Sunday, 15 March 2015

"Standards violated in most serious and fundamental way" in Lockerbie case

[On this date in 2002, the International Progress Organization issued a press release in the following terms:]

Lockerbie appeal: miscarriage of justice
Court not in conformity with European human rights standards
Camp Zeist / Vienna, 15 March 2002/P/RE/17525c-is

In interviews for BBC television and radio and for Dutch Television, Professor Hans Köchler, international observer at the Lockerbie Trial, stated yesterday that the decision of the Appeal Court in the case of Abdelbaset Ali Mohamed Al-Megrahi was not justified and did not properly take into account the contradictions and inconsistencies in the original verdict of the trial court. He spoke of a “spectacular miscarriage of justice” that occurred in the highly politicized context of the Lockerbie trial.

In additional remarks made after his return from Camp Zeist, Professor Köchler expressed the view that the handling of the appeal by the five judges demonstrated their bias towards the position of the prosecution as can be clearly seen from the 370 paragraphs of the Opinion of the Appeal Court.

Professor Köchler expressed the view that appeal proceedings are rendered meaningless if an Appeal Court does not seriously deal with new evidence brought before it and does not examine the grounds of appeal in a careful and systematic manner, based on reason and common sense. He furthermore raised serious questions about the performance of Al-Megrahi’s defense.

Professor Köchler stated that reference to the adversarial nature of the Scottish legal system can be no excuse for the total lack of fairness of the proceedings. Whether a legal system is of adversarial or inquisitive nature, whether we deal with a system based on Common Law or on Roman Law, the basic principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms have to be respected in any court proceedings in member states of the Council of Europe having acceded to the Convention.

Article 6(1) of the Convention states that “In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …” From the conduct of the trial and of the appeal it is obvious that these basic European standards, by which Scottish courts are legally bound, have been violated in the most serious and fundamental way in the proceedings of the High Court of Justiciary in the Lockerbie case.

In his capacity as international observer nominated by UN Secretary-General Kofi Annan on the basis of Security Council resolution 1192 (1998), adopted under Chapter VII of the Charter, Professor Köchler had made a comprehensive report after the announcement of the original verdict of the Trial Court on 3 February 2001. He announced today that he will present a comprehensive report on and evaluation of the appeal proceedings and that he will submit his observations to the President of the United Nations Security Council and to UN member states.

The International Progress Organization will make the report available to the international public at the proper time. [RB: Professor Köchler’s report on the appeal proceedings can be read here.]


  1. "...the High Court of Justiciary has “for long accepted that it is a matter for the Lord Advocate and Crown Counsel whom they choose to have in court in their support."'

    In any Danish Court there is exactly room for
    - The Judges
    - A referent
    - The prosecution lawyer
    - The defense lawyer
    - The defendent
    - An interpreter, if needed
    - One lawyer to support the victim in special cases
    - The victim, or one witness (same chair).
    - Spectators, in appropriate distance, expelled if they don't keep quiet.
    - Police in special cases

    I can in my wildest imagination not imagine anyone in the Danish legal system having the opinion that it is up to the prosecution or the defense, to invite 'whom they choose to have in court in their support'.
    The concept of 'equal arms' clearly suffers greatly. 'My supporters weighs heavier than yours' (which is BTW exactly the case here.).

    Koechler adds:
    "The undersigned was informed that the presence of foreign individuals “supporting” the prosecution and defense teams was due to an informal arrangement on the basis of mutuality between the US and Libya. "

    Are we spending hundreds of years for reaching procedures to define a course of justice - and then, ad hoc, we agree to a little informality?

    Of course there would obviously be times where informality could lead to better justice. No doubt about that.
    The problem is, that determining _when_ is so troublesome and disputable that we have to say 'nope'.

    Would there be times where a pilot in some kind of distress would fly more safely with a bit of alcohol in the blood? Undoubtedly. Should we then start considering when this would apply, from case to case?
    Absolutely not. We do not have that insight.
    So no alcohol in pilots and no informalities in courts.

    I recall Koechler already pointing out the presence of US MoJ reps in the first trial. Didn't the defence agree that this was a problem? If they did, who allowed for this?

    - - -

    While the above confuses lay people like me, it is of course peanuts to what Koechler rolls up in (10).

    The defense
    a) did not make the point that there was insufficient evidence
    b) expressly disavowed any reliance on Para. b of Section 106
    c) did not raise any of the technical issues
    d) did not raise the issue of Mr. Anthony Gauci being given a treat by the police
    e) did not raise the issue of why important evidence from Heathrow had disappeared from the police records

    Why?? It all seems totally obviously relevant to me.

    f) there was an obvious antagonism between the Defense Team and the “defense support team
    Again the 'support teams' that should never have been there.

    g) [and as a result] additional material in support of the defense case was collected only after the appeal hearings had started

    It is always easy to point to errors. There might legitimate reasons for some or all of above.

    I think there is a tradition - or maybe even laws - that prevent judges and lawyers to make statements about a single case.

    I think there should not be. It creates an unhealthy ivory-tower that nobody should be allowed to - or forced to - live in. "You may think I am all wrong. Not at all, but I am not allowed or obliged to explain why".

    It reminds me, BTW, that William Taylor has quite recently made several statements about the case (in his client's disfavor).
    If he can do that, why not sit down and explain the world why those thinking that the defense team did quite a lousy piece of work are wrong?

  2. William Taylor was supposedly writing a book about the case. I recall that information being conveyed by Magnus Linklater at least a year ago, if not more.

    It doesn't take that long. Take it from me. Or maybe he's doing a more thorough job, better editing, maybe he has a publisher who is taking his own sweet time about getting the thing out.

    I'm dying to know how he explains falling for the trick the prosecution played on him about Sidhu's evidence.

  3. A book! That would indeed be fantastic. He could be sure to be added to my library.
    One problem these guys have is that they are sure to be in hot water - or should be say icy - if they step on anyone´s toes. So we probably shouldn't expect too much.

    Koechler's words describe the problem very well.
    "In [SCCRC] giving exoneration to the police, prosecutors and forensic staff, I think they show their lack of independence. No officials to be blamed: simply a Maltese shopkeeper."

    Maybe he should wait until his career is over anyway.

    "I'm dying to know how he explains falling for the trick the prosecution played on him about Sidhu's evidence."
    Well, if the book is still under preparation, and he reads this, maybe he will include this matter.
    If the book ever comes.

  4. Being honest, I do wonder if he read my book and had to junk a lot of what he intended to say. I could be massively misreading the situation, but the timing would support it.

    I think there was a massive screw-up at the trial because people were playing legal games instead of trying to figure out what actually happened. I've heard some defence lawyers say they strive for maximum uncertainty as being helpful to their client. I think they believe it makes it easier to argue for reasonable doubt. But this was a case where by doing that they completely missed the evidence that would have provided proof of innocence.

    I keep waiting for someone to explain how it's possible that I've got it wrong, and the Bedford case hasn't actually been proved to have been the bomb. It's been well over a year now and nobody has taken up the challenge. Most people on the Crown side have ignored me completely. The closest we got was Mulholland or someone declaring that the Heathrow evidence had been fully examined by both the court and the appeal court and dismissed. Which completely avoids the entire point.

    If Bill Taylor can't show that I'm wrong about the Bedford case, he hasn't a leg to stand on. Can he pretend my book doesn't exist? I don't think he can. If he tries to write about the case on the assumption that the bomb did or might have come from Malta, he risks being a laughing stock. I got in first, and I don't see how he can avoid dealing with my thesis. He has to confront it, and I don't think he can prove me wrong.

    I don't pretend to know how he missed it. Inability to see the wood for the trees, perhaps. A focus on individual points without joining up the dots to see what the bigger picture looked like? An initial strategy that hoped to shake Sidhu on that case being moved, so he could suggest it had been replaced on the second layer, and then not looking the Trojan horse in the mouth when the Crown handed it to him on a plate?

    It could be back to what I suggested in an earlier thread. It's embarrassingly simple. It's so simple that the mind doesn't initially wrap itself round the possibility that the original investigation could have made such an obvious mistake. It took me a while to realise that, personally.

  5. Someone pointed out that we amateurs have had a lot longer to think about the case than the defence team at Zeist ever had. That's true, in terms of months and years, but it's not the whole truth. We amateurs have been thinking about it in our spare time, time left over from working nine to five, and doing the shopping and cooking the dinner. We have also been wrestling with an incomplete dataset.

    The defence team were in the Netherlands for many months. They were doing it full time. They didn't have to worry about earning a living as well, it was their living. And I suspect there wasn't a lot of housekeeping or cooking to do. Hotels? They were together, in a position to bounce ideas off each other and brainstorm possibilities as a team. And they had access to pretty much all the Heathrow evidence save that of the break-in which is a side-show anyway. (Yes, I believe they weren't shown the shorter of the Henderson reports, which is seminal, but they did have the raw statements Henderson distilled that report from.)

    I spent a lot of time in unproductive thought simpy because I didn't have the evidence. As soon as I was given the statements, I pretty much had it worked out that the Bedford case was the bomb as a logical necessity. A month, six weeks, probably less. At that point I didn't have the photos of the damaged luggage. Once I got those (and that was many months later) I leaped ahead again and could show empirically that the bomb suitcase was on the bottom of the stack of luggage. That again happened very quickly once I'd seen the pictures.

    Bill Taylor blew the thing big time, and if he has any sense he'll keep his head down.

    Or else there's Hans Kochler's apparent belief that Taylor colluded with the Crown in convicting his client. I couldn't possibly comment. Something I read recently resonates there though. I was reading a book about forensic science written by a well-known detective author (Val McDermid). One case she referred to happened in the USA, and the defendant had a complete alibi for the crime, well attested to by a number of witnesses. The prosecution completed their case and the defence attorney got to his feet and instead of calling the alibi witnesses he said, "the defence rests". His client was convicted of murder. The court never got to hear the alibi. The author suggested that the poorly-paid public defence lawyer had been threatened by the Mafia, who were the real culprits.

    When I read that, I was irresistably reminded of Bill Taylor calling only three of his defence witnesses for a defence that lasted less than a day. And of him pretty much passing up the chance to cross-examine Tony Gauci. I suppose we'll never know.

  6. Professor, there's something I've been meaning to ask for a while, and this thread may be as good a place as any. It's about the Scottish legal position regarding admissible evidence in appeals.

    You say that the only ground for appeal in Scots law is that there has been a miscarriage of justice, which is fine, but I'm so confused by reading material from other jurisdictions about what is and isn't admissible at the appeal stage.

    New evidence often seems only to be admissible if it's genuinely new and couldn't have been known about at the time of the original trial. Some of the debate surrounding whether the Zeist appeal could hear Manly's evidence seemed to be about that sort of thing. The evidence had existed all along, there was no good reason why it hadn't been led in the original trial, and so on. Although I note that that argument wasn't upheld.

    I've always been concerned that the Heathrow evidence is, quite obviously, not new. Everything necessary to work the whole thing out was in the possession of the defence at the time of the original trial. It's a new interpretation, but it's old evidence. I believe the USA would bar this completely. And yet you've never expressed any concern that the new interpretation wouldn't be admissible in Scotland. The metallurgy on the timer fragment is also something the defence should arguably have picked up on in the original trial. It's not new. But nobody seems to be worrying about this.

    In the USA and maybe even in England, we get the impression that an appellant has a better chance of acquittal if he can find some legal flaw in the original trial, than if he can show factual innocence. Indeed, I saw a quote from a US prosecutor or judge who said that proof of actual innocence was no barrier to the death penalty being carried out if all the legal steps had been correctly gone through, and there were no competent legal grounds of appeal remaining.

    Is Scotland really different, and we are actually able to say look, the whole thing was completely botched up by all present and if you simpy re-examine the original raw data you will see clear proof of innocence? I feel very poorly informed about all this.

    1. What it boils down to is that an appellant must must be able to furnish a reasonable explanation why the fresh evidence was not heard at the trial. This could be eg that the prosecution failed to disclose it, or disguised or concealed it (hiding a tree in a forest); that normal scientific processes at the time wouldn't have detected it; that your lawyers missed something that a reasonably competent lawyer would have found.

      One of the reasons why I've always preferred the independent inquiry route to the fresh appeal route is this hurdle that has to be surmounted in fresh evidence appeals. I could formulate pretty convincing arguments as to why your Heathrow material should be allowed. But an unsympathetic court could reject them. I should add, however, that any new appeal would not be ONLY about fresh evidence: it would also be about the conclusions drawn from the evidence at the original trial. And there, in my view, the appeal is virtually bound to succeed.

      The law on fresh evidence appeals is to be found in the decisions at various stages of the Nat Fraser case, both in the High Court ( paras 131 to 133) and in the Supreme Court ( paras 17 to 20).

    2. I suppose my main problem is with the concept that discovering the truth doesn't trump everything. Obviously there has to be some barrier to frivolous or poorly-founded appeals, but setting artificial barriers in place to prevent the truth being acknowledged always seems abhorrent. That ends in the US situation where apparently it's fine to execute someone who is provably innocent so long as the procedures were correctly followed.

      One can understand the defence trying legal trickery if they've nothing else to try, such as the nonsense that was presented in David Gilroy's appeal about a non-incriminating statement being taken without a caution. The Crown, though, one would hope would be seeking truth and justice, not hell-bent on pinning a crime on a provably innocent man. It's fairly tragic that the law doesn't seem to work that way.

      My other difficulty is understanding how there can be a public inquiry while the conviction still stands. If the legal position is that the right man was convicted and the true modus operandi was detected, why would there be a need for an inquiry. Wouldn't that only arise after the conviction had been found to be a miscarriage of justice and the public needed to know what the hell went wrong? If nothing is acknowledged to have gone wrong, what is there to inquire into?

    3. If there is public concern over an issue, the law provides that an inquiry can be set up by the Government (UK or Scottish or both together). There clearly is public concern about the Lockerbie conviction, generated inter alia by the SCCRC findings, various books, articles and websites. The outcome of the Police Scotland investigation into JFM's allegations may add to that concern. The conviction provides no legal bar to such an inquiry. Indeed, one of the things that an inquiry can do (and has done in the past) is lead to a Royal Pardon. A form of justice can still be done even if the courts are impotent (or purblind).

    4. Public concern? According to Frank Mulholland it's nothing but crazy conspiracy theorists who forgot their tinfoil hats.

  7. "What it boils down to is that an appellant must be able to furnish a reasonable explanation why the fresh evidence was not heard at the trial, e.g. "
    - that the prosecution failed to disclose it, disguised or concealed it
    - that normal scientific processes at the time wouldn't have detected it
    - that your lawyers missed something they should have seen

    Thank God our conclusions about medicine are not evaluated like this.
    "To stop sales of Thalidomide to pregnant women, you must prove why the scientists in Gruenentaler would have missed evidence, given their methods, or prove that they hid it away, or that better scientists could have seen what their data really meant...."
    This could have been argued to a certain place froze over - in fact none of it would have to be true - and we could still have fed our pregnant women with the drug.

    That there turned out to be a virtually perfect correlation between the countries marketing the drug, the time it happened, those women taking it, and tens thousand children born with with missing or crippled limps - well!

    Drugs or justice: appeal cases must be totally independent fresh views, given old and new evidence.
    Anything else is simply a false-named construction, giving impression of 'justice' while it obviously isn't.

    As Koechler wrote:
    "– – an attitude of effective denial of responsibility that made the entire process a highly formal, artificial and abstract undertaking not related to the search for truth (an essential requirement of justice) and rendered the appeal proceedings virtually meaningless. What else could be the meaning of an appeal process if not a comprehensive review of a trial court’s decision in regard to its duty to find the truth in order to make a decision on guilt or innocence “beyond a reasonable doubt”? "

    Note the:
    "... the search for truth (an essential requirement of justice) ..."
    Really? Well, those thinking that this would be a no-brainer - welcome to the real world.

    So, the way to get closer goes over an "independent inquiry route" - fine, whatever it takes.

    1. Someone in the IS forum declared passionately that court cases should be decided by scientists and then there would be no miscarriages of justice. It's a shame that's not true. You can find any number of biassed scientists peddling daft theories. You can probably hire them for whichever side you want expert witness for. Think about Roy Meadow and David Southall and Alan Williams.

      I think the difference is that the basic structure of science is intended to reveal the truth. People may be fallible, but if they're rumbled then word-games and mind-games won't save them. If everyone can see where the truth lies, it will be recognised. And there's no statute of limitations. Newton's followers can't claim that Einstein's work isn't admissible because certainty and finality or anything daft like that.

      So as a scientist when I see clear evidence pointing to a particular conclusion in this case, it actually shocks me that the legal establishment can stick its fingers in its ears and hum real loud. There should be no institutional barrier to the truth coming out. But there is.