The psychology of the USS Vincennes incident

A fascinating long extract from cognitive psychologist Viki McCabe’s recent OUP book Coming to Our Senses: Perceiving Complexity to Avoid Catastrophes has just been published on the UTNE website. The extract is headed Structural Perception in the USS Vincennes Incident and deals with the errors in perception by the captain of the ship that led to the shooting down of Iran Air flight 655, and what caused those errors. The following are brief extracts, but the whole piece deserves to be read:]

At 9:54 am on July 3, 1988, the US Navy cruiser Vincennes mistakenly shot down Iran Air’s Flight 655, killing all 290 people on board. It was the ninth worst incident in aeronautical history and to make it even worse, the decision that led to these deaths was based on a theory of the situation rather than on supporting evidence. (...)

When this incident began, the Vincennes was in Iranian territorial waters in violation of international law and had been mixing it up with several Iranian gunboats. At 9:47 a.m., a distant blip—an airplane lifting off from Bandar Abbas airport—was picked up by the Vincennes’ radar, whose crew responded immediately with a standard Identification Friend or Foe (IFF) query. They received a Mode 3 Commair response, which indentified the plane as a commercial airliner. But during the gunboat fracas circumstances on the Vincennes had become chaotic, and in the confusion the crew ended up providing mixed messages—one speculating that the blip could be an enemy F-14 fighter jet and another insisting the blip was a civilian plane.

“In the cramped and ambiguous combat environment of the Persian Gulf…the captain chose to rely on his own judgment.” He reportedly ran a simulation of the situation in his mind where he tried “to imagine what the pilot was thinking, what the pilot’s intent was.” His belief—that without direct evidence, we can nonetheless deduce what someone whom we do not know and cannot see is planning to do—could qualify as magic thinking. Yet without checking further, the captain developed the theory that the plane was an F-14 fighter and that it was diving directly at the Vincennes.

A simulation is not the situation itself. It is only a theory of the situation. A key point is that no one else actually saw this theorized threat. In fact, a crew member standing right behind the captain later “testified that he never saw indications that the aircraft was descending.” Further, the commander of a nearby frigate, the USS Sides, reported that his radar showed an ascending, not a descending plane. That plane was not only much larger than a fighter jet, but it was also flying in Iranian airspace over Iranian territorial waters on its regularly scheduled twice-weekly flight from Tehran, Iran to Dubai, United Arab Emirates via Bandar Abbas, Iran. The radar-tracking systems of the Sides and the Vincennes both covered that same airspace. When the record of the Vincennes’ tracking system was later reviewed, the information it showed was found to be identical to the one from the USS Sides. How was it that the captains of these two ships reported seeing such different situations? (...)

University of Michigan psychologist Richard Nisbett testified before Congress that both the Vincennes’ captain and his crew suffered from “expectancy bias.” Expectancy bias occurs when people expecting something to happen allow this to distort their view of what is actually happening to match their expectations. Nisbett proposed that because the Vincennes’ crew believed the blip was a hostile plane, they failed to see the ascending Airbus. Instead they apparently imagined a descending enemy fighter. But expectations, like simulations, are similar to theories. All three are mental versions of situations as opposed to perceptions that reveal the situations themselves. In other words, by pointing the finger at the people involved and their possible propensities to see what they expected to “see” instead of what was actually there, Nisbett overlooked the more basic role that substituting a cognitive for a perceptual process—a theory for actual evidence—played in promoting this event. We often forget that our cognitive processes lack windows on the world. They receive their information about what goes on outside ourselves from our perceptual systems. They then translate that complex intelligence into simpler symbolic forms that are often influenced by our preconceptions, theories, beliefs, and general worldview. Without such a theory to set the stage, the captain’s and the crew’s expectancy bias would have no ground upon which to play out.

The Navy compounded the situation by creating false videos to cover up what actually happened. The Iranians were enraged at such a maneuver and accused the United States of a “barbaric massacre” and “vowed to avenge the blood of their martyrs.” There have been unconfirmed rumors that to retaliate, the Ayatollah Khomeini retained a hit man who, on December 21, 1988, blew up Pan Am Flight 103 over Lockerbie, Scotland. On November 16, 2003, the International Court of Justice concluded that the actions of the Vincennes in the Persian Gulf were unlawful. The most important fact to take away from this dismal tale is that the outcome would have been very different if the captain and crew of the Vincennes had simply put their theories aside and paid more attention to the information on the radar screen. That information revealed the true structure of this complex event in which the location of the blip, the commercial airspace on the radar, and the ascending Airbus in the sky were linchpin components.

JFM's allegations of criminal misconduct: a "progress" report

[The two documents reproduced below are (1) a history of the official response to Justice for Megrahi’s allegations of criminal misconduct in the Lockerbie investigation, prosecution and trial; and (2) an account of a meeting held on 2 April between representatives of Justice for Megrahi and Police Scotland.]

1.  Chronology of events, from 13th September 2012 to 20th February 2014, covering the police investigation of the Justice for Megrahi allegations levelled at Crown, police and forensic officials

1. On 13 September 2012, JFM submitted a private and confidential letter to Cabinet Secretary for Justice Kenny MacAskill in which we lodged 6 outline allegations against Crown, police and forensic officials involved in the Lockerbie investigation and the Zeist trial of Mr al-Megrahi for the downing of Pan Am 103. We added that he give ‘serious thought to the independence of any investigating authority that’ he appoint, and that any such authority should be someone from ‘outwith Scotland who [had] no previous direct or indirect association with Lockerbie or its ramifications’. Furthermore, we stated that a document detailing the evidence to support our allegations would be supplied to whomsoever was appointed as investigator.

2. On 25 September 2012, before any reply had been forthcoming from the Justice Directorate to our private and confidential letter to Mr MacAskill, The Scotsman newspaper published a response from the Crown Office in which we were pilloried for having made “defamatory and entirely unfounded … deliberately false and misleading allegations” and suggested that we had accused “police officers [and] officials [of fabricating] evidence”. At no time have we accused anyone involved in the Lockerbie investigation or any subsequent legal process of fabricating any evidence.

3. On 8 October 2012, Mr Neil Rennick, Deputy Director of the Criminal Law and Licensing Division of the Justice Directorate, responded to our letter on behalf of Mr MacAskill. This response afforded us one choice, namely: to submit our allegations to Dumfries and Galloway Constabulary and, by dint of that, to COPFS for investigation. In other words, to two of the bodies that our allegations were being levelled against.

4. On 9 November 2012, we handed over our detailed evidence for the, by then 8, allegations to Dumfries and Galloway Constabulary for the attention of Chief Constable Patrick Shearer, SIO for the case.

5. Accompanying a letter dated 19 March 2013, an updated and expanded addendum to the allegations, which covered luggage positioning in container AVE4041, was received by Mr Shearer.

6. On 21 December 2012, Lord Advocate Frank Mulholland gave an interview with Mr Magnus Linklater in The Times (Scotland edition) in which he reiterated the COPFS criticisms of JFM published in The Scotsman (25 September 2012) adding that we had levelled criminal accusations against the Judges and/or the Lord Advocate involved in the Zeist process. It is plain from both our submission to Mr MacAskill and our subsequent detailed evidence that we had done no such thing.

7. It took until 16th April 2013, 5 months later, before we were invited to a preliminary meeting with Mr Shearer (DCC of Police Scotland by then). This meeting went no further than outlining the basic procedures that would be involved in the course of the investigation, ie: reading the evidence presented by JFM, information gathering, interviews etc. DCC Shearer also stated that we would not be privy to any report submitted by him to COPFS. For ourselves, we made it clear that whilst we would cooperate at all times with his investigation, we would be doing so under protest since we did not feel that the Police Scotland could be seen as a disinterested and independent authority in this matter. Moreover, we requested that we be supplied with regular updates on the progress of the investigation.

8. It took a further 4 months, with no intervening updates, before we received a second invitation to attend Cornwall Mount from DCC Shearer. The purpose on this occasion was to interview those of our membership who spoke to the individual allegations. These interviews were conducted on 16 and 19 August 2013. On 16 August, DCC Shearer told us that having identified a possible conflict between our allegations 5, 6 and 7 and the Crown's 'live and on-going' investigation, he had consulted the Crown Office on the matter and received authorisation to drop them from our investigation for the time being. When we asked him what the apparent conflict was, he refused to provide this information. He was then asked who the SIO for the Crown's investigation was: he also refused to provide an answer to this question. JFM provided him with answers to the questions he posed regarding the evidence for our other 5 allegations.

9. In a letter to the Justice Committee of the Scottish Parliament, dated 24 September 2013, for a Justice Committee being convened to consider JFM Petition PE1370 held on the same date, DCC Shearer stated that he was “confident that the deferment [of JFM allegations 5, 6 and 7] [would] only be a matter of weeks as [he then understood] that the point of conflict with the live investigation [would] then be resolved”. 

10. In early October 2013, DCC Shearer retired from Police Scotland.

11. On 4 November 2013, DCC Richardson informed the Justice Committee: “I have to advise you that the Senior Investigating Officer has confirmed to me that the conflict between the two investigations still exists and whilst no definite date can be provided when that situation will change, it is assessed as still being in weeks rather than months. The only undertaking that I can provide at this time therefore is to update you accordingly as and when that conflict has been resolved.”

12. From the date of Mr Shearer’s retirement until 14 January 2014, when JFM telephoned Chief Inspector Sturgeon of the Professional Standards Department of Police Scotland to ascertain who had been appointed as Mr Shearer’s replacement as SIO, we received no updates from Police Scotland. At the time of the phone call, Mr Sturgeon was unable to confirm who had been appointed and that a meeting was due to take place the following day, 15 January, to discuss such an appointment.

13. On 31 January, Chief Inspector Sturgeon received a ninth allegation and an addendum for allegation 8.

14. On 17 February 2014, JFM received notification from Detective Superintendent Stuart Johnstone that he had been appointed SIO of the JFM allegations. This he also submitted to the Justice Committee for the consideration of PE1370 to be held the following day, 18 January 2014. In his communication, he stated: “With regards to your [JFM’s] question as to whether there has been any change in relation to allegations 5, 6 and 7, I can advise that recent developments in the live investigation have resulted in the conflict previously highlighted by former Deputy Chief Constable Shearer remaining unresolved for longer than expected. It is currently anticipated the conflict will be resolved before the end of March.” Detective Superintendent Johnstone was also unable to supply any information regarding how many officers were currently working on the case or what stage the investigation was at. Nor was he confident of being able to provide us with definitive updates on these questions in the near future since these matters were under review.

15. In a letter to the Justice Committee from Chief Constable of Police Scotland Sir Stephen House dated 20 February 2014, Sir Stephen stressed that the current estimate for a resolution of the conflict between allegations 5, 6 and 7 and the live investigation was “still an estimate based on current information and may be impacted on depending on what further developments emerge in the case.” He also stated that, in relation to how many officers [had] been working on the allegations since Mr Shearer retired “the reality is that no further investigation could take place because of the conflict with the live investigation.”

2.  Tulliallan meeting between JFM representatives and Police Scotland.

In September 2012 JFM made eight criminal allegations to Dumfries and Galloway Police and on 1 April 2013 Police Scotland took over responsibility for their investigation. In January 2014 they were in receipt of a ninth allegation.

At various times over the 18 month period since the original report JFM has expressed dissatisfaction at the apparent lack of progress by the police in carrying out the investigation and the lack of feedback from them.

Police explanation for the delay indicated that certain of the allegations were in ‘conflict’ with an ongoing Crown Office/Police enquiry seeking evidence against Abdelbaset al Megrahi and possible others in relation to the downing of Pan Am 103 over Lockerbie. Unfulfilled promises that these difficulties would shortly be resolved were made at various times to JFM and the Justice Committee at the Scottish Parliament in relation to their ongoing consideration of a JFM petition for a public Lockerbie inquiry.

A meeting to examine JFM’s concerns and facilitate better liaison was held at Tulliallan Police College on 2 April 2014 between a JFM Liaison Group consisting of Len Murray, James Robertson and Iain McKie and Police Scotland Deputy Chief Constable Iain Livingstone and Detective Superintendent Stuart Johnstone.

In a full and frank discussion JFM expressed concern at the lack of progress of the investigation into their allegations and stated that they had no faith in the Crown Office to ensure an open and effective investigation. If mutual confidence was to be restored and maintained then there should be the opportunity for regular liaison. JFM undertook to be available as required to assist the ongoing investigation.

Police Scotland underlined the Chief Constable’s commitment to the investigation. Although there had been a hiatus in the enquiry they had taken the decision to establish major incident procedures with immediate effect. An enquiry team of selected officers is being appointed under Detective Superintendent Johnstone, whose full-time remit and responsibility is now the investigation into the allegations. Procedures, independent of the police, are in place to monitor, advise and validate procedures as the investigation proceeds. Close liaison would be maintained with the ongoing Crown Office/Police murder enquiry in relation to the downing of Pan Am 103 and it was anticipated that this co-ordination would increase. While the police would ultimately report to them, the Crown Office was neither party to nor being kept informed about the progress of the investigations which would be conducted robustly, in good faith and in an open and accountable way.

The JFM Liaison Group agreed to a Police Scotland proposal for a series of regular meetings where there would be an opportunity to meet and review. While offering their full co-operation JFM made it clear that as an organisation with a specific aim (ie ‘justice for Megrahi’) it reserved the right to challenge the police if it deemed this ongoing liaison to be obstructive rather than constructive, and that given the length of time that had already passed further unexplained or unreasonable delays in the investigation would not be acceptable.

The Liaison Group will provide updates for members as and when available.

Anniversary of removal of UN sanctions against Libya

Today is the ninth anniversary of the removal by the United Nations Security Council of sanctions against Libya over the Lockerbie affair. Thirteen members voted in favour; France and the United States of America abstained. The report on the BBC News website can be read here. The conditions for removal that the Security Council had imposed when sanctions were imposed included surrender of Megrahi and Fhimah for trial; acceptance by Libya of responsibility for the destruction of Pan Am 103; and payment of compensation to the relatives of the victims. The terms of the Libyan "acceptance of responsibility" can be read here. Posts on this blog relating to the compensation paid by Libya can be read here. Two senior officials of the Gaddafi regime are now on trial in Tripoli for their rôle in negotiating the compensation arrangements.

Cruel. Vainglorious. Steeped in blood. And now, surely, after more than four decades of terror and oppression, on his way out?

[This is the headline over an article by Robert Fisk in today's edition of The Independent. The first, eighth and ninth paragraphs read as follows:]

So even the old, paranoid, crazed fox of Libya – the pallid, infantile, droop-cheeked dictator from Sirte, owner of his own female praetorian guard, author of the preposterous Green Book, who once announced he would ride to a Non-Aligned Movement summit in Belgrade on his white charger – is going to ground. Or gone. Last night, the man I first saw more than three decades ago, solemnly saluting a phalanx of black-uniformed frogmen as they flappered their way across the sulphur-hot tarmac of Green Square on a torrid night in Tripoli during a seven-hour military parade, appeared to be on the run at last, pursued – like the dictators of Tunis and Cairo – by his own furious people. (...)

And if what we are witnessing is a true revolution in Libya, then we shall soon be able – unless the Western embassy flunkies get there first for a spot of serious, desperate looting – to rifle through the Tripoli files and read the Libyan version of Lockerbie and the 1989 UTA Flight 722 plane bombing; and of the Berlin disco bombings, for which a host of Arab civilians and Gaddafi's own adopted daughter were killed in America's 1986 revenge raids; and of his IRA arms supplies and of his assassination of opponents at home and abroad, and of the murder of a British policewoman, and of his invasion of Chad and the deals with British oil magnates; and (woe betide us all at this point) of the truth behind the grotesque deportation of the soon-to-expire al-Megrahi, the supposed Lockerbie bomber too ill to die, who may, even now, reveal some secrets which the Fox of Libya – along with Gordon Brown and the Attorney General for Scotland, for all are equal on the Gaddafi world stage – would rather we didn't know about.

And who knows what the Green Book Archives – and please, O insurgents of Libya, do NOT in thy righteous anger burn these priceless documents – will tell us about Lord Blair's supine visit to this hideous old man; an addled figure whose "statesmanlike" gesture (the words, of course, come from that old Marxist fraud Jack Straw, when the author of Escape to Hell promised to hand over the nuclear nick-nacks which his scientists had signally failed to turn into a bomb) allowed our own faith-based Leader to claim that, had we not smitten the Saddamites with our justified anger because of their own non-existent weapons of mass destruction, Libya, too, would have joined the Axis of Evil.

[A knowledgeable commentator on and recent visitor to Libya has just sent me an e-mail containing the following sentences:]

Looks like the Colonel is doomed, which can only be a good thing. In view of events in Libya, I’d like, if I may, to pose the following rhetorical question on your blog:

What’s the betting that, sometime in the next few weeks, the following happens:

1. In the burned out ruins of a Libyan government building, someone finds definitive documentary ‘proof’ that Libya and Megrahi were responsible for Lockerbie, and/or

2. A Libyan official reveals, ‘we did it’.

The official case is now so thin that only such concoctions can save it (although it’s also crossed my mind that a prisoner will come forward who says ‘Megrahi confessed to me' – another hallmark of paper-thin cases).

A shameful anniversary

Today is the ninth anniversary of the conviction of Abdelbaset Megrahi by the Scottish Court in the Netherlands. How much longer will it be before this stain is removed from the Scottish criminal justice system?

SNP slammed over refusal to go public with latest Megrahi health reports

[This is the headline over an article in today's edition of Scotland on Sunday. It reads in part:]

Officials are refusing to publish up-to-date medical reports about the health of the Lockerbie bomber, Abdelbaset Ali Mohmed al-Megrahi.

The reports, compiled by Megrahi's Libyan doctors, have been handed to East Renfrewshire Council as part of regular assessments the local authority is making on the bomber's licensed release.

The council's criminal justice social work team is in charge of monitoring Megrahi from his home in Tripoli and could, if the medical reports show an improvement in his health, ask him to return to jail.

East Renfrewshire Council claimed last week that the medical reports belonged to the Scottish Government's justice department, where they had been sent. But the Scottish Government then said it was up to East Renfrewshire to decide whether or not to release the reports, not them.

A spokesman said: "We have decided with East Renfrewshire that they should be the first point of contact. It is their responsibility."

An East Renfrewshire spokesman declared: "These reports contain personal information. They could be released only if Mr Megrahi agreed to it. It is the same as any other criminal justice case."

Opposition parties last night said all medical information about Megrahi should be placed in the public domain. (...)

Megrahi will this week begin his ninth week of freedom at his home in Tripoli. Reports about his health have varied, some suggesting he is getting frailer, others declaring there remains optimism in Libya that he may make a recovery.

A doleful anniversary

On 31 January 2001 the Scottish Court at Camp Zeist convicted Abdelbaset Megrahi of the murder of 259 people on board Pan Am 103 and eleven people on the ground in Lockerbie. Perhaps before the ninth anniversary this miscarriage of justice will have been rectified. But at the speed that the present appeal proceedings are progressing, I would not counsel you to hold your breath.

The wheels of justice...

... grind exceeding slow.

In my coverage on this blog of the tenth procedural hearing on 18 December 2008, I wrote the following:

'The remaining issue discussed was the timing of the next procedural hearing (to consider the further petitions for disclosure lodged on behalf of the appellant before the ninth procedural hearing on 27 and 28 November). Maggie Scott QC for Mr Megrahi proposed that it should be on a date between 21 and 23 January, it having been indicated by the court administrative office that all three of the judges were available then. Ronnie Clancy QC argued that this was, for various reasons, far too early for the Crown and that a date should be fixed in February or March. The Advocate General concurred. The court indicated that it would consider these submissions and intimate its decision on the date of the next hearing “in early course”.'

The dates fixed by the court for this procedural hearing are Wednesday 18th to Friday 20th February 2009.

Proceedings at tenth (public) procedural hearing

Today’s procedural hearing was largely concerned with fine-tuning the protocol drafted by the court regarding the appointment, powers and duties of the special counsel to be appointed in connection with the document relating to timers in respect of which the UK Foreign Secretary has asserted public interest immunity on grounds of national security and international relations.

This document has not been made public and so it is difficult for observers to form an opinion as to its contents or, indeed, to follow the submissions made by the appellant’s counsel and the Advocate General on behalf of the Foreign Secretary. However, the document has now been finalised and the person suggested by the appellant’s legal team has been appointed by the court to perform this function, subject to his (or her) successfully undergoing the necessary security vetting. The court urged the relevant authorities to carry out the vetting of the special counsel (and any solicitor appointed by him to assist in the performance of his duties) with the very highest urgency. The Crown and the Advocate General were instructed to prepare summaries of the submissions made by them at the closed hearing (from which the appellant’s lawyers were excluded) so that they can be handed over to the special counsel as soon as his vetting is successfully concluded. The appellant’s legal team indicated that they would be in a position fully to brief the special counsel by 23 January 2009.

The remaining issue discussed was the timing of the next procedural hearing (to consider the further petitions for disclosure lodged on behalf of the appellant before the ninth procedural hearing on 27 and 28 November). Maggie Scott QC for Mr Megrahi proposed that it should be on a date between 21 and 23 January, it having been indicated by the court administrative office that all three of the judges were available then. Ronnie Clancy QC argued that this was, for various reasons, far too early for the Crown and that a date should be fixed in February or March. The Advocate General concurred. The court indicated that it would consider these submissions and intimate its decision on the date of the next hearing “in early course”.

Still no obvious sign, therefore, that either the Crown or the Advocate General have revised their Fabian tactics in the light of the appellant's medical condition or any other factors.

Ninth (public) procedural hearing: second day (cont’d)

The appellant’s legal team and the Advocate General (representing the UK Government) had been unable to agree the whole terms of a protocol governing the role and functions of a special (security-vetted) counsel to protect the interests of the appellant in relation to the document(s) in respect of which PII has been asserted. In particular, the appellant’s view was that, while the special advocate was to be appointed by the court, the appellant should be allowed to nominate him or her. The Advocate General, Lord Davidson of Glen Clova QC, appearing in person, took the view that while the appellant should be entitled to make representations specifying objections to the court’s choice, he should have no right to suggest who that counsel should be.

The other main divergence of view related to what relations should exist between the special counsel once appointed and the appellant’s regular legal team. The Advocate General contended that, after the special counsel had been given access to the document(s), there should be no contact between him or her and the appellant’s lawyers (or indeed between him or her and anyone other than the court and the Advocate General). Ms Scott contended that the recognised principles applicable in England to special counsel, namely “minimum derogation” from the normal rights of an accused person or appellant and “maximum participation” of the appellant’s chosen legal representatives should apply and that the special counsel, so long as he or she did not divulge the contents of the document(s) in respect of which PII was asserted, should be free to consult whomever he or she thought might be helpful in the performance of his/her function of protecting the interests of the appellant.

The court indicated that, after having considered the submissions of the parties, it would draft a protocol which would settle these issues of principle. The parties, at a hearing yet to be fixed, would be given an opportunity to make representations on matters of detail, but not on the principles enshrined therein.

The Reuters report of the proceedings can be read here.

Ninth (public) procedural hearing: second day

The High Court this morning announced its decisions on the matters ventilated at yesterday’s hearing.

The court accepted the prioritisation of grounds of appeal advanced by the appellant, and ordered a four-week hearing on grounds 1 and 2 (unreasonableness, on the evidence, of the verdict) to be held in the spring of 2009. Written notes of argument are to be lodged by the appellant six weeks before the date eventually fixed and by the Crown four weeks before. As suggested by Maggie Scott QC for the appellant, the next chapter to be argued will be those parts of ground of appeal 3 (fairness of the trial) that relate to Tony Gauci. The Crown was ordered to provide written answers to this ground of appeal (directed particularly to the appellant’s assertions of fact) within eight weeks from today. The court will then decide how long a hearing will need to be allocated and when that hearing should take place.

The court accepted undertakings from the Crown to hand over to the appellant’s legal team the bulk of the witness statements by 12 December. In respect of those few assessed by the Crown possibly to give rise to public interest immunity issues, the Crown would submit them as soon as possible to the Advocate General who would by 23 January 2009 determine which, if any, gave rise to national security or international relations concerns which the court would require to adjudicate upon. All the rest would be handed over to the appellant.

The Crown undertook to make available to the appellant within eight weeks the UK previous conviction information relating to witnesses. In respect of non-UK convictions, the Crown would use its best endeavours to secure the information from the relevant foreign countries.

The court invited the former legal representatives of the appellant to comment on the grounds of appeal relating to defective representation at the trial and requested them to supply any relevant documentation not already handed over to the appellant’s present legal team.

Argument is continuing on a protocol governing the role of the “special advocate” to be appointed in relation to the mystery document in respect of which the UK Foreign Secretary has asserted public interest immunity.

Ninth (public) procedural hearing: first day

Today’s lengthy procedural hearing was taken up with (a) submissions on the appellant’s most recent petition for disclosure of material in the hands of the Crown; and (b) case management and timetabling.

As regards (a), the material in question is mainly the pre-trial witness statements of the more than 1100 witnesses who featured on the Crown’s list at the Zeist trial. The appellant’s lawyers claim that upwards of 800 of these statements have not yet been handed over. The Crown stated today that it was willing to do so, subject to any public interest immunity issues that might be raised by the Advocate General on behalf of the United Kingdom Government. The Advocate General’s counsel, Raymond Doherty QC, indicated that in the vast majority of cases there was unlikely to be any PII concern and that these statements could be handed over by the Crown within fourteen days. In respect of any few statements in respect of which the UK Government’s assessment was that PII issues arose, the matter would have to return to the court.

As regards (b) Maggie Scott QC for Megrahi asked that the Crown be ordered to answer in writing the appellant’s detailed grounds of appeal. This would serve the useful purpose of clarifying the issues of fact and law on which there was genuine dispute between the parties and of identifying the factual and legal issues on which the parties were at one. The Crown responded that this was not normal Scottish practice and questioned whether it would serve any beneficial function.

The appellant’s legal team had been asked for this hearing to prioritise their grounds of appeal and to indicate the order in which the court should be asked to address them. Ms Scott stated that the appellant wished first consideration to be given to grounds of appeal 1 and 2 relating to the reasonableness of the verdict (ie whether any reasonable tribunal, on the evidence led, could have convicted Megrahi). She stated that the appellant’s legal team would be in a position to argue these grounds in April 2009 and that she anticipated that perhaps four weeks of court time would be required. The next chapter to be addressed should be those portions of ground of appeal 3 relating to the evidence of the Maltese shopkeeper, Tony Gauci. Ms Scott tentatively suggested that this section of the hearing might be scheduled for July 2009 and that as much as eight weeks might be required.

Ms Scott also requested the court at this stage to forward the grounds of appeal to the lawyers who represented Mr Megrahi at the original trial, in order to give them an opportunity, if so minded, to respond to the issues raised and the criticisms made of them in ground of appeal 4 relating to defective or inadequate representation.

The Crown did not indicate any strong views on these prioritising and timetabling matters. The one particularly interesting thing that Ronnie Clancy QC for the Crown disclosed was that, as of today, the Crown did not concede that even if Tony Gauci’s evidence were wholly discredited there remained insufficient evidence to justify the conviction of Megrahi. This is a view that few legal observers share.

The hearing was continued until tomorrow (Friday). It is to be expected that the court will then issue its decision on most of the issues outlined above. The other matter to be dealt with tomorrow is the protocol governing relations between the appellant’s legal team and the special (security-vetted) advocate appointed to consider the mystery document(s) in respect of which the UK Foreign Secretary has already asserted public interest immunity and the non-disclosure of which formed one of the Scottish Criminal Cases Review Commission’s grounds for holding that a miscarriage of justice may have occurred. It is possible that when these matters are discussed tomorrow, the court will have to go into closed session.

The report on the BBC News website can be read here. The Herald's report of the proceedings can be read here. It appears to be the only Scottish or UK newspaper to provide any coverage. Like the BBC, it concentrates on the application for the criminal records of witnesses to be disclosed. Trust the British media to focus on the peripheral and inessential!

Ninth (public) procedural hearing

A further procedural hearing will take place in the High Court on Thursday, 27 November (and on Friday 28th, if more time is required). This hearing will consider (a) the protocol regarding the rôle of the special (security vetted) advocate which the parties were instructed to negotiate in relation to the mystery document in respect of which the UK Foreign Secretary claimed public interest immunity; (b) a further petition for disclosure of documents submitted by the appellant's legal team, along with any answers lodged by the Lord Advocate on behalf of the Crown and the Advocate General on behalf of the UK government; and (c) case management issues, including time-tabling and the order in which the appellant's grounds of appeal should be argued.

US transfers Libyan money to Lockerbie victims

The U.S. said Sunday it has begun transferring more than $500 million in Libyan compensation money to the families of American victims of the 1988 Pan Am 103 bombing over Lockerbie, Scotland.

More money is on the way to complete the settlement, but $504 million of $536 million to be distributed to the families was moved from the Treasury to a private account administered by Lockerbie families' lawyers on Friday, the top U.S. diplomat for the Mideast said.

David Welch spoke to reporters aboard Secretary of State Condoleezza Rice's plane as she returned to Washington from the Middle East. He said he expected the rest of the Lockerbie payments would be made soon as soon as administrative details were worked out.

The cash comes from a $1.5 billion fund for U.S. victims of Libyan-linked terrorism in the 1980s that Libya finished paying into last month. (...)

Libya's payment into the fund cleared the last hurdle in full normalization of ties between Washington and Tripoli. On Oct. 31, President Bush signed an executive order restoring the Libyan government's immunity from terror-related lawsuits and dismissing pending compensation cases. (...)

There has been a huge increase in interest from U.S. firms, particularly in the energy sector, in doing business in Libya, where European companies have had much greater access in recent years. Libya's proven oil reserves are the ninth largest in the world, close to 39 billion barrels, and vast areas remain unexplored for new deposits.

[From Matthew Lee, Associated Press]

Libya completes payments for US terror victims

Libya has paid $1.5 billion into a fund to compensate the families of American victims of Libyan-linked terror attacks in the 1980s, clearing a final hurdle to full normalization of ties between Washington and Tripoli, the State Department said Friday.

In exchange, under a deal worked out earlier this year, the Bush administration will restore the Libyan government's immunity from terror-related lawsuits and dismiss pending compensation cases, it said.

Spokesman Sean McCormack called it "a laudable milestone" giving "a measure of justice to families of U.S. victims of terrorism and clearing the way for continued and expanding U.S.-Libyan partnership."

The money will go into a $1.8 billion fund that will pay $1.5 billion in claims for the 1988 Pan Am 103 bombing over Lockerbie, Scotland, and the 1986 bombing of a German disco. Another $300 million will go to Libyan victims of U.S. airstrikes ordered in retaliation for the disco bombing. (...)

The final deposit had been expected in early September but was inexplicably delayed, angering some in Congress who have thus far refused to lift holds on the nomination of a new U.S. ambassador to Libya and funds for the construction of a new U.S. embassy in Tripoli.

A first partial payment to the fund was received on Oct. 9, just days after the opening of a U.S. trade office in Libya's capital and a historic visit there last month by Secretary of State Condoleezza Rice, who was the highest-ranking U.S. official to visit the country in more than 50 years. (...)

The developments come amid a huge increase in interest from U.S. firms, particularly in the energy sector, in doing business in Libya, where European companies have had much greater access in recent years. Libya's proven oil reserves are the ninth largest in the world, close to 39 billion barrels, and vast areas remain unexplored for new deposits.

[From Matthew Lee of Associated Press.

As this article on the Al Arabiya website makes clear, the compensation covers the families of all the victims of the Lockerbie disaster, not just the US ones.]

Administration of the Lockerbie Review

The ninth annual report of the Scottish Criminal Cases Review Commission, covering the period 1 April 2007 to 31 March 2008, was published on 1 July 2008. It contains a section, with the above title, on the Commission's work on the Lockerbie case, resulting in the reference of the case back to the Scottish Court of Criminal Appeal, written by its Chief Executive, Gerard Sinclair. The full annual report can be seen here, with the relevant section on pages 18 and 19 of the pdf document.