Statement by Professor Köchler

Patrick Haseldine has kindly drawn my attention to the following statement issued on 25 February by Professor Hans Köchler:

Statement by Dr Hans Koechler, International Observer, appointed by the United Nations, at the Scottish Court in the Netherlands (Lockerbie Trial), on the withholding of supposedly secret evidence from the Defence by order of the Government of the United Kingdom

Upon conclusion of an information and consultation visit on international law issues to the Asia-Pacific region, Dr Hans Koechler today issued the following statement on the decision of the United Kingdom’s Foreign Secretary not to allow the disclosure of a document, provided by a “Foreign Government” that is related to the electronic timer device which supposedly triggered the explosion of a bomb on board Pan Am Flight 103:

1. The continued withholding of evidence related to the case of Abdelbaset Ali Mohmed Al Megrahi makes a new appeal actually impossible. Should the document in question not be made available, criminal proceedings under Scots Law will have to be terminated.
2. The behaviour of the British Government is in contravention to the commitment it made vis-à-vis the United Nations Organization prior to the adoption of Security Council resolution 1192 (1998) to enable a fair and independent trial of the two Libyan suspects in the Lockerbie case under Scots Law.
3. The invocation of “Public Interest Immunity” (PII) – unprecedented in the history of Scottish criminal justice – is tantamount to political interference into the Appeal Court’s conduct. It is obvious that criminal proceedings cannot be fair if the Defence is denied access to a piece of evidence (document) which has been revealed to the Prosecution.
4. Under the highly politicized circumstances of the Lockerbie Trial, the issuing of a PII certificate by the Foreign Secretary of the United Kingdom appears to be a rather desperate measure to influence the conduct of the court in a manner favourable to the British Government; it further strains the constitutional relations between Scotland and the United Kingdom.
5. The separation of powers between the Executive and Judiciary is a basic characteristic of the rule of law. In the present case, this principle is violated because of the outright interference of the British Government in a matter of the Scottish Judiciary.
6. The British Government’s interference makes Devolution of authority in matters of Criminal Justice to Scotland entirely meaningless. What is the meaning of “Devolution” if a Scottish Court is prevented from operating according to its own rules? Scots Law is not to be administered under the terms of a Protectorate. The crucial question will now be whether the Scots will be able to assert their (Constitutional) independence in Devolved matters.
7. It is to be hoped that the Scottish Judges will uphold the independence of the Judiciary and will reject the British Government’s interference. A court of law is transformed into a political body should the Judges allow this kind of interference.
8. The persistent refusal of the UK Government to allow the disclosure of vital evidence to the Defence points into the direction of a cover-up. In the context of the irregularities at the Lockerbie trial and appeal in the Netherlands (described in the undersigned’s reports of 2001 and 2002), this development demonstrates the need for an independent investigation under a United Nations mandate – especially since the Scottish Criminal Cases Review Commission has declared that a “miscarriage of justice” may have occurred.
9. The convicted Libyan national has a right to a genuine judicial review of his verdict outside the confines of international realpolitik. In June 2007 the Scottish Criminal Cases Review Commission referred his case back to the High Court of Justiciary for a second appeal. If appeal proceedings are now made impossible due to the British Executive’s interference, Mr al-Megrahi will be denied his right to fair trial under the European Convention on Human Rights and Fundamental Freedoms.

Los Angeles, 25 February 2008
Dr Hans Koechler

[The official version of the statement, with typographical errors corrected, is to be found at http://i-p-o.org/Lockerbie-statement-koechler-25Feb08.htm]

Projected mechanism to avoid Scotland-UK conflicts

The Scotsman today reports that new committees involving ministers from the Scottish and UK Governments are to be set up to avoid conflicts and misunderstandings such as that which arose recently over the application to Abdelbaset Megrahi of the UK's new prisoner transfer agreement with Libya. The article reads in part:

"A new cross-border body is to be created to settle disputes between Holyrood and Westminster, The Scotsman has learned.

"Ministers are drawing up plans for a joint committee to arbitrate between the devolved administrations and the UK government on domestic matters.

"The move is intended to clear the air between London and Edinburgh, amid an increasing number of acrimonious disputes between the Scottish Government and the Labour administration at Westminster since Alex Salmond became First Minister last May.

"The most serious was in June last year when Mr Salmond accused Tony Blair, prime minister at the time, of ignoring the Scottish legal system by doing a deal with Libya over the possible transfer of the Lockerbie bomber to the North African country.

"And just this week, Jacqui Smith, the Home Secretary, provoked an angry reaction from Scottish ministers on two separate issues.

"First, Holyrood ministers called on Ms Smith to clarify her anti-terrorism plans amid warnings that the Home Secretary was preparing to trample on the Scottish legal system.

"Then she announced plans to deprive drug addicts of their benefits, without consulting the Scottish Government.

"Privately, Scottish ministers were furious about both incidents, believing that the Home Office pays little or no attention to Scots law and devolved issues when drawing up its policy plans."

For the full text of the lengthy article, see
http://news.scotsman.com/latestnews/Toplevel-meetings-will-open-door.3823911.jp

Ludwig de Braeckeleer -v- Richard Marquise

OhMyNews International today features an article by Dr De Braeckeleer entitled “Lockerbie: FBI investigator debates OMNI reporter” which takes the form of a debate between him and Richard A Marquise, who headed the FBI investigation into the destruction of Pan Am 103, about the views expressed by Dr De Braeckeleer in his earlier article “Lockerbie: chronicle of a death foretold” (see http://english.ohmynews.com/articleview/article_view.asp?menu=c10400&no=381652&rel_no=1 and http://lockerbiecase.blogspot.com/2008/02/lockerbie-chronicle-of-death-foretold.html). The article makes fascinating reading, and anyone interested in the Lockerbie case will have to read and absorb it. The full text of the debate is at
http://english.ohmynews.com/ArticleView/article_view.asp?menu=A11100&no=381904&rel_no=1&back_url=.

I make no secret of the fact that, in my view, no matter how pure and thorough the investigation into the Lockerbie tragedy may have been, the evidence presented at the trial simply did not warrant a conviction being returned against Abdelbaset Megrahi. See http://lockerbiecase.blogspot.com/2007/07/lockerbie-satisfactory-process-but.html
I remain convinced that this view will be vindicated in the new appeal that is currently under way.

Miliband has made Lockerbie appeal a mockery of justice

This is the headline over an editorial in today’s issue of The Sunday Herald. The paper is (justifiably) scathing about the UK Foreign Secretary’s having signed a public interest immunity (PII) certificate in an attempt to prevent disclosure of the document (relating to timers) that has been in the hands of the Crown since 1996 (before the Lockerbie trial) but which has not been divulged to the defence (as the Scottish Criminal Cases Review Commission believes it should have been). It expresses the view that it is outrageous for the UK Government to seek to prevent the Scottish Appeal Court having access to the foreign document even though the SCCRC took the view that a verdict reached in ignorance of it might have amounted to a miscarriage of justice. See
http://www.heraldscotland.com/default_content/12770332.Miliband_has_made_Lockerbie_appeal_a_mockery_of_justice/

The Sunday Herald also has an article on the same subject by John Bynorth. Its principal focus is the contrast between the Scottish Government’s volubility in criticizing the UK Government over the prisoner transfer issue and its silence when confronted by the UK Government’s attempt to interfere in Scottish criminal proceedings by denying the defence and the court access to a document whose disclosure an independent body (the SCCRC) has indicated is necessary for justice to be done. Tony Kelly (Abdelbaset Megrahi’s solicitor) is extensively quoted, as are Dr Jim Swire and myself. See
http://www.heraldscotland.com/default_content/12767528.Anger_over__apos_interference_apos__in_Lockerbie_appeal/

Patrick Haseldine and Hans Köchler

I am grateful to Patrick Haseldine for copying to me the following e-mail exchange between himself and Professor Hans Köchler, the United Nations appointed observer at the Lockerbie trial.

Dear Robert,

You will, I think, be interested to see my exchange of emails with Dr Hans Koechler, the United Nations Observer at the Pan Am Flight 103 bombing trial:

Date:	Fri, 22 Feb 2008 16:27:10 +0000 (GMT)
From:	"Patrick Haseldine"
To:	info@i-p-o.org

Dear Dr Koechler,

Deemed to be outside the remit or powers of the Prime Minister and Government, my latest petition to PM Gordon Brown (calling for the Counter Terrorism Command of the Metropolitan Police to be in charge of any new investigation into the Lockerbie bombing) has been rejected this week (http://petitions.pm.gov.uk/SAfricaTerrorism/).

The ePetitions team gave the following explanation for the rejection: Criminal investigations are instigated by the police, not by the Prime Minister. You should take your request to the police authorities.

I understand that it was Prime Minister Thatcher who decided early in 1989 that the original Lockerbie investigation should be controlled by the small Dumfries and Galloway force - in liaison with the US Federal Bureau of Investigation and involving British and US intelligence - rather than by a specialist national police unit based in London. I had hoped that Prime Minister Brown would reverse that decision for a new investigation, but it could be that the powers devolved in 1998 from the House of Commons to the Parliament in Edinburgh preclude him from doing so.

References supporting the text of the rejected petition can be found at the website of Professor Robert Black (http://lockerbiecase.blogspot.com/2008/01/patrick-haseldine-on-lockerbie.html).

Yours sincerely,

Patrick Haseldine

From:	"info@i-p-o.org" info@i-p-o.org
To:	patrick.haseldine
Date:	Fri, 22 Feb 2008 17:39:33 -0500

23 February 2008

Dear Mr. Haseldine!

Thank you for the information on the reply from the Prime Minister's office.

In view of the many revelations during the last two years in the English and Scottish media, the Scottish authorities should undertake an investigation into the handling of the Lockerbie case - and possible criminal misconduct - by the Scottish police and judiciary. The Scots have to demonstrate that they are capable to handle judicial matters properly.

Devolution in matters of criminal justice is meaningless if they are not able to assert their authority vis-a-vis the UK government. The High Court's decision on the disclosure of the "secret" document provided by a "foreign" government will be the litmus test.

With best regards

Hans Koechler

[Note by RB: The final paragraph of Professor Köchler's message sets out precisely what is at stake for the Scottish criminal justice system in the present appeal.]

Dr Swire on the UK Foreign Office's PII claim

In today’s issue of The Herald there is a letter from Dr Jim Swire (who attended Wednesday’s procedural hearing, as he had also the previous two). He calls on the UK Government to cease objecting on “national security” grounds to disclosure to Megrahi’s legal team of the document emanating from a foreign country (relating to timers) that was in the hands of the Crown before the Zeist trial but which was not divulged to the defence even though (according to the Scottish Criminal Cases Review Commission) it could have helped Megrahi’s defence.

Dr Swire’s letter rehearses the problems that have always existed about the timer evidence at the Lockerbie trial, and suggests that the UK Government could have ulterior motives for not wishing this matter to be clarified (which release of the mysterious document might do).

For the full text of the letter, see

http://www.theherald.co.uk/features/letters/display.var.2067864.0.Lockerbie_document_must_be_revealed.php

Press comment on third procedural hearing

The Press and Journal, a daily newspaper published in Aberdeen and serving principally the north-east of Scotland, published on 21 February an editorial criticising the UK Government for seeking to prevent disclosure of the mysterious document to Megrahi's legal team. The article reads in part:

"Even those who do not subscribe to conspiracy theories must now have real doubts about the safety of the conviction following the rather extraordinary lengths to which Westminster is going to avoid releasing an official document which would help al Megrahi's appeal.

"Scotland's Lord Advocate, Elish Angiolini, is quite happy to hand over the document, the contents of which have not been divulged, but the move is being blocked by the UK Government, which claims it would not be in the public interest to do so. This is a strange position to take, given that al Megrahi was tried under Scottish law for a crime committed in Scotland, and creates the impression that, for some reason, the powers that be in London do not want the truth to emerge."

For the full text, see
http://www.thisisnorthscotland.co.uk/displayNode.jsp?nodeId=149212&command=displayContent&sourceNode=149702&contentPK=19937714&folderPk=85910&pNodeId=149693

Third procedural hearing ... much as predicted

From what has appeared in the media about the third procedural hearing in the new Lockerbie appeal, it would appear that the arguments were much as had been anticipated in this blog on 19 February.

The most interesting feature of the proceedings is the confirmation of the hints given at the second procedural hearing that if it were up to the Lord Advocate, the head of the prosecution system in Scotland (and a member of the Scottish Government) the document could be made available to Megrahi’s legal team. It is the United Kingdom Government, in the shape of the Foreign Office (represented in Scottish legal proceedings by the Advocate General for Scotland, Lord Davidson of Glen Clova QC) that is claiming that the document should remain secret on the ground of public interest immunity. According to the Advocate General, the Foreign Secretary is of the view that non-disclosure of the document is required in the interests of national security. I may perhaps be forgiven for commenting that, in the light of the UK Government’s resort to “national security” arguments in its attempts to prevent disclosure of material pertinent to the decision to embark upon the Iraq invasion and in its approach to internal security measures in the “war” against terrorism, confidence in the UK Government’s assessment of the UK national interest must be pretty low.

The Court of Appeal, which has reserved its judgment (“made avizandum” in Scottish legal parlance) will now have to decide (a) whether it is competent for the UK Government to raise the issue of public interest immunity in Scottish criminal proceedings when the Scottish public prosecutor chooses not to do so (my prediction is that the court will rule in favour of the competency of the Advocate General’s plea) and (b) whether the “national security” argument outweighs the public interest in an accused person’s having access to all material that might assist in his defence (my prediction here is that the court will order the document to be made available to Megrahi’s lawyers).

The Guardian's account of the proceedings is to be found at http://www.guardian.co.uk/uk/2008/feb/21/lockerbie.scotland

And The Telegraph's is at
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/02/20/nlockerbie120.xml

For the serious Scottish media’s accounts of the procedural hearing, see
http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/7254822.stm
http://www.theherald.co.uk/news/news/display.var.2060826.0.Westminster_meddling_in_Megrahi_case.php
http://thescotsman.scotsman.com/scotland/Legal-row-breaks-out-over.3799673.j

Third procedural hearing

A full court day has been allocated on Wednesday, 20 February for the third procedural hearing in the appeal by Abdelbaset Megrahi. For an account of proceedings at the first two procedural hearings, see
http://lockerbiecase.blogspot.com/2007/10/procedural-hearing_11.html
and
http://lockerbiecase.blogspot.com/2007/12/second-procedural-hearing.html

The principal issue now to be discussed is the United Kingdom Government’s claim for public interest immunity (PII) in respect of disclosure of the document from a foreign country (not the United States of America) the failure to disclose which to the defence at the original trial was one of the reasons that the Scottish Criminal Cases Review Commission gave for concluding that Mehrahi’s conviction may have amounted to a miscarriage of justice.

PII is a doctrine that permits a party to legal proceedings or the Crown to claim that certain evidence, even though relevant to the issue that the court has to decide (eg the guilt or innocence of an accused person) should not be led in court because to do so would be detrimental to the public interest. There is, of course, a public interest in the fair administration of justice, and that usually means that any evidence which could help to demonstrate the accused’s innocence, should be made available to the court. But it is possible for the Government to argue that this aspect of the public interest is outweighed in a particular case by some competing aspect, such as the preservation of national security. What the court then has to do is to balance the competing public interests and decide which one prevails. In criminal cases, securing that the accused has a fair trial, which involves being able to lead all evidence that might assist in establishing his innocence, normally (but not always) is held to outweigh the Government’s claim for secrecy.

The aspect of public interest that the UK Government appears to be advancing in the present case in support of its claim for PII is the preservation of good relations with the foreign country from which the document in question emanates. The Crown says that it sought to obtain that country’s consent to its disclosure to Megrahi’s legal team for use in the appeal, but that permission was denied. What the Appeal Court has to decide on Wednesday is whether that is a good enough reason for continuing to deny Megrahi’s lawyers access to a document that the SCCRC thought of such importance that his failure to have access to it at the original trial meant that there might have been a miscarriage of justice.

[Because of a conference being held at Gannaga Lodge, I shall be unable to make further postings on this blog until at least Thursday 21 February.]

Prisoner transfer row rumbles on

Lucy Adams has yet another article in today's issue of The Herald about the row between the UK and Scottish Governments over the application of the Libya-UK prisoner transfer agreement to Abdelbaset Megrahi. She incorporates quotes from my postings on the subject on this blog. See
http://www.theherald.co.uk/news/news/display.var.2049775.0.Straw_in_row_over_Lockerbie_letters.php

Yet more on prisoner transfer

Both The Herald and The Scotsman follow up the story about prisoner transfer. Much is made of a letter by UK Justice Minister, Jack Straw, to Scotland's First Minister, Alex Salmond. In it, he stresses that the UK Government gave no undertakings to the Libyan Government about Abdelbaset Megrahi and confirms that the decision on repatriation, if Megrahi were to apply for it, would rest with the Scottish Government. But he goes on to remind the First Minister that any decision denying repatriation would be open to judicial review. Subtle, or what?

For Lucy Adams's article in The Herald, see
http://www.theherald.co.uk/news/news/display.var.2046568.0.Clash_over_Jack_Straws_secret_letter_on_Megrahi.php

and for that newspaper's editorial comment see
http://www.theherald.co.uk/features/editorial/display.var.2046488.0.Transfer_of_prisoners.php

And for some readers' letters on the subject, see
http://www.theherald.co.uk/features/letters/display.var.2046494.0.Families_of_Lockerbie_victims_have_a_right_to_be_informed.php

The Scotsman's coverage is at
http://thescotsman.scotsman.com/latestnews/Straw-Lockerbie-bomber39s-fate-may.3781347.jp

I suggest that the terms of this letter supply further corroboration, if more were needed, that the negotiations with Libya were conducted with Megrahi very much in mind. The UK negotiators, however, were either (a) unaware that the ultimate decision on transfer of Megrahi rested with the Scottish Government or (b) were aware of this but deliberately concealed the fact from their Libyan counterparts, whom they knew to be concerned, above all, with the position of Megrahi. The fact that the Scottish Government was not informed that the negotiations were taking place might perhaps be construed as evidence supporting alternative (a). For my part, I am not at all sure that gross constitutional ignorance is all that much less of a sin in the UK Foreign Office than dishonest concealment.

For a somewhat different perspective from The Telegraph, an English newspaper, see
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/02/15/nlockerbie115.xml

Prisoner transfer: Jack Straw speaks

Jack Straw, Lord Chancellor and Minister of Justice in the United Kingdom Government (and Foreign Secretary at the time of the Libya-UK prisoner transfer negotiations) has a letter published today in The Herald denying that any deal has been done with Libya regarding the repatriation of Abdelbaset Megrahi. A prisoner transfer agreement has been concluded with Libya, from which Megrahi is not specifically excluded, but any decision on whether he will benefit under it rests with the Scottish Government. See
http://www.theherald.co.uk/features/letters/display.var.2042935.0.No_deal_done_with_Libya_over_alMegrahi.php
and, for an article by Lucy Adams,
http://www.theherald.co.uk/news/news/display.var.2042957.0.Scottish_ministers_will_have_final_say_over_fate_of_Lockerbie_bomber.php

The BBC's coverage of the story can be found here:
http://news.bbc.co.uk/2/hi/uk_news/scotland/7244033.stm

None of what Mr Straw says is in any way controversial. But it avoids the issue: what were the Libyans led to expect and believe when the UK Foreign Office was negotiating the agreement; and why was the Scottish Government (host to the only Libyan prisoner in Britain about whom Libya is in any way concerned) kept in the dark? These issues are dealt with in earlier posts on this blog. See
http://lockerbiecase.blogspot.com/2007/12/libyan-prisoner-transfer.html
and
http://lockerbiecase.blogspot.com/2008/02/prisoner-transfer-again.html.

All quiet ...

My internet connection problems persist. But from such news website and blog searches as I have been able to conduct in rare stable periods, it appears that there has been a lull in Lockerbie-related activity. The next major event on the horizon is, of course, the third procedural hearing in the new appeal, which is due to take place on 20 February. I shall not be able to be present, but would greatly appreciate accounts of the proceedings (for publication here or not) from those who are.

Meanwhile, while things are quiet, why not visit Gannaga Lodge's website http://gannagalodge.blogspot.com/
and see what could await you in the Northern Cape?

Apology for lack of response to e-mails

I apologise for not responding to all of those who have e-mailed me over the past five or six days at the address given in the panel on the right. I have been unable to maintain an internet connection for longer than ten minutes at a stretch for almost a week. There is something dreadfully amiss with the telephone lines in the (very remote) part of the Northern Cape where I am situated. Along with other local computer users, I have raised the problem with TelkomSA. But I am not optimistic about a speedy solution. In the meantime, all I can do is soldier on and ask for readers' forbearance.

Dr Swire on the prisoner transfer issue

The following letter from Dr Jim Swire is published in today's issue of The Herald:

'A recent newspaper article claims that Mr Blair's already publicised "memorandum of understanding" (as Whitehall decided to call it) was really negotiated to secure a huge contract for BP in the Libyan oil industry.

'Readers will remember that even without knowledge of a cynical commercial reason for the agreement, there was concern as to its effect on Abdel Basset Ali al-Megrahi's position, and anger at the failure to consult the Scottish Government.

'We now hear Jack Straw has admitted that Megrahi's transfer to Libya to serve the rest of his sentence for the Lockerbie bombing was essential to the completion of the deal.

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'The Crown Office maintains there is no question of Megrahi being allowed to be repatriated while his second appeal is in process. It is clear this appeal could not proceed without embarrassing revelations emerging over evidence led at Zeist, and in the view of many, the prosecution case would fail.

'Megrahi is determined to clear his name. What is to stop the Crown now abandoning the case, thus serving "the national interest" (as exemplified by the Libya-BP deal)?

'At the last hearing in Edinburgh High Court the prosecution were still not prepared to divulge the contents of a document (from abroad) to the defence. This failure would be likely to mean that the court would have to declare a fair appeal impossible. Already the Crown were talking of obtaining public interest immunity (PIIs) certificates to "protect" the document from being divulged.

'Lockerbie relatives have bitter memories of threats of PII certificates being prepared against us. If the Crown abandons the case, or if the court cannot proceed without the document, Libya, Whitehall and BP would all be delighted. Abandonment would presumably result in the verdict being declared unsafe and overturned, in view of the Scottish Criminal Cases Review Commission's published view that the Zeist trial might not have been fair.

'Scotland, her government and her justice system would have been used as an expendable tool to achieve a politically, and now commercially, convenient stitch-up. The relatives would see that their legitimate interests in seeking to find out who really murdered their loved ones and why their families were not protected, had again been treated with cynical derision, this time on the altar of profit.

'Have we really sunk so low?'

See
http://www.theherald.co.uk/features/letters/display.var.2018172.0.Losers_in_Lockerbie_and_Libyan_oil_deal.php