BBC renews attempt to be allowed to televise Lockerbie trial

[What follows is the text of a report headlined BBC renews bid to show Lockerbie trial that was published on the BBC News website on this date in 2000:]

The BBC has returned to court in a renewed attempt to be allowed to televise the Lockerbie bomb trial.

Last month, a judge turned down the corporation's original request saying the Libyan defendents' right to a fair trial was more important than the media's right to freedom of expression.

The BBC, which is seeking to broadcast the entire trial on the internet and show extracts on BBC news programmes, has taken its appeal against that decision to the High Court in Edinburgh.

The BBC's [counsel] Roy Martin QC has asked the panel of judges, headed by Lord Kirkwood, to overturn the judge's decision.

He told the court the Lockerbie trial was of unique interest, nationally and internationally.

He added: "It is of international significance. There is clearly very large international interest in the trial."

The BBC argues that the former Lord Advocate, Lord Hardie, was breaching the European Convention on Human Rights, which is now a part of Scottish law, by not allowing the trial to be broadcast.

Mr Martin said the BBC would ask the court to refer the matter to the judicial committee of the Privy Council to decide on the differing rights to a fair trial and to the media's freedom of expression.

The BBC contests Lord Macfadyen's ruling that witnesses at the Lockerbie trial would be affected by the presence of cameras.

The judge had said there was the risk of witnesses not attending the trial in Camp Zeist, Holland, if they knew it was being televised.

There were also concerns that witnesses would know what evidence had been given, and that some might play to the cameras.

Relatives of the people who died when the Pan Am flight 103 from Heathrow to New York blew up in the skies over Lockerbie on 21 December 1988, killing 270 people support Lord Macfadyen's decision however.

Spokesman Dr Jim Swire, who lost his daughter in the tragedy, said: "We feel in the case of this court, which does not have the power to subpoena witnesses except those living in the UK, there is a paramount need to avoid deterring witnesses from coming forward or from giving the fullest possible evidence.

"We had feared that broadcast televising of the trial might adversely affect the contribution from witnesses."

Abdelbaset Ali Mohmed Al Megrahi, 47, and Al Ali Khalifa Fhimah, 43, both deny conspiracy, murder and a breach of the 1982 Aviation Security Act.

At last month's hearing the BBC argued the Lockerbie trial, due to take place in Holland in May under Scottish legal procedures, should be televised.

The corporation's case centred on the decision by the former Lord Advocate, Lord Hardie, to allow relatives of those killed in the 1988 bombing to watch encoded pictures of the trial in four locations - Dumfries, London, New York and Washington.

The BBC said as they were physically outside the court, broadcasting had already been agreed.

But in his judgement, Lord McFadyen said there was a clear distinction between transmitting pictures to remote sites, to allow relatives to watch proceedings, and broadcasting to the general public.

[RB: The BBC’s appeal failed.]

Arab Ministerial Council demands release of documents in the Libyan citizen case

[This is the headline over an item posted on the Libyan Mathaba news agency website on this date in 2008. It reads in part:]

The Council of Arab Foreign Ministers has demanded that all documents requested by the defence team in the trial of the Libyan political hostage Abd al Basset al Megrahi to be released (...)

The failure to release the documents will lead to the miscarriage of justice and an impediment to his vindication, the Council said in a meeting in Damascus today.

The Council entrusted the Arab League Secretary General Amr Mussa with the follow up of this decision and to report back to the next Arab summit.

It considered the Libyan citizen Abd al Basset al Megrahi a hostage by all international norms and laws.

The Council endorsed a decision to tackle the damage resulting from the Lockerbie case.

It reconfirmed the legitimate right of Libya to reparations for the human and material losses incurred by the unjust sanctions that had been imposed on it.

[The shocking story of the Public Interest Immunity certificate signed by the Foreign Secretary David Miliband can be followed here.]

Lies, Libya and Lockerbie

[This is the headline over an article published in The Spectator on this date in 1992. It reads as follows:]

Alasdair Palmer explains why the men really behind the bombing of Pan Am Flight 103 will never be punished

New York lawyers Lee and Jim Kreindler have reason to be cheerful. In one month, a jury in New York will be asked to decide whether the Lockerbie air disaster happened because Pan Am deliberately failed to implement elementary security procedures. If the answer is yes, then insurers will be looking at paying out $400 million in damages to the families of those who died in the crash.

Kreindler and Kreindler are the kings of air crash litigation. Jim 'You name the air disaster, we've done it' Kreindler says the firm will be taking 'considerably less' than the customary 30 per cent contingency fee. They'll probably skim a modest 10 per cent instead, which should generate around $30 million for the 12-man law firm. Hence the smiles on Lee and Jim's faces.

Nevertheless, for most of the American victims' families, the money isn't going to be enough. They have said they won't be satisfied until they have blood as well.

It is perhaps a revealing insight into national character that there is a straight split between British and American families on this issue. Bert Ammerman, the leader of The Victims of Flight 103, has continuously lobbied for military action against whichever country turns out to have been responsible for the bomb. Jim Swire, the donnish doctor who leads the British equivalent, has pleaded for restraint, stressing at every opportunity that blood vengeance is the last thing that would please him and the British families he represents.

President Bush is unlikely to be swayed by the moderate doctor from Bromsgrove. According to Bert Ammerman, the President solemnly promised him military action would follow once Lockerbie's perpetrators were identified. In an election year, that may be one promise Bush is tempted to keep.

Past American responses to terrorism — possibly a more reliable guide to what Bush will do than his promises — suggest violent retaliation. The Berlin disco bombing of April 1986 cost the life of a single American soldier. The American response was to bomb Libya. That raid cost over one hundred Libyan lives, including Gaddafi's two-year-old daughter. If the death of one GI was thought to justify that, what response would be adequate to the murder of 250 American civilians?

Violent retribution is clearly coming. The only problem is whom to hit. The answer to that question obviously depends on who was responsible for Lockerbie. Right? Wrong. The deciding factor isn't who was responsible, but who can be hit without damaging any of America's current interests in the Middle East.

To see that, go back again to America's last retaliatory raid. The 'clear, decisive and irrefutable' evidence which the State Department used to identify Libya as responsible for the Berlin disco bomb was a series of communications intercepts which showed Tripoli congratulating its Berlin bureau the day after the explosion. These intercepts were all that ever pointed to Libyan involvement. But they were thought more than enough for Reagan and his then deputy, George Bush, to order the raid.

Intercepts of a strikingly similar nature were made available soon after Lockerbie. These intercepts were even clearer in pinpointing responsibility in that they actually showed money — $12 million — being transferred as payment for the successful destruction of Pan Am's Flight 103. The only difference was that this time the country congratulating the terrorists on a job well done was not Libya. It was Iran. And the money was being paid to a terrorist group headquartered in Syria and led by the Palestinian, Ahmed Jibril.

No one has denied the authenticity of the intercepts, or the interpretation of them. It was the Americans who first pointed them out. Up until Saddam Hussein invaded Kuwait, the CIA's Anti-Terrorist Department would explain their significance to any journalist who asked about them. Privately, Foreign Office and even State Department officials, will acknowledge that the intercepts demonstrate that Iran was the prime mover behind the bombing, and that Syria must take some responsibility for it. But the Iranian intercepts won't be used as evidence to demonstrate Iranian and Syrian involvement. Why not? `National security. They would reveal too much about our eavesdropping capaci- ty,' officials from the CIA's anti-terrorist section and the Foreign Office's Security Co-ordination Committee told me.

For 'national security' read 'political convenience'. Syria and Iran are now our friends. They helped release the hostages and they helped defeat Saddam. No one wants to offend them, let alone drop bombs on them. In the Middle East, with Iraq crippled and the peace conference underway, Syria and Iran are the two major powers. There is everything to play for. And the United States and Britain intend to make sure the play goes their way.

So the world is not going to wake up one morning to discover that American jets have bombed Teheran or Damascus. Iran and Syria are not even going to suffer diplomatic sanctions. Instead, they will be sent arms and given trade credits. And the intercepts which, just a few years ago, would have been claimed as 'clear, decisive and irrefutable' evidence that Ali Akbar Mohteshemi, Iran's Interior Minister in 1988, commissioned Ahmed Jibril, head of the PFLP-GC, a Palestinian terrorist group then based in Damascus, Syria, to organise the bomb that killed 271 innocent people, will be suppressed.

Libya is an entirely different matter. Colonel Gaddafi has few friends and precious little influence. The country is an ideal candidate for a bombing raid. It can't damage US interests, and it can't hit back. The only problem is how to pin the blame for Lockerbie onto Libya.

Which is not to say that Libyans had nothing at all to do with the explosion. They almost certainly did. The two Libyans indicted for the bombing last November — Abdel Baset Mohmed Ali al-Megrahi, and Al-amin Khalifa Fhimah — are very likely the men who physically placed the bomb in the international baggage system, with a stolen baggage tag which ensured it would be transferred to Pan Am Flight 103. But in all the talk about the need for 'justice' and the importance of punishing them for what they did, both the American and British governments are conveniently forgetting who ordered them to do it. In a normal murder trial, the prosecution would hold the men who ordered and paid for a killing to be as guilty as the men who actually pulled the trigger. And the Iranians were quite frank about their desire to revenge the shooting down of the Iranian air bus by the USS Vincennes in the five months before Lockerbie. Ayatollah Khomeini promised that it would be avenged in the 'blood- splattered skies'.

Yet America, with Britain in tow, seems about to compensate for its diplomatic inability to touch Syria and Iran by hammering Libya. Many of the diplomatic moves which preceded the 1986 raid on Gaddafi's bunker were lined up last week: an air embargo, an arms embargo, together with a warning from the State Department and the Foreign Office to all Americans and Britons to leave as fast as possible. Gaddafi is clearly a worried man. In an attempt to placate the United States, he has agreed to hand over the two suspects to the Arab League, who will probably hand them to the West. Gaddafi's hope is that this will be enough to satisfy George Bush. But if the President persists in identifying Gaddafi as solely responsible for the deaths of 250 American civilians, it is not clear how it can be.

If America does decide it needs to exact blood vengeance from Libya as well as the conviction of al-Megrahi and Fhimah, let us hope someone tightens up air security afterwards. For as things stand, Lockerbie could happen again, tomorrow, with revenge-hungry Libyans able to crawl through exactly the same security loophole that led to the destruction of Flight 103. Kreindler and Kreindler are going to win in New York because nine months before Lockerbie, Pan Am discontinued the one security procedure which almost certainly would have prevented the disaster: the matching of bags to passengers. Dropping the precaution broke the rules and proba- bly saved Pan Am a few thousand dollars. It also ensured that when the unaccompanied bag containing the bomb was transferred onto Pan Am Flight 103, no one bothered to take it off the plane. The staggering fact is that almost every airline based in Europe followed, and still follows, Pan Am's example. Despite an International Civil Aviation Organisation rule which forbids it, unaccompanied bags are routinely carried on planes. The Aviation Minister, Lord Brabazon of Tara, has admitted bluntly stating that 'positive reconciliation of transfer bags is not practiced at any major airport.'

Translated into English, what that means is this: book a journey which involves a change of planes and airlines — as the Lockerbie bombers did — and no one will check whether you travel on the same connecting flight as your luggage. If you used an identical bomb to the one that destroyed Pan Am flight 103, no one would be able to trace it. The Lockerbie bomb was the third time the world's terrorists have successfully exploited that loophole. It is a terrifying monument to official inertia that nothing has been done to close it.

If a fraction of the energy being poured into mobilising world opinion in favour of punishing Libya for the Berlin disco bomb had gone into ensuring onesimple security precaution was in place, the Lockerbie air disaster would not have happened. As it is, the next civilian airliner to go down is likely to be destroyed by exactly the same method which destroyed the last one. When it happens, Kreindler and Kreindler will be there to pick up the pieces.

The truth behind Lockerbie

[This is the headline over an article by Dr Issaka Souaré that was published on Al Arabiya News website on this date in 2008, having been published earlier that week in Al-Ahram Weekly. It reads in part:]

Libya has always maintained its innocence amid the allegation that it is responsible for the bombing of the American Pan Am Flight 103 over the Scottish town of Lockerbie in December 1988. It however accepted, about a decade later -- after many diplomatic manoeuvres -- to hand over two of its citizens to Scottish authorities to be tried for the alleged crime. Three Scottish judges, representing the Scottish High Court of Judiciary (HCJ), sat at a special court in a third country, as Libya had demanded (the Netherlands). Whilst they acquitted and subsequently released one of the two Libyan nationals, Al-Amin Khalifa Fhima, the other one, Abdul-Basit Ali Mohamed Al-Meghrahi was convicted of murdering 270 people in the bombing and was imprisoned for life.

Al-Meghrahi, as his country, has consistently maintained his innocence. He thus appealed against his conviction, but the Scottish High Court rejected this application in March 2002, just over a year after his trial concluded on 31 January 2001. However, in September 2003, he applied to the Scottish Criminal Cases Review Commission (SCCRC) to review his conviction in light of this body referring his case to the HCJ. The SCCRC is described in its mandate as an independent public body established in 1999 by Scottish authorities with responsibility for reviewing alleged miscarriages of justice in Scotland. As such, it has the power to refer to the HCJ any conviction or sentence passed on a person, whether or not an appeal against the conviction or sentence has been heard and determined previously. In this instance, the HCJ must hear an appeal in the case referred.

But to refer a case to the HCJ, the SCCRC must be convinced that the evidence presented to it establishes that; a miscarriage of justice may have occurred; and it is in the interests of justice that a referral should be made.

Understanding this background is important in understanding the case at hand. Al-Meghrahi's defence team lodged an application to the SCCRC in September 2003. About six months later, in February 2004, the SCCRC allocated the case to an investigative team of three legal officers on a full time basis. In May 2007, the SCCRC accepted the request of the defendant's legal team to appeal Al-Meghrahi's imprisonment, justifying this by the fact that the defence team had enough ground for the appeal.

In an official press release of 28 June 2007, in which it announced the referral of Al-Meghrahi's case to the HCJ, the SCCRC declared that it had identified six grounds -- some of which resulted from the SCCRC's own investigation -- where it believes that a miscarriage of justice may have occurred against Al-Meghrahi and that, "it is in the interests of justice to refer the matter to the court of appeal."

One of the grounds on which the SCCRC referred Al-Meghrahi's case to appeal is that there are new facts that challenge some of the "core" evidence that the trial court relied upon to convict Al-Meghrahi.  (...)

Further to all this, it seems that Al-Meghrahi's defence team is still being denied a critical and highly sensitive document for their appeal. In a report of the 23 February 2008 issue of the Scottish Sunday Herald, Al-Meghrahi's lawyer is said to have criticised the Scottish authority's silence over allegations that the British government, through Foreign Secretary David Miliband, is the one behind this, and that this constitutes an undue interference by Westminster in the Scottish judicial system. The document is thought to contain sensitive information about the electronic device used to explode the airliner that may clear Al-Meghrahi of the crime. Al-Meghrahi's defence team argue that the document was deliberately withheld from them at trial.

On the basis of the above, a number of questions are opened. If Libya was not behind the crime -- as it has always maintained -- then who was? Ex-CIA agent Robert Baer, who worked on the Lockerbie investigation, claims Iran was responsible. Why wouldn't the Americans seize on this allegation? Why the exclusive focus on Libya? Why would the British government zealously protect a document that supposedly incriminates Iran, or Syria for that matter? Iran could not be responsible for this; so who might be? (...)

Why did Libya agree to pay compensation to the families of Lockerbie victims when it claims it is innocent? Could it be that Qaddafi was that desperate to have Western sanctions against Libya lifted that he accepted to pay an amount that was little compared to what his country stood to gain from restoring relations with the West? One senior Libyan diplomat told me so. If so, was this a wise decision on the part of Tripoli? Could the ruling of an American court in mid-January ordering Libya to pay more than $6 billion in damages over the bombing of a French aircraft over Niger in September 1989 be seen as possible only because of Tripoli's decision? Will Libya refuse to pay, or will it conclude again that the amount is little compared to the benefits it gets from its relations with the West?

The release of Al-Meghrahi, should the Scottish appeals court acquit him, would surely open the door to many unanswered questions.

UN observer: Megrahi appeal decision was not a victory for justice

[On this date in 2002 Professor Hans Köchler, United Nations appointed observer at the Lockerbie trial and appeal, submitted his report on the appeal proceedings that upheld the conviction of Abdelbaset Megrahi. The report can be read here. What follows is the final section:]

On the basis of the above observations and evaluation it can be stated that the appeal proceedings were not fair (and thus not in conformity with the requirements of Art 6 Par 1 of the European Human Rights Convention) in two basic respects:

(a) The appeal judges chose a kind of “evasive” strategy by not scrutinizing the argumentation of the trial court in regard to its plausibility and logical consistency, thus not questioning at all the arbitrariness of the evaluation of evidence by the trial judges, and not paying adequate attention to new evidence presented in the course of the appeal – 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”?

(b) The Defense chose not to make use of many of the means available to it to defend the appellant and thus deprived him of his right to adequate and authentic legal representation under European standards.

One may formulate as a general maxim that in a case like the present one – where the proceedings are based entirely on circumstantial evidence and the Opinion of the Court operates with a series of inferences (often being as vague as mere speculation) – that assumption (or conclusion) is preferable to any other that requires fewer inferences and less artificial (or arbitrary) “reinterpretation” of the facts (the evidence accepted by the court). If one takes this maxim of logical reasoning and common sense into consideration, one may safely state that a reasonable jury could never have come to the conclusion of “guilt” in regard to the appellant on the basis of the vague and ambivalent evidence related to the supposed sequence of events in Malta. Furthermore, it can be reasonably stated that a determination of “guilty” under such circumstances does in no way meet the basic requirement under Scottish law that proof must be established beyond a reasonable doubt. The Appeal Court completely failed to deal with this basic issue of the case and preferred to effectively “put the blame” on the Defense’s omissions – explicitly stating that the Defense had accepted that there was a sufficiency of evidence and that it had expressly disavowed any claim of a “miscarriage of justice” according to the terms of Section 106 (3) Par (b) of the Criminal Procedure (Scotland) Act 1995 (referring to a jury’s having returned a verdict which no reasonable jury, properly directed, could have returned).

Whatever the nature of a system of criminal law, whether inquisitorial or adversarial, criminal proceedings, in order to be fair, must be based on the search for truth by means of establishing the facts and applying logical argumentation in the interpretation of the facts.

In view of the above conclusions, the undersigned considers it of special importance that investigations will be undertaken by the competent judicial authorities of the United Kingdom and Scotland respectively (a) in regard to the alleged withholding of evidence on the break-in at Heathrow airport, and (b) in regard to the alleged invitations by the Scottish Police of Mr Gauci for holiday trips to Scotland (which may have constituted illegal influencing of a key witness of the Prosecution by the Police – eventually making necessary a reevaluation of the evidence given by this witness). Furthermore, it will be of utmost importance to investigate the absence of the police after the break-in at Heathrow. In his testimony before the Appeal Court, Mr Manly stated that he did not see a single police officer after the reporting of the incident on the night of 20/21 December 1988. These are just three of several mysterious circumstances that have led international observers of the Lockerbie proceedings to raise reasonable doubts in regard to the correct and independent handling of the case by the judicial authorities of the United Kingdom and Scotland. In this regard, the call of British victims’ families for a public inquiry to be initiated by the House of Commons gains special relevance.*

If the shortcomings and deficiencies of the trial and appeal proceedings referred to above are not to be attributed merely to this special court (having operated under considerable political influence), but to the system of criminal justice in Scotland in general, a comprehensive review of that system may be necessary. Because of the exemplary nature of the case – in regard to the handling of a criminal case in a highly politicized international context –, and in view of repeated references by the Scottish judicial authorities to the adversarial nature of the Scottish system of criminal law (which was emphasized to explain the actual conduct of the Lockerbie trial), it may be of importance to ask four basic questions related to the compatibility of Scottish criminal law with the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms:

(A)    Is the Scottish system of criminal law – insofar as it excludes, in appeal proceedings, the critical review of the trial court’s evaluation of evidence – compatible with Art 6 of the Convention? If the argumentation of a trial court cannot be scrutinized and its original evaluation of evidence becomes a dogma not to be challenged by an appeal court, an appellant is effectively deprived of his right to a comprehensive review of his case in regard to the basic principle of fairness. The Appeal Court’s statement in Par 21 of the Opinion issued on 14 March 2002 “that it was not open to this court to review all the evidence which was before the trial court in order to determine for itself whether that court had come to the correct conclusion” highlights this problem; this finally leads to the question whether an appeal is not rendered meaningless under the restrictions imposed on it – in the interpretation of the present Appeal Court – under Scottish law. What is the meaning of an appeal in such a context of criminal law, where the original evaluation of evidence by the trial judges cannot be scrutinized by the appeal judges? A critical review of proceedings, which constitutes the essence of the rule of law, including the system of criminal law, becomes impossible in such a context. Arbitrariness takes the place of comprehensive reexamination of a case.

(B)     If the defense does not properly play its antagonistic role in an adversarial system, ie if it chooses not to use the means actually available to it and does not act in an authentic manner, the interplay of forces in regard to the “equality of arms” – which is absolutely essential in an adversarial system of criminal law – is set off balance. Because the role of the judges is not that of active investigators, there will be no remedy for such behavior by the Defense, ie for its decision to neglect its duties, and the accused / appellant will be deprived of his right to a fair trial.

(C)    The rejection of any inquisitive duty on the part of the judges in an adversarial system such as the Scottish one may not be compatible with Art 6 (1) of the European Human Rights Convention. (See the European Court of Human Rights’ Judgment of 16 February 2000, referred to above, declaring, inter alia, in regard to adversarial proceedings, “the unfairness caused at the trial by the absence of any scrutiny of the withheld information by the trial judge.”)

(D)    If we follow the operative definition of the formulation “proven beyond a reasonable doubt” in the context of the appeal court’s – and the trial court’s – deliberations and in the opinions of the trial and appeal courts, the concept of “reasonable doubt” becomes not only imprecise but meaningless because it is applied to an argumentative situation in which the determination of guilt is based on often vague evidence and on a series of highly problematic inferences. If a court is satisfied that the kind of weak evidence and inferences drawn from it found in the present criminal proceedings fit together “to form a real and convincing pattern” (see Par 368 of the Opinion of the Appeal Court of 14 March 2002), then any kind of inference and speculation, as long as it is drawn by a court in the exercise of its official function, meets the criterion of “proven beyond a reasonable doubt.” This would imply that an accused / appellant would have no chance to escape the arbitrariness of a court’s reasoning because virtually every set of inferences – irrespective of the grade of probability and of the rational quality of the argument – would fall under this definition. Such a situation, undoubtedly, cannot be reconciled with the basic requirements of the fairness of trial proceedings.

The Lockerbie case is also of exemplary nature for the development of international criminal justice. Because a precedent may have been set by the handling of the case in the framework of the Scottish Court in the Netherlands, the undersigned considered it necessary to add to the mere observations on the proceedings the above analytical remarks on the set-up, general normative framework and specific functioning of the court under the conditions of an adversarial system of criminal justice.

Regrettably, the undersigned has come to the conclusion that this specific type of court and court proceedings – whereby a national court deals with a matter of personal criminal responsibility of a foreigner in a case which at the same time relates to a dispute between UN member states, and specifically between the accused’s state and the state that exercises jurisdiction over him – is not viable in regard to the attainment of justice in the sense of transparent procedures and independent deliberations of a criminal court. The aforementioned dispute between states (in particular the United States, the United Kingdom and Libya) is still pending before the International Court of Justice and the trial arrangements have been set up following a resolution of the Security Council based on Chapter VII of the Charter. It has been proven as impossible – in this highly charged political context of inter-state relations and higher state interests – to conduct a criminal trial in an “independent legal space,” i.e. in an atmosphere of independence vis-à-vis national politics and international power politics at the same time. The extraterritoriality of the location of the proceedings was simply not sufficient to guarantee a fully independent trial. The geographical location of the proceedings outside of Scotland, despite the enormous costs involved, finally proved to be only a kind of sedativum for those concerned about the independence and impartiality of the proceedings.

In this regard, the undersigned would like to recall the reservations expressed by the International Progress Organization’sCommittee of Legal Experts on UN Sanctions against Libya, in a declaration dated 3 September 1998, concerning Security Council resolution 1192 (1998): “The Scottish legal system is undoubtedly up to international standards of due process and fair trial. There is no reason to doubt the report (Doc. S/1997/991) of the independent experts appointed by the Secretary-General of the United Nations on the Scottish judicial system. The real issue is not whether Scottish law is applied or not, but whether a tribunal exclusively consisting of Scottish judges can meet the requirement of impartiality. … The two Libyan suspects have already been publicly convicted in the United States and in the U.K. in violation of basic requirements of due process of law and the presumption of innocence. Under the present circumstances, it is hard to see how Scottish judges should be completely independent of this public conviction …. Only an international composition of the tribunal could provide remedy to this serious problem of fairness and impartiality.” The IPO Committee further stated that “a criminal tribunal on this case should either be international in its composition or should operate in an international framework such as that of the International Court of Justice. The procedural details should be worked out on the basis of the Statute of the International Court of Justice and not through bilateral agreements between the governments of the UK and the Netherlands as stipulated in Art 3 of the Security Council resolution.” The undersigned regrets to admit that, contrary to his hopes at the beginning of the trial in May 2000, the above-expressed reservations – in the formulation of which he had participated as coordinator of the Committee of Legal Experts – were proven justified in the course of events.

Because of the circumstances of the trial and appeal proceedings described above and in view of the considerable influence of power politics on any case where a national court deals with a matter related to a dispute between states, including the one exercising jurisdiction, the undersigned is convinced that the only viable alternative – in terms of independence of the judiciary and fairness of trial in any such case – will be proceedings under the regulations of the Rome Statute of the International Criminal Court (ICC). He expresses the hope that the Statute will come into force in the foreseeable future – in spite of its rejection by United Nations member states involved in the Lockerbie dispute. It has become evident that no national court and noad hoc tribunal set up by the Security Council can meet the requirements of independence, due process, impartiality and fairness. Only an internationally composed court (such as the ICC) will be able, at least in regard to its basic setup and procedural rules, to operate outside the framework of power politics.

Regrettably, the decision of the Appeal Court in the case of Abdelbaset Ali Mohamed Al Megrahi v H M Advocate was not a victory for justice, but for power politics. The proceedings have proven that a legally guaranteed separation of powers in a system which prides itself on its commitment to the rule of law is not a sufficient safeguard against political interference so as to ensure the independence and impartiality of criminal proceedings. However, the Lockerbie proceedings have taken place in the common “European space” of human rights and may accordingly – after all means of review in the judicial context of the United Kingdom have been exhausted – be reviewed by the European Court of Human Rights that exercises its jurisdiction on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Anniversary of Sunday Herald publication of SCCRC Megrahi report

[It was on this date in 2012 that the Sunday Herald published the Scottish Criminal Cases Review Commission’s Statement of Reasons in the Megrahi case. The BBC News website carried the following report:]

Full details of the Lockerbie bomber's grounds for appeal have been published for the first time.

The Sunday Herald said it had decided to publish online the 821-page report from the Scottish Criminal Cases Review Commission (SCCRC) in the case of Abdelbaset al-Megrahi.

It follows assurances by the lord advocate that SCCRC members would not be prosecuted for publishing details.

The newspaper said it chose to publish on the grounds of public interest.

The move was welcomed by First Minister Alex Salmond, who had earlier called for the grounds for appeal to be published.

Last week Lord Advocate Frank Mulholland said that while it was an offence for the commission to disclose information obtained in its investigations, he considered "it would not be in the public interest to prosecute, given the selective publication" in the media.

The SCCRC took four years to consider the Lockerbie bomber's case.

It produced an 821-page document which referred Megrahi's conviction for the 1988 bombing back to the appeal court for the second time.

The document - called a statement of reasons - has never been published in full before, even though Megrahi abandoned his appeal shortly before he was allowed to return home to Libya in August 2009 because he was suffering from terminal prostate cancer. He is still alive.

In publishing the document, The Sunday Herald said: "We choose to publish it because we have the permission of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing, and because we believe it is in the public interest to disseminate the whole document.

"The Sunday Herald has chosen to publish the full report online today to allow the public to see for themselves the analysis of the evidence which could have resulted in the acquittal of Megrahi.

"Under Section 32 of the Data Protection Act, journalists can publish in the public interest. We have made very few redactions to protect the names of confidential sources and private information."

SCCRC chief executive Gerard Sinclair confirmed that the Herald document appeared to be a copy of its statement of reasons.

He said: "The commission has always been willing to publish this document, subject to the appropriate protection of individuals' rights, and to that end has been working for some time with the relevant parties, including Crown Office and both the Scottish and UK governments, to allow for publication of the outcome of our inquiries into Mr Megrahi's conviction."

"No further comment will be made by the commission at this time."

The Crown Office said it noted the publication by the Sunday Herald.

It said: "The commission was working to facilitate the publication with appropriate protection for all of the persons named in it taking account of their human rights (articles 2 and 8) and issues of confidentiality.

"The unauthorised publication by the Sunday Herald today does not deal with any of these issues which rightly constrain all public authorities by law."

The Crown Office said it had "become very concerned at the drip feeding of selective leaks and partial reporting from parts of the statement of reasons over the last few weeks in an attempt to sensationalise aspects of the contents out of context".

It continued: "Persons referred to in the statement of reasons have been asked to respond to these reports without having access to the statement of reasons and this is to be deplored.

"Further allegations of serious misconduct have been made in the media against a number of individuals for which the commission found no evidence. This is also to be deplored.

"In fact the commission found no basis for concluding that evidence in the case was fabricated by the police, the Crown, forensic scientists or any other representatives of official bodies or government agencies."

The Crown Office also said it was "not appropriate or helpful to seek to try a case in the media".

It added: "The only place to determine guilt or innocence is in a court of law. The trial court accepted that this was an act of State sponsored terrorism and that Megrahi did not act alone.

"Investigations will continue to bring the others involved in the murder of 270 persons to justice.

"As a result the Crown will be making no further comment on the evidence in the case and on the statement of reasons."

Mr Salmond said: "I welcome the publication in full of this report, which is something that the Scottish government has been doing everything in our powers to facilitate.

"I especially welcome the fact that it offers a full account of the SCCRC's deliberations rather than the partial accounts which have appeared in the media in recent weeks."

He added: "This report provides valuable information, from an independent body acting without fear or favour, and while we can not expect it to resolve all the issues in the Lockerbie case, it does however lay the basis for narrowing the areas of dispute and in many ways is far more comprehensive than any inquiry could ever hope to be.

"The Lockerbie case of course remains an open criminal investigation, and while the only place to determine guilt or innocence is in a court of law, the SCCRC is a valuable body which is itself part of the Scottish criminal justice system."

[RB: The Sunday Herald’s own article announcing its publication of the report can be read here; and the report itself can be read here.]

Crown Office musical chairs

Posted from Istanbul Atatürk Airport:

In the course of my great trek from the Roggeveld Karoo to Edinburgh, I have belatedly discovered (a) that the Crown Agent, the civil service head of the Crown Office and Procurator Fiscal service, has resigned and (b) that the ministerial head of that department, the Lord Advocate, Frank Mulholland QC, has announced that he will demit office after the Scottish Parliament elections to be held on 5 May 2016. 

Have the Megrahi case and the imminent submission by Police Scotland of the Operation Sandwood report on Justice for Megrahi’s nine allegation of criminal misconduct in the Lockerbie investigation, prosecution and trial any bearing on these departures? Who knows? And I have no doubt that the Crown Office would scathingly reject the suggestion. (Indeed, I see that it has done so.) Iain McKie makes some highly pertinent comments here.

As far as the replacement Lord Advocate is concerned, what I wrote when Mr Mulholland was appointed in 2011 is equally applicable to his successor:

“This appointment is not unexpected, but it is to be regretted. Virtually the whole of Frank Mulholland's career has been spent as a Crown Office civil servant. This is not, in my view, the right background for the incumbent of the office of Lord Advocate, one of whose functions has traditionally been to bring an outsider's perspective to the operations and policy-making of the department. Sir Humphrey Appleby was an outstanding civil servant of a particular kind, but his role was an entirely different one from that of Jim Hacker and no-one would have regarded it as appropriate that he should be translated from Permanent Secretary of the Department of Administrative Affairs to Minister (or, indeed, from Secretary of the Cabinet to Prime Minister). 

“The appointment by the previous Labour administration in Scotland of Elish Angiolini as Solicitor General and then as Lord Advocate was a mistake, both constitutionally and practically, as was her retention as Lord Advocate by the SNP minority government (though the political reasons for her re-appointment were understandable). It is sad that the new majority SNP Government has not taken the opportunity to return to the wholly desirable convention of appointing an advocate or solicitor from private practice to fill the office of Lord Advocate. The much-needed casting of a beady eye over the operations of the Crown Office is not to be expected from this appointee. This is deeply regrettable since such scrutiny is long overdue.”

The present Solicitor General for Scotland, Lesley Thomson, like Frank Mulholland, was appointed from within the ranks of Crown Office staffers. It would be a grave mistake for her to be promoted to Lord Advocate.