Monday, 16 May 2011

Pan Am 103 relative questions MacAskill's evidence to MSPs

[This is the headline over an exclusive report just published on the website of Scottish lawyers' magazine The Firm. It reads as follows:]

Matt Berkley, whose brother died on Pan Am 103 in 1988 has questioned the accuracy of evidence Kenny MacAskill gave to MSPs in Parliament and to the Justice Committee.

Berkley says evidence about the prison visit and the terms of the Prisoner Transfer Agreement question the propriety of Mr MacAskill's choice to delay the transfer decision until Megrahi abandoned his appeal.

He also asks how the Lord Advocate failed to give correct legal advice.

"Contrary to Mr MacAskill's statements, there appears to be no evidence supporting a claim by Mr MacAskill to two parliamentary inquiries that Jack Straw committed Mr MacAskill to taking representations from this prisoner on transfer,” Berkely told The Firm.

“A question arises as to whether Mr MacAskill followed due process in what he described as a 'quasi-judicial' decision. The problem may bolster concerns that Mr MacAskill was negligent in failing to deal with the decision promptly. He might reasonably have been expected to take care to avoid tempting a prisoner to abandon his appeal, especially when the prisoner was in such obviously political circumstances."

MacAskill told the Justice Committee on 1 December 2009 that: "Jack Straw made it clear that, because this was the first situation in which a Government made an application, the prisoner should be given the opportunity to make representations."

Those statements, says Mr Berkley, appears to have no support, and that Mr Straw did not make those claims.

"What Mr Straw committed the UK to does not appear to be what Mr MacAskill followed,” Berkley said.

“Mr MacAskill made an invitation to the prisoner without advising him of an intention to transfer. Mr MacAskill never reached the stage of having any such intention, let alone telling the prisoner. More importantly, perhaps, the context of Mr Straw's commitment appears to be about something else: human rights of prisoners about to be transferred against their will, not those who had already said they wanted to go.

"Mr MacAskill repeated similar claims to the Scottish Parliament Justice Committee and Westminster Scottish Affairs Committee."

Mr MacAskill has been asked to repond to Berkley's claims.

[I do not know what, if any, advice about procedure Jack Straw gave to Kenny MacAskill. But it is clear beyond any shadow of doubt that if, in reaching his decisions on prisoner transfer and compassionate release, Kenny MacAskill proposed to hear representations from Lockerbie relatives, natural justice required him also to hear representations from Abdelbaset Megrahi. And if the relatives were to be allowed to make representations in person and not merely in writing, Megrahi would need to be accorded the same opportunity. Any other approach would have made a decision by the Cabinet Secretary for Justice to refuse either prisoner transfer or compassionate release gravely vulnerable to judicial review. Nothing said or not said by Jack Straw affects this crucial point.

It is, of course, true that there was absolutely no legal reason why Kenny MacAskill should have decided to deal with the Libyan Government's application for prisoner transfer concurrently with Megrahi's application for compassionate release. This was a grave blunder and the unnecessary linkage gave rise to the problems over abandonment of the appeal and what MacAskill said about abandonment (or was understood by Megrahi to have conveyed) during their meeting in HM Prison Greenock.]


  1. This seems a bit confused to me. I understood it was actually in the PT legislation that the prisoner had the right to be consulted and make representations. I thought all these representations, both from Megrahi and from the relatives, were in relation to the PT application.

    As I understand it Megrahi was keen to return to Libya, but was also keen that his appeal should go ahead. Until he fell ill, my impression was that he was determined to hang in there and see the appeal through. So it wasn't a case of him not wanting to return to Libya, but not wanting to give up his appeal.

    However, his illness intervened before the PT agreement was ratified. In addition, the appeals process was very long drawn out, and he might well have believed he couldn't live to see it completed. It would appear he became reconciled to the possibility of abandoning the appeal, in order to return to Libya.

    The deception appears to have been in delaying the PT decision until the compassionate release application was being decided. It appears that MacAskill had no intention of granting prisoner transfer, because he saw it as a betrayal of undertakings given to the families. But he continued the pretence of considering the application, well past the date the decision should have been finalised.

    At that point, it would appear that the two applications became conflated, and withdrawal of the appeal was linked to the compassionate release, which was quite incorrect.

    I well remember the press reports that Megrahi WOULD be withdrawing his appeal, and then compassionate release would be granted. That this was cause and effect seemed quite plain at the time.

    However, we have been told that all the consultations MacAskill undertook were in relation to the prisoner transfer application, and as far as I know he was obliged to consult Megrahi as part of that process.

    What he seems to have done is kept Megrahi uncertain about what was going on, and not to have advised him that dropping the appeal was unnecessary. On the contrary, all the evidence suggests that he at least strongly implied that dropping the appeal was necessary.

    In my opinion this was a betrayal of the victims and their relatives, who surely have a right to know who really bombed that plane even if they are currently under the misapprehension that Megrahi did it.

  2. At the time I remember it being quite clear that compassionate release meant the appeal could continue but the PT route meant the appeal must be dropped.

    There was no confusion. I have emails at the time to MacAskill urging him to go for compassionate release simply because the appeal would survive so it was very much known then the difference between the two options. And at that time too the SNP appeared to be determined to save the appeal themselves.

    I can understand what you say about Megrahi knowing how drawn out it was all going to be. Hadn't the Judiciary already delayed the appeal since June 2007 when the SCCRC announced its findings?

    The other thing is that it is possible Gaddafi agreed with Blair to force Megrahi to abandon the appeal in the spirit of the new understanding between the UK and Libya, plus all those trade deals of course. Megrahi was dependent on Gaddafi as were his family so he was in no position to defy him. And at the time he also understood he was dying.

  3. This is not an 'exclusive' by The Firm, nor is it 'news' from Matt Berkely.

    We were here 18 months ago!

  4. Oh, I was clear, you were clear, the media were perfectly clear, and as you say, there's no question at all that MacAskill was clear. It was the sheer clarity of it all that was the reason I was so shocked when it suddenly became clear that the appeal was being dropped even though compassionate release was going to be the outcome of the deliberations.

    It's Matt's take on it I find a bit confusing, though it's possible I'm misunderstanding him.

  5. So do we conclude, therefore , that the dropping of the appeal WAS initiated by Megraghi, or at least by those who influenced him? The suggestion from some quarters seems to be that, although MacAskill was aware that the appeal need not be dropped with compassionate release, this was not conveyed to Megraghi.Patrick is right. We`ve been here before.

  6. MISSION LOCKERBIE, 2011, doc. nr.1399.rtf.
    The International Criminal Court (ICC) has requested the arrest warrants of three top Libyan figures for crimes against humanity on his own people.

    Along with Libyan leader Colonel Muammar Gaddafi, his son, Saif al-Islam, and brother-in-law, Abdullah al-Sanussi, head of Libya's intelligence services, are accused.
    Al- Sanussi was convicted in absentia in 1999 by France for his role in the bombing a year earlier of a French UTA passenger plane. Please visit the special MEBO webpage:

    Important and interestingly: Colonel Gadhafi's, alleged roll in the bombing of Pan Am 103 over Lockerbie, was excluded by the IC-Court; based on exonerating background !
    (The libyan official Abdelbaset Al-Megrahi and Libya have to do nothing with the Lockerbie tragedy. Justice for Megrahi !)

    by Edwin Bollier, MEBO Ltd. Telecommunication, Switzerland. URL: www.lockerbie. ch

  7. These are legitimate challenges made by Matt in relation to the persistent delays that dogged the whole appeal process and Mr MacAskill's subsequent considerations of applications made by Libya and Mr Megrahi. As indeed are the questions of how these conditions may have contributed to any obfustication of matters related to Mr Megrahi and the options before him connected to prisoner transfer, compassionate release and the abandoning or continuing his appeal.

    In my opinion, the delays of the appeal, in Mr Macaskill's deliberations over the applications, and the ambiguous instructions implied at the meeting in Greenock prison all most certainly contributed significantly, if not wholly, to Mr Megrahi's eventual decision to abandon his appeal.

    “Mr MacAskill made an invitation to the prisoner without advising him of an intention to transfer. Mr MacAskill never reached the stage of having any such intention, let alone telling the prisoner."

    This, I feel, is a critical point that Matt raises. As I understand the PT process, it was for the Nation State, not the prisoner, to make this application without any requirements to discuss or agree with the prisoner for such an application. However, it was for the receiving authority, the Scottish Govt., to first determine whether this application made by Libya on behalf of its citizen were to be accepted. And only on acceptance of such an application, would then the Scottish justice secretary be 'advised' (given current human rights legislation as alluded to) representations be taken from the prisoner.

    If however, the application were declined or undecided, then clearly there would be no requirement to take representations. Mr MacAskill, nor any Scottish minister, ever indicated that that prisoner transfer was something they viewed as viable or acceptable, far less a conclusive decision made and this intimated to the prisoner therefore necessitating representations.

  8. The issue of Megrahi was at the top of MacAskill's in-tray from the moment he took his position as Justice Secretary in 2007. The Scottish govt and Mr Macaskill had consistently underlined their vigorous opposition to any possibility of a prisoner transfer, as had the bereaved family's, and in addition that any possible decision taken or eventually arrived at, the imperative matter indicated by all interested parties, the Scottish ministers, the families interviewed and indeed Mr Megrahi, was that it should be ensured that the appeal should continue and reach a conclusion.

    Thus, given Mr Macaskill had never made any commitment either way to the PT (not that he could given the 90 day stipulation contained in the PTA agreement had already elapsed at his meeting with Mr Megrahi, and the crown appeal against sentence remained live) until press conference given where, after Mr Megrahi had already applied to abandon his appeal, he offered decisions on both applications.

    This stinks to high heaven and without doubt the relatives of those who died, anxious that the appeal see it's conclusion regardless of the decision taken on Mr Megrahi, are naturally distrustful and utterly exasperated at the manner the process was handled and concluded.

  9. As I've said elsewhere on this blog, Mr MacAskill was well aware the whole time that he was unable to grant a PT request: the Crown's appeal for a longer sentence remained open, and would not be dropped. I find it hard to understand why he saw any point in extending the PT deadline, except to make a bit of political theatre out of it.

    When Megrahi made a conditional offer to withdraw his appeal if PT were to be granted, Mr MacAskill made it clear that the appeal had to be dropped in advance if PT were to be considered. It's at this point that he could have pointed out that his hands were tied, and no transfer could be granted, but he didn't.

    The mystery is that although Megrahi may not have been in the best state of mind to appreciate all this, his legal team must surely have been fully aware of it. It's very hard not to think that some pressure was applied. I suppose it's possible that the Libyan government thought they could swing a PT and didn't fully appreciate the separation of powers in a non-dictatorial state.

    It remains true that if no pressure was being applied from the Scottish side, MacAskill could have ruled out PT a priori and left Megrahi free to continue his appeal.

  10. Grendal, I was never willing to consider that Gaddafi himself forced Megrahi to drop the appeal. Or rather, that instructions from Gaddafi were brought to Megrahi by someone else. (Didn't we hear lately that Koussa visited him in Greenock?)

    Gaddafi's deal with Blair was done privately and I do not doubt one of Blair's aims, if not the main one, was to dump the appeal and all it would expose: chiefly that the wrong man was convicted. Gaddafi's aim was to be back in the fold. The rest was about trade.

    Someone whose views I respect suggested to me that the possibility that Gaddafi was the one who made it clear to Megrahi that the appeal was to go isn't one to be dismissed no matter the weight of responsibility the UK itself bears elsewhere for the scandal that was the original trial. When I allowed the possibility room I had to admit to myself that it may just be what happened. Megrahi had nothing to fight with: Gaddafi held all the cards for Megrahi and his family. And Gaddafi wanted to trade again with the very people who put Megrahi in the dock and convicted him, in all likelihood, unjustly.

    Having said all of that however I still think MacAskill caused untold confusion by constantly harping on about the PTA which was something Salmond had said from the beginning they would never consider.

  11. While agreeing with everything Jo and Eddie just said, I'm intrigued by this new blog post by David Macadam, linked to above. He seems to be speculating that now the SNP has a working majority the proposed publication of the SCCRC report may signal a change of tack on the Lockerbie affair.

    I still don't see how that computes, for all the reasons just outlined. It's an interesting thought though, and I suppose we'll see what happens next.

  12. Rolfe I've wondered about that too tho I wouldn't post publicly on it. I'll send something on via Prof B and ask him to forward to you.

  13. Too many opinions on this thread and too many people e-mailing each other in private: I'm off!

  14. Rolfe I've wondered about that too tho I wouldn't post publicly on it. I'll send something on via Prof B and ask him to forward to you.

    Jo, you have blocked my email. Not the other way round. If you have something to say to me, say it to me directly.

  15. Rolfe, I don't have the email address any more. That's why I was going to send it to Prof B. I didn't suggest you'd blocked my email.

    The reason I wasn't saying here what I think about Salmond's current position on Lockerbie is that I'm not sure enough about it to say it publicly.

  16. Patrick, I've explained why I didn't post publicly on the issue concerned. No offence meant.

  17. I have no clue about Alex Salmond's position on Lockerbie, as I've said before. I find my thinking on the matter is completely compartmentalised. Most of me is convinced the man walks on water, after 5th May. And then when we consider Lockerbie I'd happily push splinters under his fingernails.

  18. 'attempting to crush the Benghazi uprising when it began, in February'

    eh?if the scots decide to stage an uprising, attack a local military base, and take over town after town in a grand sweep down toward London, what would the U govt do?

    because THATS what the insurgents have been doing...they were never peaceful protestors:

    Max Forte analyses the social tweets that were fed to the media to justify the armed invasion of Libya:

    who are the insurgents?

    This war on Libya is aimed at removing Gadaffi and returning the country to a foreign controlled basketcase.