Scottish judges rule Lockerbie documents will remain secret

[This is the headline over a report in today's edition of The Observer. It reads in part:]

Scotland’s most senior judges have upheld a secrecy order signed by the foreign secretary, Dominic Raab, to withhold intelligence documents believed to implicate a Palestinian terror group in the Lockerbie bombing.

Lawyers acting for the family of Abdelbaset al-Megrahi, the Libyan convicted of the bombing, believe the documents are central to a fresh appeal against his conviction which starts on Tuesday and had urged the court to release them.

The appeal has been lodged by Megrahi’s son, Ali Abdulbaset al-Megrahi, in what is believed to be the first posthumous miscarriage of justice case in Scottish legal history. Megrahi died of cancer in Tripoli in 2012 after being released from prison on compassionate grounds.

The documents are thought to have been sent by King Hussein of Jordan to the UK government after Pan Am Flight 103 was blown up over the town of Lockerbie on December 1988, killing all 259 passengers and crew, and 11 townspeople.

The documents are believed to allege that a Jordanian intelligence agent within the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), called Marwan Khreesat, made the bomb. Critics of Megrahi’s 2001 conviction believe the PFLP-GC carried out the attack on behalf of the Tehran regime in revenge for the destruction of an Iranian airliner by the US warship the USS Vincennesa in July 1988, but this was covered up in order to implicate Libya.

In August, Raab signed a public interest immunity certificate to keep the documents secret. In 2008 the then foreign secretary, David Miliband, also refused to release the papers ahead of Megrahi’s second appeal, later abandoned in the belief he would be released early from prison.

In a ruling issued late on Friday, Scotland’s most senior judge, Lord Carloway, the lord justice general, said the court had upheld Raab’s order signed in August, after studying the papers in a secret hearing earlier this month, even though the foreign secretary agreed the documents are relevant to the appeal.

“His clear view is [it] would cause real harm to the national security of the UK because it would damage counter-terrorism liaison and intelligence gathering between the UK and other states,” Carloway said, referring to Raab’s submission. “The documents had been provided in confidence to the government. Their disclosure would reduce the willingness of the state, which produced the documents, to confide information and to co-operate with the UK.”

To the disappointment of the Megrahis’ lawyers, Carloway sided with the UK government by arguing much of the material in the secret documents was known to Megrahi’s defence team at his trial in the Netherlands in 2000-01, as were claims about Khreesat’s role, even though the Jordanian cables were withheld from his lawyers.

The Megrahi family lawyers insist the documents could have opened up significant new lines of inquiry and helped prove Megrahi’s innocence if they had been released before his trial. Megrahi tried to incriminate the PFLP-GC in the bombing.

The Scottish government’s lawyers, who are on the UK government side in opposing the appeal, told Carloway they believed the documents should be disclosed.

The new appeal hearing was ordered after the Scottish Criminal Cases Review Commission decided Megrahi’s conviction was arguably a miscarriage of justice, because of significant discrepancies in the evidence of the Crown’s key witness, a Maltese shopkeeper called Tony Gauci, who alleged Megrahi had bought clothes put in the suitcase bomb.

The SCCRC also said the Crown had failed to disclose Gauci and his brother were offered reward payments totalling $3m for testifying. Given that evidence, no reasonable jury would have convicted Megrahi, and his rights to a fair trial under article 6 of the European Convention on Human Rights had been breached. [RB: Non-disclosure of the payment offer to the Gaucis is not the principal basis of the contention that no reasonable jury would have convicted.]

The commission found the Jordanian documents were hearsay and had not come from a primary source. That contradicts a previous ruling by the SCCRC. In 2007, with different commissioners involved in the case, it had decided the Jordanian documents did raise questions about the safety of Megrahi’s conviction when it recommended an appeal.

With that hearing under way in August 2009, Megrahi abandoned his case after it emerged he had cancer. “He did so at least partly because he thought that by doing so his prospects of compassionate release would be increased,” the court said.

Funding plea for appeal aiming to exonerate man convicted for Lockerbie bombing

[This is the headline over a report published today on the website of The National. It reads in part:]

The UK’s worst terrorist atrocity – the Lockerbie bombing – is returning to court as a crowdfunder is launched to pay for lawyers bidding to posthumously clear the only man to be convicted of the crime. (...)

Megrahi died in 2012, but his son Ali al-Megrahi is appealing against the conviction on his behalf.

The appeal was lodged after the Scottish Criminal Cases Review Commission (SCCRC) referred the case to the High Court in March following a ruling there may have been a miscarriage of justice.

Judges allowed the appeal in relation to the argument that “no reasonable jury” could have returned the verdict the court had and on the grounds of non-disclosure of documents by the Crown.

Aamer Anwar, the lawyer representing the family, claimed the Libyan government had “failed to honour its promise of funding the appeal” and has launched a crowdfunder. [RB: The crowdfunding page and details of how to contribute can be found here.]

He said the legal team had worked “pro-bono” for more than six years and had they charged the costs would run into millions.

The appeal hearing will start at the High Court in Edinburgh on Tuesday and is expected to last until the end of the week. [RB: Log-in information for members of the public wishing to follow the proceedings (audio only) is to be found here.]

Anwar said: “There has been a widespread assumption that our legal team have been paid fees to date, that is simply not true as they have worked pro-bono for what can only be described as the biggest criminal appeal in UK legal history.

“Despite promises over the course of several years, the Libyan government has so far failed to fund the case and so we are now forced to look to the public to support us however much they can.”

The lawyer said: “In conclusion, for the Megrahi family and many of the British families of the victims supporting the appeal, there is finally hope this is the end of a very long journey. For my team it has been six long years but for the families we represent it has been nearly 32 years of struggle for truth and justice.”

Central to the appeal are items said to have been bought by Megrahi in a shop in Malta owned by Tony Gauci, which were found in the case housing the bomb that destroyed Flight 103.

The SCCRC agreed a miscarriage of justice may have arisen as the court could not reasonably find Megrahi had bought them on the evidence before it. Gauci also received a $2 million (£1.5m) reward from the US for giving evidence against Megrahi.

Anwar added: “The judges, following the hearing in August, authorised the founding of the appeal on the additional ground of non-disclosure of the CIA cables. They also ordered that protected documents held by the UK Government should be released to the court.

“Thereafter a private court hearing … considered whether the documents over which Public Interest Immunity is claimed should be released to the appellant. A decision is still pending on whether the protectively marked documents will be released to us.” [RB: On Friday, 20 November the High Court published its decision upholding the UK Government's claim of public interest immunity. Accordingly this proposed ground of appeal falls.]

The forthcoming Megrahi appeal

[What follows is excerpted from a long document recently produced by the Crown in connection with the forthcoming posthumous appeal against the conviction of Abdelbaset al-Megrahi.]

On 6 March 2020 the Scottish Criminal Cases Review Commission referred the late Abdelbaset Ali Mohmed Al Megrahi’s 2001 conviction for the murder of 270 people in the Lockerbie bombing back to the High Court of Justiciary. (...)

The current appeal stems from an application made to the SCCRC by Mr Megrahi’s family in July 2017. In April 2018 the Commission accepted that application and began a full review of Mr Megrahi’s conviction. In their 2020 statement of reasons the Commission summarised the application by Mr Megrahi’s family as being based on 6 grounds, they were:

1. Insufficient Evidence;

2. Unreasonable Verdict;

3. Fresh Evidence, namely the Christmas Lights;

4. Non-disclosure;

5. Evidence relating to the Timer Fragment; and

6. Evidence relating to the Suitcase Ingestion.

On 6 March 2020 the Commission published their Statement of Reasons, a lengthy volume setting out the findings of their review, and in conclusion referred the conviction back to the High Court of Justiciary for an appeal hearing.

The Commission concluded that they could only refer the conviction back to the High Court on two of the above six grounds: Unreasonable Verdict and Non-Disclosure.

In June 2020 those representing the family of the late Mr Megrahi lodged their Grounds of Appeal at the High Court of Justiciary, thereby formally beginning the third appeal against conviction in this case.

The Appeal Court is bound in law to hear the appeal on the grounds of appeals in so far as they are in line with the Commission’s reference, and there is also provision for the appellants to argue that they should be allowed to argue further grounds of appeal not covered by the Commission’s reference.

The grounds to be argued at the appeal, also referred to as the scope of the appeal, were argued at the preliminary hearing on 21 August 2020.

The Preliminary Hearing called before Lord Carloway the Lord Justice General, Lady Dorrian the Lord Justice Clerk and Lord Menzies at the Appeal Court on 21 August 2020. This was a virtual hearing of the Appeal Court. Submissions were heard from the Appellants, the Crown and on behalf of the Advocate General. (...)

The Grounds of appeal were numbered Part 1, and Part 2, A – D. Arguments were made by both sides as to the scope of the appeal and whether additional grounds of appeal, which did not form part of the SCCRC’s referral, could be argued in the appeal. The grounds of appeal which were matters referred by the SCCRC were automatically included in the scope of the appeal and no arguments were made in relation to them. These are:

Ground 1 - that no reasonable jury could have convicted Mr Megrahi based on the evidence;

and

Ground 2 Part A - the non-disclosure of information in relation to the evidence of Crown Witness Antony Gauci.

A number of documents were listed in support of Ground 2 Part A. However, one of them, (described as Part A, para 14 in the Grounds of Appeal), was not included in the SCCRC referral and has now been excluded by the Court from the appeal.

The Appellants argued that additional grounds of appeal in addition to the Commission’s grounds of referral should also be admitted, namely:

Ground 2 Part B - the non-disclosure of information in relation to the witness Abdul Majid, also known as Giaka;

Ground 2 Part C - the non-disclosure of information contained in protectively marked documents; and

Ground 2 Part D - the non-disclosure of other information which shows there was no effective system of disclosure to ensure a proper procedural safeguard to guarantee the right to a fair trial. This information was further divided into 7 distinct areas.

Parts B, C and D (and also one item from Part A) did not form part of the reasons for the referral by the SCCRC. They were points that the SCCRC considered and have commented on within their Statement of Reasons but which they did not consider were in the interest of justice to refer. The SCCRC did say, however, that the appellants might seek to include them within an additional ground of appeal.

The Crown position at the hearing in respect of the potential additional grounds of appeal inGround 2, Part A (item 14), Part B, Part C and one of the 7 areas in Part D was that whilst recognising it was ultimately a matter for the Court, the preference was that they were heard in the full appeal hearing because the Crown would wish to answer the points and consider it is in the interests of justice to do so because to leave the points unanswered may affect public confidence in the safety of Mr Megrahi’s conviction and the administration of criminal justice in Scotland more generally. In relation to part D above, the Crown asked for all but one of the 7 examples given to be excluded from the scope of the appeal.

After hearing all the arguments, the Court made avizandum (this means a pause) while they considered their decision. On 26 August 2020 the Court issued their decision on the scope of the appeal, and set out the procedure to be followed:

1. They allowed Mr Megrahi’s son, Ali Abdulbasit Ali Almaqrahi to bring the appeal on behalf of his late father.

2. They also allowed the appellants to proceed with some additional grounds of appeal that did not relate to any of the reasons set out by the SCCRC in its 2020 Statement of Reasons. These are as follows:

a) The Court allowed Ground 2, Part B to be heard at the appeal as an additional ground. This is with regard to information relating to the witness Abdul Majid, also known as Giaka.

b) In respect of Ground 2, Part C, which related to information contained in the protectively marked documents, the court has not made a final decision about whether this will form a ground of appeal yet. Instead, it ordered that the documents in question be produced to the court and that a special hearing be fixed in a closed court in order to consider whether the Public Interest Immunity Certificate granted in respect of the documents should remain in place. A hearing took place on 11 November 2020. The result is awaited (...) [RB: On Friday, 20 November the High Court published its decision upholding the UK Government's claim of public interest immunity. Accordingly this proposed ground of appeal falls.]

c) With regard to Ground 2, Part D, in which the appellants argued that there was not an effective system of disclosure to ensure that Mr Megrahi had received a fair trial, the court refused to allow this, excluding all 7 parts of it and the wider argument. It stated that it would not allow any ground of appeal to proceed which related to "system of disclosure which was not fit for the purpose of ensuring that all relevant information was identified and disclosed", the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the respondent” (the Crown).

d) The court also set out that the hearing will start on Tuesday 24 November 2020 and the three following days. 

The Appeal Court will sit at 10am UK time from Tuesday 24th until Friday 28th [sic] November 2020. 

A bench of five Judges of the High Court of Justiciary will hear the full appeal hearing and rule on the merits of the appeal. They will be: 

The Right Hon Lord Carloway, the Lord Justice General

The Right Hon Lady Dorrian, the Lord Justice Clerk

The Right Hon Lord Glennie 

The Right Hon Lord Menzies

The Right Hon Lord Woolman.

The Crown will be represented at the appeal by three Advocate Deputes: 

Ronnie Clancy QC

Douglas Ross QC  

Nick Gardiner. 

They also represented the Crown in the 2007-2009 appealfollowing the SCCRC’s 2007 reference  which was ultimately abandoned by the appellant. At the appeal hearing, as senior Crown Counsel, Ronnie Clancy QC will make the Crown’s submissions to the Court.

The appellants will be represented by Senior Counsel and Junior Counsel. They are respectively:

Claire Mitchell QC

Claire Connelly.

[RB: It appears that the hearing will once again take place by means of WEBEX, a video conferencing online application. Log-in information for members of the public wishing to follow the proceedings (audio only) is to be found here.]

Robert Fisk and Lockerbie

[I am saddened to learn of the death of author and journalist Robert Fisk. His views on Lockerbie and the Megrahi conviction have featured regularly on this blog. What follows is from a column written by him in The Independent on 22 August 2009:]

For the truth, look to Tehran and Damascus – not Tripoli

Forget all the nonsense spouted by our beloved Foreign Secretary. He's all too happy to express his outrage. The welcome given to Abdelbaset Ali al-Megrahi in Tripoli was a perfect deviation from what the British Government is trying to avoid. It's called the truth, not that Mr Miliband would know much about it.

It was Megrahi's decision – not that of his lawyers – to abandon the appeal that might have told us the truth about Lockerbie. The British would far rather he return to the land of the man who wrote The Green Book on the future of the world (the author, a certain Col Muammar Gaddafi, also wrote Escape to Hell and Other Stories) than withstand the typhoon of information that an appeal would have revealed.

Brown and Gaddafi. Maybe they should set up as a legal company once their time is up. Brown and Gaddafi, Solicitors and Commissioners for Oaths. Not that the oaths would be truthful.

Megrahi's lawyers had delved deeply into his case – which rested on the word of a Maltese tailor who had already seen a picture of Megrahi (unrevealed to us at the time) so he could identify him in court – and uncovered some remarkable evidence from the German police.

Given the viciousness of their Third Reich predecessors, I've never had a lot of time for German cops, but on this occasion they went a long way towards establishing that a Lebanese who had been killed in the Lockerbie bombing was steered to Frankfurt airport by known Lebanese militants and the bag that contained the bomb was actually put on to the baggage carousel for checking in by this passenger's Lebanese handler, who had taken him to the airport, and had looked after him in Germany before the flight.

I have read all the interviews which the German police conducted with their suspects. They are devastating. There clearly was a Lebanese connection. And there probably was a Palestinian connection. How can I forget a press conference in Beirut held by the head of the pro-Syrian "Popular Front for the Liberation of Palestine" (they were known, then, as the "Lockerbie boys") in which their leader, Ahmed Jibril, suddenly blurted out: "I'm not responsible for the Lockerbie bombing. They are trying to get me with a kangaroo court."

Yet there was no court at the time. Only journalists – with MI6 and the CIA contacts – had pointed the finger at Jibril's rogues. It was Iran's revenge, they said, for the shooting down of a perfectly innocent Iranian passenger jet by the captain of the American warship Vincennes a few months earlier. I still happen to believe this is close to the truth.

But the moment Syria sent its tanks to defend Saudi Arabia after Saddam Hussein invaded Kuwait in 1990, all the MI6 truth-telling turned into a claptrap of nonsense about Col Gaddafi. (...)

Of course, we must now forget the repulsive 2004 meeting that Blair arranged with Gaddafi after the latter had supposedly abandoned plans for nuclear weapons (not that his Tripoli engineers could repair a blocked lavatory in the Kebir Hotel), an act which the former foreign secretary Jack Straw called "statesmanlike". (...)

Thank God for Jack Straw. He cleaned up Gaddafi's face and left it to Miliband to froth on about his outrage at Megrahi's reception back in Tripoli.

Meanwhile the relatives of those who died at Lockerbie – and here I am thinking of a deeply sad but immensely eloquent letter that one of those relatives sent to me – will not know the truth.

I suspect that the truth (speak it not, Mr Miliband, for you do not wish to know) lies in Lebanon, in Damascus and in Tehran. Given your cosy new relationship with the last two cities, of course, there's not a whimper of a chance that you'll want to investigate this, Mr Foreign Secretary. And not much encouragement will "Mad Dog" Gaddafi give to such an undertaking, not after the gifts – oil deals, primarily, but let's not forget the new Marks & Spencer in Tripoli – which he has given us. (...)

Ironically, Megrahi flew home to Tripoli on an Airbus A300 aircraft, exactly the same series as the Iranian plane the Americans shot down in 1988 – and about which Gaddafi never said anything.

It was Ayatollah Hossein Ali Montazeri (once Khomeini's chosen successor but now a recluse under semi-house arrest who stands up for President Ahmadinejad's political opponents) who said in Iran in 1988 that he was "sure that if the Imam [Khomeini] orders, all the revolutionary forces and resistance cells, both inside and outside the country, will unleash their wrath on US financial, economic and military interests".

Remember that, Mr Miliband? No, of course you don't. Not even a whimper of outrage.

Fourth anniversary of death of Tony Gauci

[The death of Tony Gauci, the Maltese shopkeeper whose "identification" of Abdelbaset Megrahi was crucial to his wrongful conviction, was announced on this date four years ago. What follows is a report in the Maltese newspaper The Times:]

Tony Gauci's death means mystery might remain unresolved

Tony Gauci, the Maltese man who determined the outcome of the Lockerbie trial, has died,Times of Malta is informed. 

Mr Gauci, who lived in Swieqi, is believed to have died of natural causes. 

He had pointed at Abdelbaset al-Megrahi as the man who had bought the clothes from his Sliema shop, which were said to have been wrapped around aircraft which killed 270 people over the Scottish town of Lockerbie in December 1988. 

This evidence tied together the prosecution's thesis, that the bomb loaded on to the doomed Pan Am flight at Heathrow Airport had first left from Malta before being transferred via Frankfurt. But serious doubts were raised about Mr Gauci’s testimony over the years.

Libyan national Al-Megrahi died in 2012 with the tag 'the Lockerbie bomber’ despite the fact that the Scottish Criminal Cases Review Commission had described Mr Gauci as an “unreliable” witness, putting the onus of the responsibility of the UK’s worst terrorist attack in doubt.

The SCCRC said the Crown prosecution suppressed from Megrahi’s defence team statements showing how much Gauci changed his mind about crucial details over the years.

Documents published later had revealed that the lead investigator in the Lockerbie bombing personally lobbied US authorities to pay Mr Gauci and his brother Paul at least $3 million for their part in securing the conviction of Al-Megrahi.

Mr Gauci never spoke publicly about the case and maintained the media silence that characterised his role in the whole affair. He was last approached for comment for an edition of Times Talk in November 2013.

Mr Gauci's death signals the end of a key witness to a case which continues being fought legally by relatives of victims who believe Mr Al-Megrahi was innocent. 

[A report in The National two days later contained the following:]

...in 2007, the Scottish Criminal Cases Review Commission (SCCRC) found six grounds where it was believed a miscarriage of justice may have occurred, paving the way for a second appeal.

The commission questioned evidence about the date on which the prosecution said the clothes were bought from Gauci’s shop.

The SCCRC also said evidence that cast doubt on Gauci’s identification of Megrahi had not been made available to the defence – in breach of rules designed to ensure a fair trial.

There was also evidence that four days before he identified Megrahi, Gauci had seen a picture of him in a magazine article about the bombing.

Megrahi dropped a second appeal in 2009 before being released due to his terminal prostate cancer.

In his last interview, he insisted he had “never seen” Gauci and had not bought clothes from him. (...)

Aamer Anwar, the Glasgow lawyer who acts for the Megrahi family, told The National: “Tony Gauci went to his grave knowing that he had always been accused of falsifying his evidence to convict al-Megrahi who until his dying breath maintained he was innocent.

“It is sad that we were unable to test his ‘unreliable identification’ evidence at appeal, however the Megrahi family remain determined to return to court one day to overturn the conviction of their father Abdelbaset al-Megrahi.”

George Thomson, who worked for Megrahi’s defence team, said the Libyan would look forward to meeting his accuser.

He told The Times of Malta: “When I last spoke to Baset on his deathbed he spoke of the day that he and Tony might meet in another place, where Tony would have to face him and answer for the lies he said against him.

“I personally hope that Tony is in a better place and that he is now at peace because he must have led a tortured life knowing that he had jailed an innocent man for money.”

[The role of Tony Gauci will feature prominently in the appeal by the Megrahi family that is due to commence in the High Court of Justiciary on 24 November 2020.]

Appeal Court's written opinion following Megrahi procedural hearing

Following the first procedural hearing at the end of August in the appeal by the Megrahi family, I commented in this blog as follows:

This is a very good outcome for the appellant. The court has not restricted the appeal to the (disappointingly narrow) grounds accepted by the Scottish Criminal Cases Review Commission. It has also not rejected out of hand the possible relevance of the documents in respect of which first David Miliband and now Dominic Raab have asserted public interest immunity on behalf of the UK Government. Unsurprisingly, however, it rejected proposed grounds of appeal based on the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the Crown”.

The appeal court's written opinion has now been released. It can be read here. A report in the Daily Record can be read here; and the report in Scottish Legal News can be found here.

Resignation of Richard Keen QC as Advocate General for Scotland

Richard Keen QC (Lord Keen of Elie) has resigned from the post of Advocate General for Scotland in Boris Johnson's government. For any law officer with a modicum of integrity this was inevitable on the promotion of a Bill which deliberately seeks to empower UK ministers to breach the United Kingdom's obligations under an international treaty. The only surprises are (1) that it took Lord Keen so long to take this step and (2) that the law officers for England, and the Lord Chancellor, have not followed suit. 

Richard Keen has long been involved in the Lockerbie case. He represented Lamin Fhimah who was acquitted at the Zeist trial and, as Advocate General since May 2015, his office has represented the UK Government's interest in the Lockerbie case, in particular in asserting public interest immunity in respect of documents claimed by the Megrahi legal team to be necessary for the proper conduct of the current (and the previous) appeal against conviction. References to him on this blog can be found here.

Megrahi’s reputation, and that of Libya, will soon be restored

[An article by Dr Mustafa Fetouri headlined Why is the GNA defunding the Lockerbie case despite it being close to a verdict of innocence? is published this morning on the website of Middle East Monitor. It reads as follows:]

The only Lockerbie bombing convict is one step closer to his guilty verdict being overturned, however, posthumously. Abdelbaset Al-Megrahi died at home in Tripoli on 21 May, 2012, while protesting his innocence until his last breath. The Scottish Criminal Cases Review Commission (SCCRC) allowed the family to proceed with an appeal to clear his name. The case was sent to the High Court of Justiciary, Scotland’s highest criminal court, and a date for the final hearing has been scheduled to start on 24 November.

His 27-year-old son Ali, who is leading the family’s long and arduous fight to clear his father’s name, is certain that justice will prevail this time and that his late father’s verdict will be reversed. During a telephone conversation in Tripoli last Monday, he assured me: “My father’s name will certainly be cleared this time.”

The family’s lawyer Aamer Anwar, a distinguished Scottish lawyer who volunteered to take the case, in a series of emails confidently communicated to me: “We have a robust appeal.”

Winning this time seems certain. Professor Robert Black, a Scottish law authority, and the mind behind the first Lockerbie court setup in the Netherlands in May 2000, agrees with this analysis. He believes the Scottish court will “overturn the verdict” against Al-Megrahi, however, on the “narrower ground” of the crown prosecutor “withholding materials” from the defence team that could have helped establish Al-Megrahi’s innocence from the outset. Professor Black is “disappointed” that the court might not go as far as “to find that no reasonable court would have convicted Al-Megrahi.” He added, “I hope I’m wrong about this” – which would restore some of the Scottish judiciary’s reputation tarnished by the Lockerbie case and its aftermath.

The Lockerbie bombing, since 1988, became negatively synonymous with Libya, Gaddafi and its entire population. Gaddafi, firmly believing in their innocence, refused to hand over his accused citizens, Lamin Fhimah and Abdelbaset Al-Megrahi, to stand trial in the UK. This led the United Nations (UN) to adopt a series of sanction resolutions, including Resolution 731, passed on 21 March, 1992, with harsh economic and political punitive measures that not only isolated Libya, but made life extremely difficult for its entire population.

The long-held belief that the late Gaddafi was behind the attack still echoes within Western mainstream media, despite the mounting evidence to the contrary emerging over the years.

Now, it can be disclosed that Libya’s Government of National Accord (GNA), the only UN-recognised authority in the country, wants the mud to keep sticking to Gaddafi, Libya and its people too. The GNA is not enthusiastic about this latest development. The GNA have, illegally, cut the funding for the case over the last three years.

Al-Megrahi’s son Ali and the family lawyer are puzzled as to why the GNA cut funding at this critical junction of the case – when winning seems all but certain.

Lawyer Anwar does not disqualify the assumption that the GNA came under pressure from both the UK and the US to steer away from the case. The British and American narrative of the Lockerbie tragedy has always been that Libya is responsible and “that narrative must be maintained”, Anwar informs me.

However, suspension of defanging goes much deeper within the GNA, where corruption is rampant. A Scottish consultant to the legal team, speaking on condition of anonymity, yesterday clarified: “I believe funding is still budgeted, but the money disappears before getting to its intended final destination.”

Despite writing several times to the GNA to resume funding to meet the substantial mounting legal fees, Anwar received no replies until a few months ago, when his consultant was told that the GNA did not receive any messages relating to the funding of the case.

However, the consultant strongly disputes this, asserting that she “personally” handed over the file to the “highest official in the GNA” in a December 2017 meeting in Tripoli. When asked if “the highest official” meant Fayez Al-Sarraj, the GNA’s prime minister, she replied: “You think about it.”

It is not wholly unusual for the GNA to take such a position. Part of the political legitimacy in new Libya rests on the claim that Gaddafi was a supporter of international terror, and the Lockerbie bombing must have been his evil work too.

In November of 2019, the GNA’s Minister of Justice Mohamed Lamlum, personally stood before the International Criminal Court (ICC) to ask Saif Al-Islam, Gaddafi’s son, to face trial before the ICC, tarnishing the very judiciary he is supposed to protect and defend. Gaddafi Junior is wanted by the ICC for his – broadly disputed – role in quelling the 2011 troubles that ended his father’s rule over Libya.

According to different legal experts, the Libyan state is obliged to help its citizens abroad by all means necessary, including through funding in the event of legal issues. The Lockerbie case is much more than a petty case about a Libyan citizen, but it concerns the entire nation, its history and its reputation. This should elevate the case to a “national cause” for all Libyans, according to Anwar.

Indeed, Libyans across the political spectrum now consider the Lockerbie case a national issue and that Libya must continue funding the legal team, just as it did before 2011.

During the Gaddafi era, the government even established a consulate in Glasgow to closely monitor the case, and to help Al-Megrahi’s family who had to relocate to Scotland to be near their father while in jail.

It is not clear if the GNA will honour its legal obligations towards its own citizen, Al-Megrahi, albeit posthumously, but the legal team is not surrendering. They have already established a liaising team inside Libya to follow up with the chaotic authorities in Tripoli.

A group of volunteers inside and outside Libya are gearing up to explore other funding avenues if the GNA continues to reject meeting its legal obligations. In any eventuality, Al-Megrahi’s reputation, and that of Libya, will soon be restored.

Appeal court accepts Megrahi lawyers' submissions regarding scope of appeal

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

On the 21st August the first procedural hearing in the posthumous appeal of Mr Al-Megrahi took place. The judges retired to give consideration to our grounds of appeal, to the extended grounds as well as an application for recovery of documents held by the UK Government.

The reputation of 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 justice system that these doubts can be addressed, but the only place to determine whether a miscarriage of justice did occur is in our appeal court.

We claimed in court that the Crown failed to disclose CIA cables in respect of a key crown witness on the basis of an undertaking given to the United States Government.

We claimed that there was systemic failure to disclose documents to the defence and that the Lord Advocate acted in a way which was incompatible with Mr Al- Megrahi’s right to a fair trial.

It was disappointing that court was told that the Secretary of State for Foreign and Commonwealth Affairs- Dominic Raab MP, had lodged a further Public Interest Immunity Certificate on the 17th August, after it was last done in 2008 by David Miliband. We believe the UK Government is refusing to declassify documents that we believe may support our ground of appeal that there has been a miscarriage of justice. 

The Government has claimed disclosure will cause ‘real harm’ to international relations and to the national security of the United Kingdom.

However, both the Megrahi family and many of the British families of victims supporting this appeal ask whose public interest and security is being protected, some 31 years after the bombing.

If the Government has nothing to hide, then it has nothing to fear from disclosing this material. We asked the Court for a specification for recovery of these classified documents and thus their disclosure.

The Judges the Lord Justice General, the Lord Justice Clerk, and Lord Menzies have now given consideration to our submissions as well as those of Crown Office and the Advocate General on behalf of the UK Government.

1. The court has authorised Ali Abdulbasit Ali Almaqrahi, the son of  the deceased Abdelbaset Ali Mohamed Al Megrahi. to institute an appeal on behalf of his father.

2. Has allowed the appellant to found the appeal on additional grounds which did not relate to one or more of the reasons contained in the Statement of Reasons by the SCCRC for making the Reference.

3.It has allowed ground (1) of appeal to be argued – the ground of appeal in relation to “no reasonable jury” could have returned the verdict that the Court did.

4. It has allowed ground (2) of appeal ‘non-disclosure’ to be argued but also includes the Crown’s failure to disclose CIA Cables – as set out in Operation Sandwood.

5. Importantly it is continuing consideration of part of our appeal on the new Public Interest Immunity Certificate – that is the protectively marked documents which the UK Government maintain should remain ‘classified’ and the Court will now appoint special counsel for this purpose to represent the appellant.

6. The Special counsel will have clearance from the security services and is entitled to see the confidential information and will appear at a private hearing which we may not attend. He/she must not disclose any of the confidential information to our legal team, except—with the permission of the court, and where permission is given, in accordance with such conditions as the court may impose.

7. November 24th  has been set as the date for the start of the appeal.

Today was an important milestone for the Megrahi family on the road to try to establish that the verdict against their father was a miscarriage of justice. There can never be a time limit on justice.

[RB: This is a very good outcome for the appellant. The court has not restricted the appeal to the (disappointingly narrow) grounds accepted by the Scottish Criminal Cases Review Commission. It has also not rejected out of hand the possible relevance of the documents in respect of which first David Miliband and now Dominic Raab have asserted public interest immunity on behalf of the UK Government. Unsurprisingly, however, it rejected proposed grounds of appeal based on the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the Crown”.]

Megrahi lawyers' statement on preliminary hearing and funding issue

[What follows is excerpted from a press release issued today by Aamer Anwar & Co:]

The reputation of Scottish Law has suffered both at home and internationally because of widespread doubts about the conviction of Mr Al Megrahi. (...)

We claimed today that the Crown failed to disclose CIA cables in respect of a key crown witness on the basis of an undertaking given to the United States Government.

We claimed that there was systemic failure to disclose documents to the defence and that the Lord Advocate acted in a way which was incompatible with Mr Al- Megrahi’s right to a fair trial.

 It is disappointing that the Secretary of State for Foreign and Commonwealth Affairs Dominic Raab  for has lodged a further Public Interest Immunity Certificate, which in essence means 31 years after the bombing, the UK Government still refuse to declassify documents that we believe indicate a miscarriage of justice.

Many of the families have asked whose public interest is being protected.

Today the court formally considered our Grounds of Appeal as well as extended grounds to be argued at a full hearing proposed for November 23rd.

The Judges will give their decision [later] on the extended grounds and the specification for recovery of documents.

This is an extremely tight timescale and the question of funding was raised with the court, as despite promises by the official Libyan Government over several years for funding support for the legal case, they have failed to do so.

We understand the matter rests with the Libyan Prime Minister and the Presidential Council since the 23rd July 2020.

We require equality of the arms of justice and we await the decision of the Libyan Government.

Many Libyans believe that their country was punished for a crime they did not commit and innocent man, Mr Al-Megrahi was incarcerated.

Today was an important milestone for the Megrahi family on the road to establishing that the verdict against their father was a miscarriage of justice.

Many of the British families of the victims supporting this appeal still ache for their loved ones and yearn for  truth and justice.

There can be no time limit on justice.

This is opportunity once and for all to have finality and closure.

We await the decision of the judges on the issue of the documents being declassified and extended grounds.

Lockerbie bombing: Megrahi family plea to access government documents

[This is the headline over a report published this afternoon on the BBC News website. It reads in part:]

Lawyers for the family of the only man convicted of the Lockerbie bombing have asked to see protected UK government documents on the case.

They said it was "in the interest of justice" that they saw the items, which are covered by a public interest immunity certificate.

The call came as an appeal against Abdelbaset al-Megrahi's conviction returned to court. (...)

Megrahi's family have requested a posthumous appeal against the conviction following his death in 2012.

A virtual hearing took place before the Lord President, Lord Carloway [RB: In criminal proceedings Lord Carloway is properly described as the Lord Justice General], the Lord Justice Clerk, Lady Dorian and Lord Menzies.

Claire Mitchell QC, representing the Megrahi family, said the defence should have access to the protected documents.

She told the court: "Given the passage of time, these documents should fall now to be disclosed."

Ms Mitchell also said there had been a "systemic failure of disclosure" over a range of other documents connected with the case.

However, advocate depute Ronald Clancy QC said the Crown had gone out of its way to be "transparent" and provide material.

He said part of the problem with the "systemic failure argument" was that no attempt was made to define what the proper system should have been at the time.

Ian Duguid QC, representing the Advocate General, said the Secretary of State for Foreign and Commonwealth Affairs continued to assert public interest immunity over the two protected documents.

Lord Carloway said the judges would issue a written decision on the proceedings in due course, while the full appeal court hearing is provisionally scheduled to start on 23 November before five judges.

[RB: A longer and slightly more informative report is now available here on the STV News website.]

Pre-hearing briefing by Megrahi family lawyers

[What follows is the text of a press release issued by Aamer Anwar & Co:]

A sitting will be held on Friday 21st August 2020 at 10.00am for the procedural hearing in an appeal against conviction following our successful application to refer the conviction of the late Abdelbaset Ali Mohmed Al-Megrahi to the High Court for determination. 

On Friday the case will presided over by Scotland’s most senior judge the Lord Justice General, Lord Carloway along with the Lord Justice Clerk, Lady Dorrian and Lord Menzies.

My firm of solicitors has instructed Claire Mitchell QC, Gordon Jackson QC, Clare Connelly and our Edinburgh Agent Rosemary Cameron as part of our legal team.

Our team will appear at the hearing together at the Glasgow Training Rooms, The Pentagon Centre, 36 Washington Street, Glasgow, G3 8AZ on Friday. We will arrive at approximately 9.05am and a statement will be issued following the hearing.

What is likely to happen at the hearing?

a. The hearing will take place by means of WEBEX, a video conferencing online application. The Judges will appear on Screen and our legal team will appear from the one facility in Glasgow. To be given access to the live proceedings please contact the head of Judicial Communications. [RB: To obtain permission for audio access to the hearing, email communications@scotcourts.gov.uk. Only bona fide journalists are accorded video access.]

b. We will need to move the Court to allow the case to proceed in the name of the son of the deceased i.e. Ali Al-Megrahi

c. We need to have the grounds of appeal received and allow the court to consider them.

d. We need to move the Court to consider granting us authority to see certain documents over which public interest immunity is asserted. Our argument is that Public Interest Immunity Certificate is not everlasting, it has been 31 years since the bombing and the UK Government represented by the Advocate General should justify why it is still asserting PII and denying full disclosure of this information to our team.

On the 21st December 1988, 270 people from 21 countries were murdered in the bombing of Pan Am Flight 103 over Lockerbie, the worst terrorist atrocity ever committed in the United Kingdom.

Since then the case of Abdelbasset Al-Megrahi the only man ever convicted of the crime has been described as the worst miscarriage of justice in British legal history. The Appeal was commenced in 2007 but following the diagnosis of terminal cancer it was suddenly abandoned in 2009.

It is widely claimed that the Lockerbie bombing was ordered by Iran and carried out by a Syrian based terrorist group in retaliation for a US Navy strike on an Iranian Airbus six months earlier, in which 290 people died. 

The reputation of the Scottish criminal justice system has suffered badly both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi; he was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.

A reversal of the verdict would have meant that the governments of the United States and the United Kingdom stand accused of having lived a monumental lie for 31 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit.

In June 2014 I lodged an application with the Commission (SCCRC) seeking to overturn the conviction of Abdelbaset Ali Mohmed al-Megrahi for murder. The application was submitted on behalf of the Immediate family members of the late Mr. Al-Megrahi along with Dr Jim Swire, Reverend John F Mosey and 22 other British relatives of passengers who died on board Pan Am Flight 103.

The Appeal Court in a judgment in July 2015, ruled that the relatives of Lockerbie bombing victims would not be allowed to pursue an appeal on behalf of the only man convicted of the crime. The families did not give up and in July 2017 a further application was lodged with the Commission on behalf of the Al-Megrahi family.

There can be never be a time limit on justice, the families who support this appeal have never given up their search for the truth.  On March 11th 2020, the Scottish Criminal Cases Review Commission decided that Mr. Megrahi’s case should be referred to the High Court for the determination.

The Commission believes that there may have been a miscarriage of justice in relation to the conviction, and that it is in the interests of justice to refer the case to the High Court.

The Commission believes that a miscarriage of justice may have occurred by reason of an ‘Unreasonable Verdict’ and the ground of ‘Non-Disclosure’. These grounds incorporate many of the issues we had identified in our application.

Unreasonable verdict

S106(3)(b) of the 1995 Act allows an appeal on the basis that a conviction was based upon a verdict that no reasonable jury, properly directed, could have returned. Despite the fact there was no jury here, that ground of appeal remains open to Mr Al Megrahi.

This ground relates to the Court’s finding that Mr Al Megrahi was the purchaser of items that were located within the suitcase which housed the bomb which destroyed Flight 103. Said items having been bought in a shop in Malta owned by Mr Tony Gauci.

The Commission have agreed with our submission that the Court could not reasonably find that Mr Megrahi was the purchaser of the items on the basis of the evidence which was before them. This finding was central to the Crown case against Mr Al Megrahi, in essence if he could not be linked to the items within the bomb suitcase, there would have been insufficient evidence to allow the Court to convict.

Mr Gauci’s statements and his evidence on identification were inconsistent and made in circumstances hugely prejudicial to Mr Al Megrahi.  His evidence regarding the date of the purchase of the items from his store “could – and should – not have been accepted as credible or reliable.”

The Commission have concluded that no reasonable Court could have accepted the evidence that Mr Megrahi was identified as the purchaser of the items from Gauci’s shop. That being the case, no reasonable Court could have convicted him.

Non-Disclosure

We submitted serious allegations of the failure of the Crown to disclose evidence which could have been key to the defence and interfered with the right to a fair trial.

The Crown failed in its duty of disclosure of relevant material to Mr Al Megrahi’s defence team prior to trial. This prejudiced the defence in their preparation and conduct of the trial to such an extent that the Commission have concluded that this may have given rise to a miscarriage of justice.

The Commission conclude that there should have been disclosure to the defence regarding:

* Information contained in the precognition statement provided by Mr Gauci to the Crown.
*A statement given by Sergeant Bussutil and a confidential police report regarding Mr Gauci’s exposure to photographs in a magazine prior to attending an identification parade.
*Reward monies paid to Mr Gauci and his brother. Documents have claimed that Scottish police officers and FBI agents had discussed as early as September 1989 ‘an offer of unlimited money to the Maltese shop keeper Tony Gauci.

Various reports have claimed that Tony Gauci received more than $2m in reward-money.

The Commission concluded that, when applying the Article 6 test regarding a fair trial under the ECHR, the failure by the Crown to disclose information regarding the photographs which had been viewed by Mr Gauci and the information on reward monies paid to the Gaucis, that a miscarriage of justice may have occurred.

Consent to disclose Information:

We are disappointed that the Scottish Government, the UK Government, the United States and other foreign governments have refused consent to disclose matters which at this time remain redacted in papers disclosed to us.

We have requested that the Lord Advocate abide by his duty to make full disclosure, but also insist that the UK Government do not retain a Public Interest Immunity Certificate thus concealing important information from the appellant’s legal team some 31 years after the actual bombing.

For the Megrahi family and many of the British families of the victims supporting the appeal, there is finally hope on what has been a long journey for truth and justice.


For further background please refer to:-

https://www.bbc.com/news/uk-scotland-south-scotland-51816857 (Lockerbie Appeal Bid Allowed)
https://www.bbc.co.uk/news/uk-scotland-south-scotland-43987079 (Lockerbie bomber's conviction to be reviewed)
https://www.dailyrecord.co.uk/news/politics/lockerbie-bombing-appeal-against-abdelbaset-22133295  (Lockerbie bombing: Appeal against Abdelbaset al-Megrahi's conviction lodged at High Court)
https://www.aljazeera.com/indepth/features/ghosts-lockerbie-stirred-prospect-posthumous-appeal-200316165937575.html
https://www.bloomberg.com/news/articles/2020-03-11/lockerbie-bomber-s-conviction-can-be-appealed-again-panel-finds
https://www.news24.com/news24/world/news/scottish-review-body-refers-lockerbie-bomber-case-for-appeal-20200311
http://www.heraldscotland.com/news/home-news/lockerbie-exclusive-we-publish-the-report-that-could-have-cleared-megrahi.2012036248
http://lockerbiecase.blogspot.co.uk/2012/03/today-sunday-herald-publishes-behind.html 
http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/10688067/Lockerbie-bombing-was-work-of-Iran-not-Libya-says-former-spy.html

Procedural hearing in the Megrahi family appeal

[What follows is excerpted from a report published today on the website of The Herald:]

Lawyers representing the family of Abdelbaset al-Megrahi, the Libyan man jailed for the 1988 Lockerbie bombing, are to begin a fight against his conviction on Friday - with a call for better transparency.

Megrahi, who died in 2012, was the only person convicted for the bombing which killed 243 passengers and 16 crew on Pan Am Flight 103 as it travelled from London to New York. Eleven people on the ground in Lockerbie also lost their lives in what was the biggest terrorist attack on British soil. (...)

Now an appeal is being started after a Scottish commission ruled a miscarriage of justice may have occurred.

On Friday a procedural hearing in an appeal against conviction will start presided over by Scotland’s most senior judge the Lord President – Lord Carloway along with the Lord Justice Clerk-Lady Dorian and Lord Menzies.

The hearing will take place by means of WEBEX, a video conferencing online application.

The judges will appear on screen and appeal legal team will appear from a facility in Glasgow.

Appeal lawyer Aamer Anwar (below)  on behalf of the family of the late Al-Megrahi said they need to move the court to consider granting authority to see certain "important" documents "over which public interest immunity is asserted".

He said: "Our argument is that public interest immunity certificate is not everlasting, it has been 31 years since the bombing and the UK Government represented by the Advocate General should justify why it is still asserting PII and denying full disclosure of this information to our team."

He added: "We are disappointed that the Scottish Government, the UK Government, the United States and other foreign governments have refused consent to disclose matters which at this time remain redacted in papers disclosed to us."

Mr Anwar has said the grounds for the family’s appeal were “substantial”. (...)

The Scottish Criminal cases review commission in March issued a 419-page decision saying that “further information” provided grounds for appeal.

The commission cited an “unreasonable verdict” and “non-disclosure” in the handling of the case. (...)

Mr Anwar's office says that it is widely claimed that the Lockerbie bombing was ordered by Iran and carried out by a Syrian based terrorist group in retaliation for a US Navy strike on an Iranian Airbus six months earlier, in which 290 people died.

Mr Anwar said: "The reputation of the Scottish criminal justice system has suffered badly both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi; he was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.

"A reversal of the verdict would have meant that the governments of the United States and the United Kingdom stand accused of having lived a monumental lie for 31 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit."

He said the Appeal Court in a judgment in July 2015, ruled that the relatives of Lockerbie bombing victims would not be allowed to pursue an appeal on behalf of the only man convicted of the crime.

The families did not give up and in July 2017 a further application was lodged with the Commission on behalf of the Al-Megrahi family.

"There can be never be a time limit on justice, the families who support this appeal have never given up their search for the truth," said Mr Anwar. "On March 11th 2020, the Scottish Criminal Cases Review Commission decided that Mr Megrahi’s case should be referred to the High Court for the determination.

Magrahi's legal team  submitted "serious allegations" of the failure of the Crown to disclose evidence which Mr Anwar's team say have been key to the defence and "interfered with the right to a fair trial".

Mr Anwar's team said the Crown "failed in its duty of disclosure" of relevant material to Mr Al Megrahi’s defence team prior to trial.

"This prejudiced the defence in their preparation and conduct of the trial to such an extent that the Commission have concluded that this may have given rise to a miscarriage of justice," they said.

[RB: In a blogpost on 13 August 2020 I speculated that the document being sought was the one in respect of which Foreign Secretary David Miliband had previously granted a public interest immunity certificate. It appears that I was right.]

Preliminary procedural matters in Megrahi appeal

The criminal court rolls for the week beginning 17 August 2020 have just been published.  The appeal brought by the family of the late Abdelbaset al-Megrahi features twice, in the following terms:

HIGH COURT OF JUSTICIARY

1st APPEAL COURT - 5 JUDGES - CRIMINAL APPEAL ROLL

under THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

A SITTING will be held on

FRIDAY 21ST AUGUST 2020

at Ten o’clock forenoon, for the disposal of the following:

PROCEDURAL HEARING IN AN APPEAL AGAINST CONVICTION

FOLLOWING UPON THE APPLICATION FROM THE SCCRC

1. Abdelbaset Ali Mohmed   John Pryde & Co,   HCA/2020 - 5/XM

Al Megrahi                           Edinburgh

(Other)  

***

HIGH COURT OF JUSTICIARY

1st APPEAL COURT - CRIMINAL APPEAL ROLL

under THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

A SITTING will be held on

FRIDAY 21ST AUGUST 2020

at Ten o’clock forenoon, for the disposal of the following:

APPLICATION FOR COMMISSION AND DILIGENCE FOR RECOVERY OF

DOCUMENTS

1. Abdelbaset Ali Mohmed    John Pryde & Co,   HCA/2020 - 5/XM

Al Megrahi                            Edinburgh

(Other) 

***

John Pryde & Co are Edinburgh solicitors acting as agents for the Glasgow-based solicitors for the Megrahi family, Aamer Anwar & Co. As previously announced, the proceedings will be conducted via video link.  

Under the first item on the roll, the court will probably seek to ascertain how far advanced is the preparation of the cases of both the appellant and the Crown; when the full appeal hearing can realistically be expected to start; and how long that hearing is estimated to last.  The second item on the roll is an application by the Megrahi legal team for documents to be made available to them that they claim are necessary to enable them properly to present the appeal. I do not know what documents are being sought, but they may well include the document in respect of which the UK Government has previously asserted public interest immunity.