Thursday, 3 May 2018

Press briefing on behalf of Megrahi family

[What follows is the text of a press release issued today by Aamer Anwar & Co on behalf of the Megrahi family:]

Statement issued on behalf of the family of Mr Al-Megrahi by solicitor Aamer Anwar

“It has been a long journey in the pursuit for truth and justice. When Pan Am Flight 103 exploded over Lockerbie on the 21st December 1988 killing 270 people from 21 countries, it remains the worst terrorist atrocity ever committed in the UK. Nearly 30 years later many believe that Megrahi was the victim of a miscarriage of justice.

An application was lodged by my office in July 2017 with the Scottish Criminal Cases Review Commission (SCCRC) seeking to overturn the conviction of Abdelbaset Ali Mohmed al-Megrahi for murder.

The application was submitted on behalf of :-

i)                    The immediate family members of the late Abdelbaset al-Megrahi including his wife Aysha Ali Ahmed and son Ali abdulbasit Al-Megrahi (aged 22)
ii)                  Dr Jim Swire, Rev’d John F Mosey and many other British relatives of passengers who died on board Pan Am Flight 103 continue to support this application.

The Commission had previously determined on the 28th June 2007 that Abdelbaset al-Megrahi may have suffered a miscarriage of justice in relation to his conviction and identified six grounds for referring the case to the High Court. We have asked the Commission to reconfirm these six grounds.  

Special circumstances
The Commission were asked to address the issue of whether it is in the interests of justice to refer the case to the High Court for a posthumous appeal. The Appeal was commenced but following the diagnosis of terminal cancer it was suddenly abandoned in 2009. The application being lodged dealt with the circumstances that lead to Mr Al-Megrahi abandoning his appeal.

To date both the UK Government and Scottish Government have claimed that they played no role in pressuring Mr  Megrahi into dropping his appeal as a condition of his immediate release. It was alleged that this was fundamentally untrue.

The question for the Commission was whether it regards it as in the interests of justice to refer a case back to the High Court where the convicted person himself had commenced an appeal on a SCCRC reference and then chosen to abandon it.

The answer depended on the precise circumstances in which the appellant came to abandon his appeal. Mr Megrahi's terminal illness; the fact that prisoner transfer was not open while the appeal was ongoing; and whether Mr Megrahi had no way of knowing that Kenny MacAskill would ultimately opt for compassionate release rather than prisoner transfer, or as is alleged that he was led to believe that he would not be released unless he dropped his appeal.

We welcome the news that today that the SCCRC having considered all the available evidence have confirmed that they believe then when Mr Megrahi abandoned his appeal, he did so as he believed he held a genuine and reasonable belief that such a course of action would result in him being able to return home to Libya, at a time when he was suffering from terminal cancer.

The case will now proceed to stage 2 and the Commission will conduct a full review of the conviction for the ‘Lockerbie Bombing’ in order to decide if the case is referred back to the Court of Appeal.

The reputation of the 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 criminal justice system that these doubts can be addressed, however the only place to determine whether a miscarriage of justice did occur is in the appeal court, where the evidence can be subjected to rigorous scrutiny.


ONCE THE APPLICATION LODGED WITH THE SCCRC -WHAT HAPPENS?

1.      The case will be assigned to a case worker at the SCCRC and that worker will consider the case and provide a report to the Board (who sit once a month) The Board will consider whether to refer it back.

2.      The Board normally consider several cases at the same time but it is likely that in this instance the Board will convene specially to hear this application. 

3.      The SCCRC review and investigation process is described as thorough, robust, impartial and independent.

4.      On receipt of an application the Chief Executive of the Commission allocates the application to a legal officer. They obtain the court papers.
5.      The legal officer obtains any other further information he or she considers to be necessary so that the Board of the Commission can take a decision about whether to accept the application for review. 
6.      If the Board does not accept the application for review, the Chief Executive writes to the applicant and his or her representative to inform them of the Board's decision and the file is closed.
7.      If the Board accepts the application for review, they will write to all the relevant parties - e.g. The Crown, the Police and the Defence - to notify them that the application has been accepted for review and to request that they preserve for the duration of our review all documents and productions they hold relative to the case.
8.      They obtain then relevant papers from the Crown, the Police and the Defence. 
9.      Under normal circumstances the Legal Officer will conduct a review of the papers and issues in the case and will arrange to interview the applicant. 
10.  The Legal Officer prepares a case plan document setting out information relating to the evidence led at trial, the appeal, the grounds of review and his or her recommendations to take forward the review of the case.
11.  Within two months from the date of the acceptance of the application for review, the case plan is submitted to a Committee of two or three Board Members and the Chief Executive. The Committee consider the case plan and agree a course of action with the Legal Officer for the review of the case.
12.  The Legal Officer proceeds with the investigation and review, updating the Committee on the progress of the review every month or so and seeking guidance from the Committee and/or the Chief Executive where necessary.
13.  The review process should take no longer than nine months for conviction cases.
14.  After the review of the case is completed, the Committee take a view about whether or not the case should be referred to the High Court.
15.  The legal officer then prepares a draft statement of reasons for referral or non-referral for the Committee’s consideration. Once the Committee is content with the draft statement of reasons, the case is submitted to the Board of the Commission for a decision. 
16.  If the Board recommends a referral then the application will go back to the Appeal Court.
BACKGROUND TO THE CONVICTION AND SENTENCE

Mr Megrahi was convicted on the 31st January 2001 of the charge of murder following trial at the High Court of Justiciary sitting at Kamp van Zeist in the Netherlands. His co-accused Al-amin Khalifa Fimah was acquitted following trial. Mr Megrahi was sentenced to life imprisonment with a minimum term of 27 years.

Appeal
Abdelbaset al-Megrahi’s first appeal was dismissed on the 14th March 2002.

The next appeal was mounted in consequence of the Scottish Criminal Case Review Commission’s reference dated 28 June 2007.

Grounds of Appeal 1 and 2 were argued before the Court in full at a public hearing which took place between 28 April and 19 May 2009. On 7th July 2009 the Court indicated that one of its numbers, Lord Wheatley, had been hospitalised. It continued consideration of the grounds of appeal.

On 18th August 2009 Mr Megrahi with leave of the court, abandoned his appeal. No judgement or opinion has therefore been handed down by the Court upon these submissions.

BACKGROUND TO THE CONVICTION  

Pan Am flight 103 (“PA103”)
1.5 At 7.03pm on Wednesday 21 December 1988, shortly after taking off from Heathrow airport, PA103 was flying at an altitude of 31,000 feet en route to John F Kennedy airport, New York, when an explosion caused the aircraft to disintegrate and fall out of the sky. 243 passengers and 16 crew on board were killed. The victims came from 21 countries, the vast majority being from the United States.

1.6 The resulting debris was spread over a very wide area in Scotland and the North of England, but principally it landed in and around the town of Lockerbie causing the deaths of a further 11 people. In all 270 people were killed in the disaster.

1.7 A massive police operation was mounted to recover the bodies of the victims and as much of the debris as possible. The local police force, Dumfries and Galloway Constabulary (“D&G”), was assisted in the search operation by numerous officers from other forces in Scotland and England, as well as by military personnel and members of voluntary organisations.

Fatal Accident Inquiry
1.8 On 1 October 1990 a fatal accident inquiry was conducted by Sheriff Principal John Mowat QC. In his findings in fact, Sheriff Principal Mowat found that a Samsonite suitcase (“the primary suitcase”) containing a Toshiba radio cassette recorder loaded with a Semtex-type plastic explosive had been placed on board Pan Am flight 103A (“PA103A”) from Frankfurt to London Heathrow before being transferred to PA103; that the suitcase had probably arrived at Frankfurt on another airline and been transferred to PA103A without being identified as an unaccompanied bag; that the baggage had not been reconciled with passengers travelling on PA103, nor had it been x-rayed at Heathrow; and that the cause of all the deaths was the  detonation of the explosive device in luggage container AVE 4041 which had been situated on the left side of the forward hold of the aircraft.

1.9 Sheriff Principal Mowat concluded that the primary cause of the deaths was a criminal act of murder.

The police investigation
 1.10 It had been concluded very soon after the disaster that the likely cause had been the detonation of an improvised explosive device. From the date of the explosion and throughout the course of 1989-1991, an extensive international police investigation was carried out, principally involving the British and American investigating authorities, but also including the police forces of the former Federal Republic of Germany (“the BKA”) and of Malta.

1.11 Initially, suspicion fell upon Palestinian terrorist groups, in particular the Popular Front for the Liberation of Palestine – General Command (“PFLP-GC”). However, in 1990 developments in the investigation turned its focus to Libya, and on 13 November 1991 a warrant was granted by a sheriff at Dumfries for the arrest of the applicant and Al Amin Khalifa Fhimah (“the co-accused”), both Libyan nationals. On the following day the Lord Advocate issued an indictment setting out the charges against the two accused. Simultaneously, as a result of a federal grand jury investigation, the US Attorney General published an indictment in substantially similar terms to that issued by the Scottish authorities.

1.12 Following publication of the indictments, the UK and the US sought the handover of the two accused for trial, and throughout 1992 and 1993 the UN Security Council issued a number of resolutions calling upon Libya to do so. It also imposed extensive economic sanctions against that country. Libya denied any involvement in the crime.

Proposals for trial in the Netherlands
1.13 In 1998 the governments of the UK and the US wrote to the Secretary General of the UN indicating that they were prepared to arrange a trial of the two accused before a Scottish court sitting in the Netherlands. The trial, it was proposed, would follow Scots law and procedure in every respect except that the jury would be replaced by a panel of three judges. Following Libya’s consent to the initiative, an agreement was entered into between the UK and the Netherlands to put it into effect. On the same date, the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 came into force in the UK, regulating such matters as the constitution of the trial and appeal courts.

1.14 Lords Sutherland, Coulsfield and MacLean were appointed to form the panel of judges. Lord Abernethy was appointed as an additional judge to assume the functions of any member of the panel who died during the proceedings or was absent for a prolonged period. He was not required to carry out that function. The location of the court was chosen as Kamp van Zeist in the Netherlands.

1.15 On 5 April 1999, the applicant and the co-accused travelled to the Netherlands where they were arrested by Scottish police officers. On 14 April 1999 they were fully committed for trial, and were detained at premises within the court precincts. The indictment was served upon them on 29 October 1999.

The trial 
1.16 Preliminary pleas to the competency and relevancy of the charges were raised by both accused and argued on their behalf by counsel at a hearing on 7 December 1999. On 8 December, Lord Sutherland, sitting alone, held the charges to be both competent and relevant (see HMA v Al Megrahi (No 1) 2000 SCCR 177). Leave to appeal the decision was granted but no appeal was taken.

1.17 The trial commenced on 3 May 2000, and the cases for both accused closed on 8 January 2001. Neither the applicant nor the co-accused gave evidence.  Following submissions by the parties on 18 January 2001 the diet was adjourned to allow the judges to deliberate upon their verdicts.

1.19 The court returned its verdict on 31 January 2001. It unanimously found the co-accused not guilty. The verdict in relation to the applicant was recorded in the minutes of trial in the following terms (see also the transcript of proceedings on day 86 of the trial):
“The Court Unanimously found the Accused Abdelbaset Ali Mohmed Al Megrahi GUILTY on the Second Alternative Charge but that under deletion of the words ‘and you Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifah [sic] Fhimah  did there and then cause a suitcase to be introduced to Malta’ in lines 4 to 6 of subhead (e) of said charge and under deletion of the words ‘said suitcase, or’ in line 4 of subhead (g) and under deletion of the word ‘similar’ in line [4] of said subhead (g)”.

1.20 The court sentenced the applicant to life imprisonment, backdated to 5 April 1999, and recommended that he serve a minimum period of 20 years before he could be considered for release on licence.

Post-trial developments 
Appeal 
1.21 The applicant lodged grounds of appeal against conviction on 11 June 2001 and leave to appeal was granted on 23 August 2001. The proceedings took place at Kamp van Zeist between 23 January and 14 February 2002, and the opinion of the court, rejecting the appeal, was issued on 14 March 2002.

Application to the European Court of Human Rights 
1.22 On 12 September 2002 the applicant’s defence team lodged an application (number 33955/02) with the European Court of Human Rights in which they argued that the applicant’s right to a fair trial had been infringed by, inter alia, prejudicial pre-trial publicity. On 11 February 2003 the court ruled the application inadmissible on the basis that the applicant had failed to exhaust domestic remedies by raising these issues in the domestic forum.

Diplomatic developments 
1.25 On 12 September 2003, the UN passed a resolution lifting all UN sanctions against Libya.

 “Punishment part” hearing
 1.26 At a hearing at the High Court in Glasgow on 24 November 2003 under the Convention Rights (Compliance) (Scotland) Act 2001, the punishment part of the applicant’s sentence was set at 27 years, again backdated to 5 April 1999. On 18 December 2003 the Lord Advocate appealed against the sentence as being unduly lenient. 

For further background please refer to:-

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