of the Human Rights Act 1998 (HRA) to ensure that there is indeed an equality of arms in their Court.

d) Whilst we accept that circumstantial evidence alone can be sufficient to convict, we are not satisfied that the Court, in its written judgment, adequately explained its reasons for accepting incriminating inferences from that evidence and rejecting or dismissing evidence that supported non-incriminating inferences.

e) We have good reason to suspect that rewards and benefits of a direct or indirect nature have been paid to prosecution witnesses.

QUESTION 2. What should happen now?

ANSWER 2
a) In the event that the Public Interest Immunity (PII) certificate is upheld by the Court and evidence is withheld from the Defence, we consider that this would render the conduct of a fair appeal impossible. We believe that, in actuality and in the public perception, such a denial compromises the principles of a fair hearing, which depends significantly upon equality of arms. In this context we would like to draw attention to the position adopted by the Foreign and Commonwealth Office on this matter, as contained in a letter written to the IPO on 27 August 2008. It reads:

“Under the Human Rights Act 1998 the Court has a duty to act in compliance with Convention rights in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial. The UK Government has made clear its commitment to work closely with the Court to ensure that Mr Megrahi receives a fair trial and that sensitive material is handled appropriately.”

b) In the event that the present appeal proceeds, we recommend the following:
i) That the pending decision by the Appeal Court, regarding the scope of the appeal, be delivered with urgency. Preparation by both the appellant and the Crown is impeded whilst the precise parameters of the appeal remain unsettled. It is clearly desirable that any decision defining those parameters should give reasons for the rejection of any grounds submitted by the appellant.
ii) The phrase ‘the trial and any appeal’ in the Agreement between the Governments of the UK and the Netherlands concerning a Scottish Trial in the Netherlands permits the view that this further appeal should also take place in an international framework; however we consider that unlikely. We urge that the relevant Scottish and UK authorities take such steps as are necessary to secure the presence of international observers at any further appeal hearing.

c) Irrespective of the outcome of the current appeal, there should be a re-investigation of the incident by the Scottish authorities. A further Fatal Accident Inquiry would not be inappropriate given the amount of material that has become available since the original FAI took place. When the restricted scope of an FAI is considered perhaps it would be more appropriate to have a wider-ranging public inquiry.

d) Allegations have been made in the Press and elsewhere of incidences of tampering with evidence material to the case. The Lord Advocate should instruct that these allegations be investigated.

QUESTION 3. If Scotland was charged with managing such an international event in the future, what model is recommended?

ANSWER 3.
a) Although this is a hypothetical question it offers the opportunity to advise the Scottish public of developments since the Lockerbie incident. The UK is a state party to the Rome Statute of the International Criminal Court (ICC). This would mean that such matters could be prosecuted by the International Criminal Court in The Hague.

b) Where, for whatever reason, the ICC cannot be resorted to, the possibility exists of inviting non-Scottish Judges to participate in a Scottish trial. The following are illustrative precedents for such an approach:

i) The Special Court for Sierra Leone, established by agreement between the UN and the Government of Sierra Leone.
ii) The Special Chambers in the Courts of Cambodia.

QUESTION 4. What changes should be considered for the better administration of justice in Scotland?

ANSWER 4.
1. Whilst Scotland retains an adversarial system as opposed to an inquisitorial system, the existence of a real equality of arms is crucial to the delivery of justice. Following the coming into force of the Human Rights Act 1998 (HRA) the responsibility for ensuring a fair trial, which includes equality of arms, lies with the Court itself. Although this judicial obligation is already enshrined in the law, it could usefully be spelled out in an amendment to the Criminal Procedure (Scotland) Act 1995.

2. It is inappropriate that the Chief Legal Adviser to the Government is also head of all criminal prosecutions. Whilst the Lord Advocate and Solicitor General continue as public prosecutors the principle of separation of powers seems compromised. The potential for a conflict of interest always exists. Resolution of these circumstances would entail an amendment of the provisions contained within the Scotland Act 1998.

3. The Criminal Procedure (Scotland) Act 1995 should be amended to oblige the Crown to disclose all prosecution witness statements. The current system, whereby the Crown’s disclosure obligation is met by simply supplying a list of possible Crown witnesses, encourages the fruitless expenditure of defence time, money and effort.

4. The absence of a particular and dedicated Criminal Appeal Court, especially when, unlike in civil matters, there is no further appeal available to a higher Court, renders the appeal system vulnerable to serious criticism.

16 September 2008

Arab League calls for release of Megrahi

The following item appears today on the website of The Tripoli Post:

'According to the Libyan news agency JANA, the Arab League Ministerial Council has reiterated a demand to release the political hostage Libyan national Abd al Basset al Megrahi.

'It also endorsed Libya's right to compensation for the damage sustained as result of the Lockerbie case and the consequent unfair UN sanctions that lasted for about nine years.

'The council renewed in a resolution issued at the end of its 130th session held at the headquarters in Cairo last night a demand for the release of al Megrahi, the Libyan national imprisoned in Scotland in connection with the Lockerbie case, urging the government of the UK to release document requested by al Megrahi's defence before the Scottish Criminal Cases Review Commission.

'The resolution said Britain's refusal to release the document represented a miscarriage of justice.

'Libya was represented at the meeting by the Secretary of Arab Affairs at the General People's Committee of the Foreign Liaison Bureau.'

Skye Gathering

A meeting is to be held on the Isle of Skye on Monday, 15 September 2008 under the auspices of the Lockerbie Justice Group to consider, with full regard to the rule of law, the following four issues:

1: Did the Foreign and Commonwealth Office arrangements for a trial at Kamp Zeist deliver an independent and impartial tribunal?
2: What should happen now in respect of the Lockerbie proceedings?
3: If Scotland was charged with managing such an international event in the future, what model is recommended?
4: What changes should be considered for the better administration of justice in Scotland?

Among those taking part in the discussions will be Professor Hans Köchler, President of the International Progress Organization, one of the observers at the Lockerbie trial appointed by the Secretary General of the United Nations, and myself. A press briefing is to be held on the morning of Tuesday, 16 September.

Professor Köchler has a number of further Lockerbie-related engagements in Scotland on Wednesday 17 and Thursday 18 September.

An anniversary

Today is the fifth anniversary of the removal by the United Nations Security Council of sanctions against Libya over the Lockerbie affair. Thirteen members voted voted in favour; France and the United States of America abstained. The report on BBC News can be read here. The terms of the Libyan "acceptance of responsibility" can be read here.

A strange little tale

A strange item has recently been posted on the ken-finn blog. It asserts that on 28 August 2005, BBC TV on its 7pm news bulletin broadcast a story to the effect that the CIA had admitted planting the MST-13 circuit board fragment at the Lockerbie crash site. No trace of this story could subsequently be found on the BBC News website. Here is the current post from the blog; and here is the post from 2005.

The Lumpert interview

The ITN News at Ten interview with MEBO engineer Ulrich Lumpert (mentioned on this blog on 28 August) can be viewed here.

Accuracy and The Herald

The Herald today has an article headed "Gaddafi 'invited to UK' for first time since Lockerbie" by Michael Settle. It contains the following passage:

'The sole person convicted of the crime, Abdelbaset Ali Mohmed al Megrahi, 56, the former Libyan agent, has been given leave to appeal his life sentence after top secret documents were passed to Britain by a foreign power. He is in Greenock Prison. Five Scottish judges are considering a Crown Office bid to limit the scope of his appeal.'

The last two sentences are correct. The first repeats, in strikingly similar language, the errors committed in yesterday's article in The Independent.

Accuracy and The Independent

The Independent today runs an article by Diplomatic Editor, Anne Penketh, in its series The Big Question. It is headed 'Is the West right to resume friendly relations with Gaddafi's Libya?' It contains the following paragraph:

'What about Lockerbie?

'The Libyan national who is serving a life sentence for the Lockerbie bombing, the former intelligence agent Abdelbaset Ali Mohmed al-Megrahi, has been given leave to appeal his sentence after top secret documents were passed to Britain by a foreign power. Questions remain about who placed the bomb and what was the motivation for blowing up the Pan Am aircraft, which took place five months after the US shot down an Iranian civilian airliner. With conspiracy theories abounding, some now say that Iran masterminded the Lockerbie bombing, while Megrahi's defence lawyers have in the past pointed the finger at a Palestinian group that operated in Germany at the time of the bombing.'

This is, of course, wildly inaccurate. What Megrahi is appealing is his conviction, not his sentence. And his new appeal comes not because top secret documents have been passed to the UK Government, but because the Scottish Criminal Cases Review Commission found that the conviction might have amounted to a miscarriage of justice. One of the six reasons for so finding was that documents from a foreign power, which could have helped the defence and which were already in the hands of the Crown at the time of his trial, were not disclosed to the defence. But by far the most important reason given by the SCCRC was that, on the evidence led at the trial it was strongly arguable that no reasonable court could have properly concluded that Megrahi was the purchaser in Malta of the items that allegedly accompanied the bomb in the brown Samsonite suitcase. This is the crux of the matter and is the real basis upon which Megrahi's new appeal should be allowed.

Megrahi on Al-Jazeera? (continued)

The Sunday Express has an article by Ben Borland which claims to have substantiated the rumour that Abdelbaset Megrahi took part over the telephone in a discussion programme on the Arabic service of Al-Jazeera on 29 August 2008. Megrahi apparently vehemently maintained his innocence, said that he understood the pain of the relatives of those killed at Lockerbie and praised the Scottish Criminal Cases Review Commission for referring his case back for a further appeal on the ground that he might have suffered a miscarriage of justice.

The article contains reaction (horrified, as would be expected from that source) from Susan Cohen, whose daughter was one of those killed on Pan Am 103.

The Scottish Prison Service commented that communication with the media without prior permission is contrary to prison rules, but that there is no evidence of Megrahi's having made anything other than local telephone calls at or about the relevant period.

The full article can be read here.

Other Scottish newspapers have picked up the Sunday Express story and run it (without attribution, of course).

Libyan Nuke Program Was CIA-MI6 Sting Op

This is the heading over an article on OhMyNews International by Dr Ludwig de Braeckeleer in which he expands upon the Mathaba.Net allegations featured in the immediately preceding post on this blog. Founding upon information published on Der Spiegel's website on 13 March 2006, in The Guardian on 27 July 2006, and in The New York Times on 25 August 2008 he contends that the Libyan nuclear programme was a CIA-MI6 sting operation designed to bring down the A Q Khan nuclear mafia.

The article can be read here.

Further developments in this saga are related in an Associated Press article dated 22 January 2009 which can be read here.

From a Libyan source

The following is from an article published today on the website of the Libyan news agency Mathaba.Net:

'Rice began a four-nation tour of North Africa in Tripoli, Libya on Friday, meeting with Libyan leader Moammar Gadhafi and other top officials in what the State Department is calling a landmark trip that will symbolize the opening of a new era in ties between the United States and the oil-rich country of Libya.

'Libya succeeded in obtaining good relations with the USA by making several concessions which included billions of dollars in payments to the USA. The "concessions" included allowing the USA and Britain to lay the blame on Libya for the downing of Pan Am flight 103 over Lockerbie which killed hundreds of people. To this day the real perpetrators of this crime have not been sought, with an innocent Libyan languishing in a Scottish jail.

'It also involved Libya creating a fictitious "nuclear weapons" program, so that some odd looking parts and charts, could be handed over to the USA so as to show that any nation that "give up" its weapons can become a friend of the USA. Needless to say, no program ever existed, and the hiring of Pakistanis and others by Libya was merely designed to give some credence to the plan.

'Furthermore, Libya paid huge "compensation" payments to families of the Lockerbie bombing, agreed to release doctors and nurses who had been found guilty of deliberately infecting children in Libya with AIDS, sharing of intelligence, giving up records and intelligence on the Irish Republican Army and other organizations, and allowing USA to show Libya as an opposite example to Iraq.

'The lessons remain clear for all to see: if you have WMD do not give them up, for you will not be attacked - witness North Korea, China, Russia, India, Pakistan and the Zionist entity. If you do not have WMD, expect to be attacked, unless you are clever enough as Libya to allow a good PR campaign for the US by creating and then giving up a fictitious program.'

US Secretary of State's visit to Libya

The US Secretary of State, Condoleezza Rice, is starting her North African tour today in Libya. Al-Jazeera's English language website has an interesting article on the subject. Here is what it has to say on Lockerbie:

'Rice is also expected to push Gaddafi on a compensation package signed last month.

'No money has been paid into the compensation fund yet but the lead US negotiator with Libya, David Welch, said he was optimistic it would happen soon.

'Libya finalised legalities to set up the fund on Wednesday and one senior US official said it would take "more than days" before enough money was in the account and payments could be made to both sides.

'No details have been given over who will put money into the fund or how much it will amount to but outstanding legal claims could run into billions.

'US victims covered include those who died in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland, which killed 270 people, and the 1986 attack on a Berlin disco that killed three people and wounded 229.

'It should also compensate Libyans killed in 1986 when US aircraft bombed Tripoli and Benghazi, killing 40 people.

'Rice has come under criticism at home for making the trip before the money is paid out.'

The full article can be read here.

Dr Swire's response to Saif-al-Islam Gaddafi

The Bromsgrove Advertiser (the local newspaper for the area in which he used to practise) has an article on Dr Jim Swire's response to the contention by Saif-al-Islam Gaddafi that the relatives of those killed in the Lockerbie disaster were "greedy" in their compensation claims. The article is largely based on the contents of Dr Swire's letter in The Herald on 29 August 2008. The article, which can be read here, erroneously states that Dr Swire now lives in Glasgow. He still lives in England, but spends a considerable amount of time at his house on the Isle of Skye.

Foreign Secretary's response to Professor Köchler

In July Professor Hans Köchler, appointed by the UN Secretary-General as an observer at the Lockerbie trial, wrote a letter to the UK Foreign Secretary about (a) an error on the Foreign Office's website about the Lockerbie trial and (b) about the Foreign Secretary's assertion of public interest immunity in respect of certain documents, the failure to supply which to the defence formed one of the grounds on which the Scottish Criminal Cases Review Commission held that Megrahi's conviction might have amounted to a miscarriage of justice. The Foreign Secretary has now replied to Professor Köchler, whose press release reads as follows:

'Vienna, 1 September 2008/P/RE/20260c-is

'In a letter dated 27 August 2008, the Foreign & Commonwealth Office of the United Kingdom has informed Dr. Hans Koechler, an international observer of the Lockerbie trial appointed by the United Nations, that an erroneous entry about the Lockerbie verdict on the Office's country profile page on Libya has now been corrected. The Foreign Office's web site had wrongly reported that the verdict on the second Libyan suspect in the Lockerbie case, Al Amin Khalifa Fhimah, was "not proven." The information has now been corrected to "not guilty." This is important because one of the main reasons for Dr. Koechler's criticism of the Lockerbie verdict had been its being inconsistent. (While the rationale of the indictment was based on the two Libyan nationals' having conspired together to get a piece of baggage containing a bomb loaded on a plane in Malta, the verdict had declared the first suspect, Mr. Abdelbasset Ali Mohmed Al Megrahi, "guilty" and the second suspect "not guilty" - both of which determinations require proof "beyond a reasonable doubt.")

'On 21 July 2008 Dr. Hans Koechler had alerted David Miliband about the misleading entry and had also expressed his concerns about the public interest immunity (PII) certificate issued earlier by the Foreign Secretary in connection with certain "sensitive" material that has been withheld from the Defence in the Lockerbie case.

'In the above mentioned letter, the Foreign & Commonwealth Office has reiterated the Foreign Secretary's position that release of the material in question "would do real and lasting damage to the UK's relations with other states and the UK's national security." At the same time, the Foreign Office has acknowledged vis-à-vis Dr. Koechler that: "Ultimately, it will be for the Court to decide whether the material should be disclosed, not the Foreign Secretary." In the letter, the Foreign Office furthermore asserted the Scottish Court's being bound by the European Human Rights Convention: "Under the Human Rights Act 1998 the Court has a duty to act in compliance with Convention rights in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial."

'In a statement issued today, Dr. Koechler said that it is now up to the Scottish judges to assert the independence of the Scottish judiciary and ensure that the conditions for a fair trial (second appeal) are scrupulously met (which implies disclosure to the Defence of all evidence that is in the possession of the Prosecution). There is absolutely no doubt that in a country where the rule of law prevails a fair trial is ex definitione in the public interest. Dr. Koechler expressed the hope that the final decision on the disclosure of the "sensitive" material will not be delayed further. The new appeal cannot go ahead without this step.

'Dr. Hans Koechler will visit Scotland next week for discussions on the Lockerbie case.'

[Note by RB: Professor Köchler is mistaken when he says that the trial court's finding of "not guilty" in respect of the co-accused, Lamin Fhimah, required proof beyond a reasonable doubt. For acquittal, whether by a verdict of not guilty or one of not proven, all that is required is that the court is not satisfied that the Crown has proved the accused's guilt beyond reasonable doubt. The court is certainly not required to be satisfied (beyond reasonable doubt or by any other measure) that he is innocent.]

View The Conspiracy Files: Lockerbie programme

I am grateful to a reader of the blog who informs me that the programme is in fact now available for viewing online (at least in the United Kingdom) at http://www.bbc.co.uk/iplayer/episode/b00dc21f/.

According to a report on The Guardian website, 'BBC2's documentary The Conspiracy Files: Lockerbie picked up 2 million viewers and an 8% share [of viewers] in the 9pm hour.'

The Conspiracy Files documentary

I had rashly assumed that The Conspiracy Files: Lockerbie programme would be available today for viewing on the BBC website. This appears, however, not to be the case. Consequently, since I do not myself have a television set (believing, as all right-thinking persons must, that TV rots the brain) I am unable to provide an eye-witness account of the programme. However, informants (including the programme’s producer) tell me that, apart from the issues already mentioned in posts on this blog over the past few days, the programme investigated the Helsinki warning and concluded that it had nothing to do with Pan Am 103. It looked at Juval Aviv’s Interfor Report and concluded that there was no evidence to support it. Also featured were Ahmed Jibril of the PFLP-GC; Oliver North; the Frankfurt baggage handling computer operator in whose locker was found the computer print-out that supposedly showed that an unaccompanied bag had been transferred from Air Malta flight KM 180 to the Pan Am 103 feeder flight; former State Department lawyer Michael Scharf (on the CIA and Giaka and on Tony Gauci); Edwin Bollier; and retired FBI special agent Richard Marquise, all saying what would be expected.

The Independent's television review comments: 'Truth and lies were hopelessly tangled up in The Conspiracy Files, too, a strand that has done some useful work in the past in wiping up the mess left behind by credulous paranoiacs. In the case of this film about the bombing of Pan Am 103, which came down on the town of Lockerbie, matters were less straightforward. The programme briskly sorted out the facts behind some conspiracy theories – such as the nature of an early warning phoned in to the US embassy in Helsinki – while making it clear that there are still unsettling holes in the prosecution case. At least two of the interviewees struck me as bare-faced liars, while as many again had powerful motives for not telling the truth about an event inextricably entangled with the brutal realpolitik of the time. And the film ended with an astonishing interview in which the son of Colonel Gaddafi attacked the relatives of the dead as "greedy" and effectively repudiated Libya's formal acceptance of responsibility for the bombing. "I admit that we play with words," he said insouciantly. "We had to... there was no other solution."'

Here is what The Times's television reviewer has to say: 'Abdul Baset Ali al-Megrahi is still in jail for the 1988 Lockerbie bombing, although he has an appeal pending. The next time television makes a documentary about Lockerbie, it had better come up with a confession, which, as one of the victims' fathers said, was about the only way this matter will be concluded. Getting Colonel Gaddafi's son to chuckle that the Libyans were innocent did not cut it as a pay off. The Conspiracy Files: Lockerbie, though flashy, kept hurtling down blind alleys - much like the official investigation itself - and was unsatisfying.'

[For the avoidance of doubt, the view expressed above about the propensity of television to rot the brain is not meant to be taken – entirely – seriously.]