Sunday, 29 June 2008
Caledonia, here I come ...
All good things come to an end. So with my six months in the wilds of the Northern Cape. I shall be back in Scotland on 2nd July and will re-commence posting then or shortly thereafter.
Monday, 23 June 2008
Must the new appeal be heard at Zeist?
Professor Hans Köchler, the UN appointed observer at the Lockerbie trial, has today issued a press release in the following terms:
‘In an article published in its issue of 15 June 2008, the Sunday Times reports that Prof Robert Black (Edinburgh) “said that the intergovernmental agreement no longer applied.” He is quoted with the statement that the Agreement “existed for the original trial and the appeal. This is now the second appeal …” and that “the agreement was spent.”
‘The statement that the Agreement “no longer applied” and “was spent” contradicts the precise wording of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish Trial in the Netherlands, concluded at The Hague, Netherlands, on 18 September 1998 and entered into force on 8 January 1999 (United Kingdom Treaty Series No 43 [1999]) in the following two respects:
‘(1) Art 3(4)(c) states that “the trial” “will be deemed to be ended when … any judgments of the Scottish Court following conviction have become final and conclusive.” As of today, this is clearly not the case since the Scottish Criminal Cases Review Commission has referred Mr. Megrahi’s case back to the High Court for a second appeal.
‘(2) Under “Definitions” in Art 1, it is expressly stated that the term “the trial” also means “any appeal by the accused following conviction, all in accordance with Scots law and practice.” Nowhere does the agreement distinguish between a “first” and a “second” appeal.
‘If one applies the provision of Art 16(2)(a) of the Agreement to the situation prevailing now – after a new appeal has been granted to the convicted Libyan national – the appeal proceedings can only be held in Scotland under the condition that he has given his “written agreement” and has confirmed that agreement “in person to the High Court of Justiciary in the presence of any counsel instructed by [him].”
‘As of today, the undersigned is not aware of such a written agreement given by Mr Megrahi in person to the High Court of Justiciary. An agreement conveyed by his defense counsel (should that have been the case) is not sufficient. Even in the case of Mr Megrahi’s having given his agreement according to Art 16(2)(a), the intergovernmental Agreement as such is still valid because it does not distinguish between “first” and “second” appeal.’
My response is as follows:
Dr Köchler is wrong in his interpretation of the intergovernmental agreement. It covered a trial and an appeal, both of which have now taken place. Extraordinary processes subsequent to the conclusion of trial and appeal (such as applications to the European Court of Human Rights in Strasbourg and applications to the Scottish Criminal Cases Review Commission and procedure flowing therefrom) are not covered by the extraterritorial provisions of the agreement, and no court would interpret the agreement as embracing them. Clearly, neither the Government of the Netherlands nor the Government of the UK would have agreed to maintaining the Scottish Court (and the Scottish prison) in existence at Zeist for an indefinite period (amounting potentially to decades) to cover the event of a successful application being made to the SCCRC at some indeterminate time in the future. Dr Köchler’s interpretation would entail precisely that unreasonable consequence and, for that reason alone, would be rejected by any court tasked with construing the agreement.
The expression “any appeal” in the context in which it is used, means “an appeal (if there happens to be one)”. A convicted person may choose not to appeal. “Any appeal” is a recognised way, in the English language, of expressing this element of indeterminacy. It does not envisage a plurality of appeals. If that had been the intention, the phrase used in art 1 would have been “any appeals (or 'all appeals') by the accused following conviction”.
It is noteworthy that Mr Megrahi’s current (and highly expert and experienced) legal team have deliberately decided that such a submission (that the extraterritoriality provisions of the intergovernmental agreement should apply to the new appeal) was not worth pursuing.
‘In an article published in its issue of 15 June 2008, the Sunday Times reports that Prof Robert Black (Edinburgh) “said that the intergovernmental agreement no longer applied.” He is quoted with the statement that the Agreement “existed for the original trial and the appeal. This is now the second appeal …” and that “the agreement was spent.”
‘The statement that the Agreement “no longer applied” and “was spent” contradicts the precise wording of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish Trial in the Netherlands, concluded at The Hague, Netherlands, on 18 September 1998 and entered into force on 8 January 1999 (United Kingdom Treaty Series No 43 [1999]) in the following two respects:
‘(1) Art 3(4)(c) states that “the trial” “will be deemed to be ended when … any judgments of the Scottish Court following conviction have become final and conclusive.” As of today, this is clearly not the case since the Scottish Criminal Cases Review Commission has referred Mr. Megrahi’s case back to the High Court for a second appeal.
‘(2) Under “Definitions” in Art 1, it is expressly stated that the term “the trial” also means “any appeal by the accused following conviction, all in accordance with Scots law and practice.” Nowhere does the agreement distinguish between a “first” and a “second” appeal.
‘If one applies the provision of Art 16(2)(a) of the Agreement to the situation prevailing now – after a new appeal has been granted to the convicted Libyan national – the appeal proceedings can only be held in Scotland under the condition that he has given his “written agreement” and has confirmed that agreement “in person to the High Court of Justiciary in the presence of any counsel instructed by [him].”
‘As of today, the undersigned is not aware of such a written agreement given by Mr Megrahi in person to the High Court of Justiciary. An agreement conveyed by his defense counsel (should that have been the case) is not sufficient. Even in the case of Mr Megrahi’s having given his agreement according to Art 16(2)(a), the intergovernmental Agreement as such is still valid because it does not distinguish between “first” and “second” appeal.’
My response is as follows:
Dr Köchler is wrong in his interpretation of the intergovernmental agreement. It covered a trial and an appeal, both of which have now taken place. Extraordinary processes subsequent to the conclusion of trial and appeal (such as applications to the European Court of Human Rights in Strasbourg and applications to the Scottish Criminal Cases Review Commission and procedure flowing therefrom) are not covered by the extraterritorial provisions of the agreement, and no court would interpret the agreement as embracing them. Clearly, neither the Government of the Netherlands nor the Government of the UK would have agreed to maintaining the Scottish Court (and the Scottish prison) in existence at Zeist for an indefinite period (amounting potentially to decades) to cover the event of a successful application being made to the SCCRC at some indeterminate time in the future. Dr Köchler’s interpretation would entail precisely that unreasonable consequence and, for that reason alone, would be rejected by any court tasked with construing the agreement.
The expression “any appeal” in the context in which it is used, means “an appeal (if there happens to be one)”. A convicted person may choose not to appeal. “Any appeal” is a recognised way, in the English language, of expressing this element of indeterminacy. It does not envisage a plurality of appeals. If that had been the intention, the phrase used in art 1 would have been “any appeals (or 'all appeals') by the accused following conviction”.
It is noteworthy that Mr Megrahi’s current (and highly expert and experienced) legal team have deliberately decided that such a submission (that the extraterritoriality provisions of the intergovernmental agreement should apply to the new appeal) was not worth pursuing.
Saturday, 21 June 2008
More on the Susan Lindauer saga
On 17 October 2007, I reproduced on this blog an article by Michael Collins about Susan Lindauer and her involvement in the Lockerbie affair: see "American Cassandra -- Susan Lindauer's Story". For further developments in this fascinating tale, see this recent article on Michael Collins's blog.
Friday, 20 June 2008
The scope of the appeal (continued)
As far as I can see from a trawl of the internet and the blogosphere, nothing has been published about the second, third and fourth days of the current procedural hearing about whether the scope of the new appeal should be limited to the issues on which the Scottish Criminal Cases Review Commission decided that there might have been a miscarriage of justice. However, an observer who was present in court during the submissions has informed me that his impression was that the Crown's arguments in favour of such limitation were subjected to rigorous scrutiny by the judges, and that the defence's arguments that there should be no such limitation (in accordance with existing appellate decisions) seemed to be more receptively entertained.
Wednesday, 18 June 2008
Normal service ...
... will be resumed as soon as possible. It is unlikely that I shall be in a position to make further posts until Friday 20th at the earliest.
An observer who was present in court yesterday during the first day of the current procedural hearing has commented in an e-mail to me: "Today in court the Crown was telling the High Court how they should interpret the SCCRC's referral criteria ('scope of appeal' is the subject). Viewing the body language suggested the court didn't like it."
The Herald's report on the proceedings can be read here.
The Scotsman's much shorter report can be seen here.
For the first time in all of the various Lockerbie trials and appeals, a woman judge, Lady Paton, was amongst those on the bench.
An observer who was present in court yesterday during the first day of the current procedural hearing has commented in an e-mail to me: "Today in court the Crown was telling the High Court how they should interpret the SCCRC's referral criteria ('scope of appeal' is the subject). Viewing the body language suggested the court didn't like it."
The Herald's report on the proceedings can be read here.
The Scotsman's much shorter report can be seen here.
For the first time in all of the various Lockerbie trials and appeals, a woman judge, Lady Paton, was amongst those on the bench.
Tuesday, 17 June 2008
The scope of the appeal
The procedural hearing that started today is not, after all, about the issue of disclosure of the mystery documents. It is about whether, as the Crown argues, Mr Megrahi’s new appeal should be limited solely to the grounds on which the Scottish Criminal Cases Review Commission referred his case back to the Criminal Appeal Court, or whether other issues can be ventilated as well. Existing appellate decisions in earlier cases have held that the grounds of appeal should not be limited to those issues accepted by the SCCRC. This is why the current procedural hearing is being heard by a bench of five judges: so that the earlier three-judge decisions can, if the court is so minded, be overruled.
According to Ronnie Clancy QC for the Crown, allowing the appeal to go beyond the specific matters on which the SCCRC referred the case back to the court would be “absurd” and “illogical”.
Brief accounts of today's proceedings can be found on the BBC News website and on the icDumfries website.
According to Ronnie Clancy QC for the Crown, allowing the appeal to go beyond the specific matters on which the SCCRC referred the case back to the court would be “absurd” and “illogical”.
Brief accounts of today's proceedings can be found on the BBC News website and on the icDumfries website.
Monday, 16 June 2008
Fifth (public) procedural hearing
The rolls of the High Court of Justiciary indicate that four days -- Tuesday 17th to Friday 20th June -- have been set aside for argument on disclosure of the mysterious documents relating to timers in respect of which the UK Government has claimed public interest immunity. At the last public procedural hearing at the end of May, the Advocate General representing the UK Government was ordered to produce the material to the court which would consider it in private session: see posts on this blog dated 27 to 30 May. This week's hearing, in open court, is to determine whether disclosure to Mr Megrahi's regular legal team should be ordered; or disclosure to security-vetted special counsel; or no disclosure at all.
Sunday, 15 June 2008
More on the presumed contents of the mystery document
The distinguished German journalist, Bo Adam, has a letter in today's Scotland on Sunday commenting on Marcello Mega's article in the newspaper on 1st June (referred to on this blog under the heading "Yet more on the mystery document" on the same date). Mr Adam's letter reads:
'The latest revelation on the Lockerbie bomb timer seems to be more confusing than helpful (News, June 1). The news that the Mebo timers were supplied to countries other than Libya tells us nothing. It would, of course, be of some interest to know what other countries where in possession of such timers but only if you really can link a country to some terrorists like the Popular Front for the Liberation of Palestine – General Command (PFLP-GC).
The suggestion that a Mebo timer was used by the PFLP-GC group in Neuss, Germany, would go against all common knowledge. The Neuss group is said by the German police to have used a different mechanism.
Let us assume that the secret document originates from German investigators. What could it contain?
1. The allegations by an Iranian defector. Why should they be secret?
2. Evidence about the Neuss group of the PFLP-GC. Their activities have already been dealt with in public, including the possible connection to Lockerbie. So why should that part be secret?
3. Additional findings concerning the Mebo timers and other details? Why top-secret?
Further on your article states that either the top-secret document contains evidence that "knocks down" some "pillars of the Crown's case" or in itself doesn't clear Abdelbaset Ali Mohamed al-Megrahi and doesn't prove anyone else was responsible (another source).
I would join Jim Swire in his fears that, while watching the dispute about the top-secret document, we are witnessing an attempt to derail a new screening of the Lockerbie trial.'
'The latest revelation on the Lockerbie bomb timer seems to be more confusing than helpful (News, June 1). The news that the Mebo timers were supplied to countries other than Libya tells us nothing. It would, of course, be of some interest to know what other countries where in possession of such timers but only if you really can link a country to some terrorists like the Popular Front for the Liberation of Palestine – General Command (PFLP-GC).
The suggestion that a Mebo timer was used by the PFLP-GC group in Neuss, Germany, would go against all common knowledge. The Neuss group is said by the German police to have used a different mechanism.
Let us assume that the secret document originates from German investigators. What could it contain?
1. The allegations by an Iranian defector. Why should they be secret?
2. Evidence about the Neuss group of the PFLP-GC. Their activities have already been dealt with in public, including the possible connection to Lockerbie. So why should that part be secret?
3. Additional findings concerning the Mebo timers and other details? Why top-secret?
Further on your article states that either the top-secret document contains evidence that "knocks down" some "pillars of the Crown's case" or in itself doesn't clear Abdelbaset Ali Mohamed al-Megrahi and doesn't prove anyone else was responsible (another source).
I would join Jim Swire in his fears that, while watching the dispute about the top-secret document, we are witnessing an attempt to derail a new screening of the Lockerbie trial.'
Lockerbie bomber hearing 'flawed'
The Sunday Times has picked up the story from The Firm which was mentioned on this blog on 13 June. The report, by Mark Macaskill, reads as follows:
'The UN’s observer in the trial that convicted a Libyan of the atrocity criticises the process of his appeal
The UN observer at the Lockerbie trial, Hans Köchler, has said that the Libyan convicted of the bombing will not get a fair hearing in Scotland.
Köchler, who advises the European Commission on democracy and human rights, has condemned government interference in the appeal of Abdelbaset Ali Mohmed al-Megrahi and said the hearing should be held in a neutral country.
His intervention follows an attempt by the British government to block the release of secret papers that could help clear the former Libyan intelligence agent convicted of the 1988 bombing, which claimed 270 lives.
Köchler said Megrahi’s case was handled “more like an intelligence operation than a genuine undertaking of criminal justice” and criticised MSPs for failing to hold inquiries into the downing of Pan Am 103 and its judicial aftermath. “It is almost trivial to say that a fair trial requires the availability of evidence to the prosecution and defence. Only in a totalitarian system would the executive power interfere in court proceedings and order the withholding of evidence.”
The Advocate General, on behalf of British ministers, had objected to disclosure of the documents to Megrahi’s legal team, lodging a public interest immunity plea.
Last month senior judges ordered that the papers should be released to the Court of Criminal Appeal in Edinburgh, where a panel of three judges will decide in camera whether they should be disclosed.
The documents, which are believed to hold information about the electronic timer that detonated the bomb, were not disclosed to the defence during al-Megrahi’s trial at Camp Zeist in the Netherlands. Megrahi lost an appeal in 2002, but the Scottish Criminal Cases Review Commission concluded that he might have been the victim of a miscarriage of justice and referred his case back to the court last year. One of the grounds for referral is believed to be the prosecution’s failure to disclose the secret document to Megrahi’s lawyers.
Köchler said the decision to hear the appeal in Scotland breached a concordat between the UK, the US and the Netherlands. “The fact that the new appeal proceedings take place in Scotland is not in conformity with the original intergovernmental agreement on the Lockerbie trial.” The proceedings totally lacked “transparency”, he said.
Last week, Robert Black, the Edinburgh law professor who helped to arrange Megrahi’s original trial in the Netherlands said the intergovernmental agreement no longer applied. It “existed for the original trial and the appeal. This is now the second appeal.” The agreement was spent, he said.
“Scotland made a mess of the trial and the appeal, and to an outside observer, that might lend justification to Köchler’s view. But I believe that this time it will be done properly and Megrahi will be released.”
Last year, Köchler said Scotland had the reputation of a “banana republic” because of its handling of the case.'
Scotland on Sunday runs a story along the same lines. It contains the following quote from doughty Lockerbie campaigner, Tam Dalyell:
"Hans Köchler is a good man and he is absolutely right with his criticisms. The behaviour of the Crown in this case has been disgusting and a disgrace to Scotland. I personally feel very responsible because I was one of those, along with others, who helped persuade the Libyans to hand over one of their nationals for trial."
Scotland on Sunday states that Professor Köchler's views were expressed in a letter written to The Firm. The letter was in fact written to Robbie the Pict who, with Köchler's permission, passed it to the magazine.
'The UN’s observer in the trial that convicted a Libyan of the atrocity criticises the process of his appeal
The UN observer at the Lockerbie trial, Hans Köchler, has said that the Libyan convicted of the bombing will not get a fair hearing in Scotland.
Köchler, who advises the European Commission on democracy and human rights, has condemned government interference in the appeal of Abdelbaset Ali Mohmed al-Megrahi and said the hearing should be held in a neutral country.
His intervention follows an attempt by the British government to block the release of secret papers that could help clear the former Libyan intelligence agent convicted of the 1988 bombing, which claimed 270 lives.
Köchler said Megrahi’s case was handled “more like an intelligence operation than a genuine undertaking of criminal justice” and criticised MSPs for failing to hold inquiries into the downing of Pan Am 103 and its judicial aftermath. “It is almost trivial to say that a fair trial requires the availability of evidence to the prosecution and defence. Only in a totalitarian system would the executive power interfere in court proceedings and order the withholding of evidence.”
The Advocate General, on behalf of British ministers, had objected to disclosure of the documents to Megrahi’s legal team, lodging a public interest immunity plea.
Last month senior judges ordered that the papers should be released to the Court of Criminal Appeal in Edinburgh, where a panel of three judges will decide in camera whether they should be disclosed.
The documents, which are believed to hold information about the electronic timer that detonated the bomb, were not disclosed to the defence during al-Megrahi’s trial at Camp Zeist in the Netherlands. Megrahi lost an appeal in 2002, but the Scottish Criminal Cases Review Commission concluded that he might have been the victim of a miscarriage of justice and referred his case back to the court last year. One of the grounds for referral is believed to be the prosecution’s failure to disclose the secret document to Megrahi’s lawyers.
Köchler said the decision to hear the appeal in Scotland breached a concordat between the UK, the US and the Netherlands. “The fact that the new appeal proceedings take place in Scotland is not in conformity with the original intergovernmental agreement on the Lockerbie trial.” The proceedings totally lacked “transparency”, he said.
Last week, Robert Black, the Edinburgh law professor who helped to arrange Megrahi’s original trial in the Netherlands said the intergovernmental agreement no longer applied. It “existed for the original trial and the appeal. This is now the second appeal.” The agreement was spent, he said.
“Scotland made a mess of the trial and the appeal, and to an outside observer, that might lend justification to Köchler’s view. But I believe that this time it will be done properly and Megrahi will be released.”
Last year, Köchler said Scotland had the reputation of a “banana republic” because of its handling of the case.'
Scotland on Sunday runs a story along the same lines. It contains the following quote from doughty Lockerbie campaigner, Tam Dalyell:
"Hans Köchler is a good man and he is absolutely right with his criticisms. The behaviour of the Crown in this case has been disgusting and a disgrace to Scotland. I personally feel very responsible because I was one of those, along with others, who helped persuade the Libyans to hand over one of their nationals for trial."
Scotland on Sunday states that Professor Köchler's views were expressed in a letter written to The Firm. The letter was in fact written to Robbie the Pict who, with Köchler's permission, passed it to the magazine.
Friday, 13 June 2008
UN Observer to the Lockerbie Trial says ‘totalitarian’ appeal process bears the hallmarks of an “intelligence operation”
I am grateful to Steven Raeburn for drawing my attention to a report with the above title on the news section of the website of the Scottish lawyers' magazine The Firm. The report can be read here.
Tuesday, 10 June 2008
Angiolini opposes Brown on terror arrests
Things have been quiet over the past week on the Lockerbie front. But today The Herald carries a story that is tangentially relevant. It reads in part:
‘Gordon Brown today suffers another heavy blow in his bid to secure a face-saving victory on extending pre-charge detention to 42 days with Elish Angiolini, the Lord Advocate of Scotland, coming out firmly against the proposal.
‘On the eve of the crunch vote on the UK Government's flagship Counter Terrorism Bill, which could have serious ramifications for the Prime Minister's political future, Scotland's chief legal officer, who is in charge of all prosecutions north of the border, has told The Herald that extending the period in which a terror suspect can be held without charge from the current 28 days to 42 is unnecessary.
‘Her opposition raises the prospect of a potential cross-border rift should the UK Government seek to extend the detention period involving a Scottish case.
‘Under the bill, a bid for such an extension has to be underpinned by a report from a chief constable and supported by the Lord Advocate; in England, it has to be supported by the Director of Public Prosecutions (DPP), currently Sir Ken Macdonald….
‘Angus Robertson, the SNP leader at Westminster, said: "This is an extremely significant opinion that all Scottish MPs should take very seriously. Now that the senior legal officers in Scotland and England take the same view - sceptical of the UK Government's plans - we should be listening very carefully to their voices."
‘Ms Angiolini, appointed in October 2006 under the previous Labour administration at Holyrood, is regarded as independent-minded and recently appeared at odds with her London colleagues.
‘In the Lockerbie case, she was prepared to reveal a document provided by an unnamed foreign power, which could potentially clear Abdelbaset Ali Mohmed al-Megrahi of the terrorist outrage.
‘However, Lord Davidson, the Advocate General who is Westminster's legal representative on Scottish matters, urged, at the behest of David Miliband, the Foreign Secretary, that a public immunity certificate be issued so the document was not made public on the grounds of national security.’
The full article can be read here.
‘Gordon Brown today suffers another heavy blow in his bid to secure a face-saving victory on extending pre-charge detention to 42 days with Elish Angiolini, the Lord Advocate of Scotland, coming out firmly against the proposal.
‘On the eve of the crunch vote on the UK Government's flagship Counter Terrorism Bill, which could have serious ramifications for the Prime Minister's political future, Scotland's chief legal officer, who is in charge of all prosecutions north of the border, has told The Herald that extending the period in which a terror suspect can be held without charge from the current 28 days to 42 is unnecessary.
‘Her opposition raises the prospect of a potential cross-border rift should the UK Government seek to extend the detention period involving a Scottish case.
‘Under the bill, a bid for such an extension has to be underpinned by a report from a chief constable and supported by the Lord Advocate; in England, it has to be supported by the Director of Public Prosecutions (DPP), currently Sir Ken Macdonald….
‘Angus Robertson, the SNP leader at Westminster, said: "This is an extremely significant opinion that all Scottish MPs should take very seriously. Now that the senior legal officers in Scotland and England take the same view - sceptical of the UK Government's plans - we should be listening very carefully to their voices."
‘Ms Angiolini, appointed in October 2006 under the previous Labour administration at Holyrood, is regarded as independent-minded and recently appeared at odds with her London colleagues.
‘In the Lockerbie case, she was prepared to reveal a document provided by an unnamed foreign power, which could potentially clear Abdelbaset Ali Mohmed al-Megrahi of the terrorist outrage.
‘However, Lord Davidson, the Advocate General who is Westminster's legal representative on Scottish matters, urged, at the behest of David Miliband, the Foreign Secretary, that a public immunity certificate be issued so the document was not made public on the grounds of national security.’
The full article can be read here.
Wednesday, 4 June 2008
Service interruption
I am off to Gannaga Lodge for the next few days. It is therefore unlikely that there will be further posts on this blog before Friday, 6 June at the earliest.
Tuesday, 3 June 2008
Response to Dr Swire's letter
The Herald today publishes a letter from Christopher Frew in response to the letter from Dr Jim Swire published yesterday. It reads:
"Further to Dr Jim Swire's detailed and dignified letter (June 2) on the Lockerbie appeal, there is one aspect which I think invites re-examination.
That is the Public Interest Immunity (PII) certificate signed by the Foreign Secretary, David Miliband, who has said that disclosing the two confidential documents would cause 'real harm' to national security.
The role of PII certificates in court proceedings seems to straddle uneasily the pillars of the judicial and the political structures. May I suggest merely that we keep in mind two precedents: first, the scathing comments by the judiciary on the blocking of the BAE inquiry, where political expedience was allowed to take precedence over due process; and, secondly, the case of the Matrix Churchill prosecutions, where four ministers (Clarke, Rifkind, Garel-Jones for Hurd and Heseltine) signed PII certificates.
Michael Heseltine, to his credit, made his reservations clear, both to officials and in the wording particular to his PII. The whole affair can be studied in various books, notably Truth Is A Difficult Concept: Inside the Scott Inquiry, by Richard Norton Taylor (Guardian Books, 1995).
An illuminating quote as to the government view comes in that case from an assistant Treasury solicitor, Andrew Leithead: 'It is damaging to the public interest to have any decision-making process expanded.'
Let us hope the judges have a more enlightened view as to the public interest."
The comments from members of the public that follow the letter are also worth reading.
"Further to Dr Jim Swire's detailed and dignified letter (June 2) on the Lockerbie appeal, there is one aspect which I think invites re-examination.
That is the Public Interest Immunity (PII) certificate signed by the Foreign Secretary, David Miliband, who has said that disclosing the two confidential documents would cause 'real harm' to national security.
The role of PII certificates in court proceedings seems to straddle uneasily the pillars of the judicial and the political structures. May I suggest merely that we keep in mind two precedents: first, the scathing comments by the judiciary on the blocking of the BAE inquiry, where political expedience was allowed to take precedence over due process; and, secondly, the case of the Matrix Churchill prosecutions, where four ministers (Clarke, Rifkind, Garel-Jones for Hurd and Heseltine) signed PII certificates.
Michael Heseltine, to his credit, made his reservations clear, both to officials and in the wording particular to his PII. The whole affair can be studied in various books, notably Truth Is A Difficult Concept: Inside the Scott Inquiry, by Richard Norton Taylor (Guardian Books, 1995).
An illuminating quote as to the government view comes in that case from an assistant Treasury solicitor, Andrew Leithead: 'It is damaging to the public interest to have any decision-making process expanded.'
Let us hope the judges have a more enlightened view as to the public interest."
The comments from members of the public that follow the letter are also worth reading.
"Insider" confirmation to Dr De Braeckeleer
Dr Ludwig de Braeckeleer reports on OhMyNews International (OMNI) that, only a very short time after the publication of his article identifying the source and contents of the document at the heart of the public interest immunity claim by the UK Government, an "insider" contacted him to confirm that his information was correct. He writes:
"Within hours of the publication by OMNI, an insider, who wishes to remain anonymous for security reasons, contacted me. This source confirmed that OMNI had correctly identified the document and its country of origin. The source also tells me that the nature of an earlier meeting would unambiguously reveal the political nature of the indictments against Libya."
The full article can be read here.
"Within hours of the publication by OMNI, an insider, who wishes to remain anonymous for security reasons, contacted me. This source confirmed that OMNI had correctly identified the document and its country of origin. The source also tells me that the nature of an earlier meeting would unambiguously reveal the political nature of the indictments against Libya."
The full article can be read here.
Monday, 2 June 2008
Dr Swire on public interest immunity
Today's issue of The Herald has a letter on the public interest immunity issue from Dr Jim Swire. It reads as follows:
"Our first encounter with the Scottish justice system was the fatal accident inquiry (FAI) held in Dumfries under the late Sheriff Principal John Mowat. Two findings stood out: 1. The aircraft destroyed at Lockerbie on which our families perished, and into which it appeared that a bomb had been loaded at Heathrow, had been under the "host state protection" of the UK authorities; 2. It was preventable.
At the end of 1991 indictments were issued against two Libyans; there was, so the Foreign Office told us, no evidence against any other country than Libya.
Within two weeks, and with the subsequent ending of a professional career, one of us went to visit Colonel Gaddafi. We told him we believed that Scottish criminal justice was among the fairest available, and that it was independent of the English-based government. We dared to explain that we felt US justice to be inappropriate because of the death penalty, and because of the enmity between the two nations, and that Libyan justice, though appropriate under the international aviation treaties of the time, would never be accepted as impartial by the international community. Our plea to him was to allow his citizens to face justice under Scots law.
It was not until after two further visits to Libya and following the intervention of many, including Professor Robert Black of Edinburgh with proposals as to how Scottish criminal law might best be used, plus that of the late Robin Cook as Foreign Secretary, and Nelson Mandela some years later, that our wish was granted, the result being the trial at Zeist in Holland.
Meanwhile, we had sought, in the light of the FAI findings and the known warnings received beforehand, an independent and far-reaching inquiry into why the UK government had failed to protect our families. The Thatcher government of the day refused to discuss the issue of an inquiry with us. Twenty years later, despite repeated refusals, we are still waiting for the government to face up to the 1988 failure by allowing a full inquiry.
Therefore, we bring some preconceptions from outwith the criminal justice arena about the role of the UK government in the whole Lockerbie disaster, and issues arising from the trial, though that trial has to do only with the accusations against the two Libyan individuals, one of whom was acquitted and the other of whom is currently in Greenock prison.
Doubts about the verdict against him meant the affair was referred to the Scottish Criminal Cases Review Commission (SCCRC) which, after some three years, decided the trial might have been unfair, partly because two documents given to the UK government by a foreign power had been available to the Crown and Dumfries and Galloway police from long before the trial, but not to the defence. The matter fell to be resolved by the High Court.
Following representations by the advocate-general to the [UK] government, the Foreign Office's response was to make the two documents the subject of a Public Interest Immunity (PII) certificate.
The two documents, the denial of which to the defence was crucial to the SCCRC's decision that the verdict might be unsafe, are still denied to those by whom the convicted Libyan wishes to be represented in the appeal. The Foreign Office, through this PII certificate, has attempted to block, in the name of the national interest, the very Scottish criminal judicial process we believed to be independent of it.
The documents refer to a preventable outrage. They were provided to Dumfries and Galloway police and the Crown Office from at least 1996. PII certificates have never impacted upon Scottish criminal justice in this way before. The High Court has now to decide whether to set aside the PII certificate, or whether the national interest is really sufficiently powerful that it should be served by some intermediate degree of security for the documents. To do this the court first has to see the documents. Last week the High Court issued an order to the advocate-general that they be supplied with the documents within seven days.
No doubt their lordships will reach a wise decision; their responsibility is both to the Lockerbie criminal appeal process, and to future perceptions as to the independence of our criminal justice system. It has always been part of our endeavour to force something good out of this atrocity, and we hope Scottish criminal justice will be enhanced, not harmed.
As for the relatives of the dead, some of us cast the Westminster government in a role far removed from impartiality. However seriously defective its full failure in 1988 may or may not have been, it has hidden it behind powerful protective screens. The repercussions, should the criminal verdict be overturned on appeal, might impact heavily upon the perceived degree of the government's failure to protect our families and promote the truth. Just what this PII certificate is supposed to benefit is unclear. Maybe the answer is simply the politicians and civil servants of the Foreign Office."
"Our first encounter with the Scottish justice system was the fatal accident inquiry (FAI) held in Dumfries under the late Sheriff Principal John Mowat. Two findings stood out: 1. The aircraft destroyed at Lockerbie on which our families perished, and into which it appeared that a bomb had been loaded at Heathrow, had been under the "host state protection" of the UK authorities; 2. It was preventable.
At the end of 1991 indictments were issued against two Libyans; there was, so the Foreign Office told us, no evidence against any other country than Libya.
Within two weeks, and with the subsequent ending of a professional career, one of us went to visit Colonel Gaddafi. We told him we believed that Scottish criminal justice was among the fairest available, and that it was independent of the English-based government. We dared to explain that we felt US justice to be inappropriate because of the death penalty, and because of the enmity between the two nations, and that Libyan justice, though appropriate under the international aviation treaties of the time, would never be accepted as impartial by the international community. Our plea to him was to allow his citizens to face justice under Scots law.
It was not until after two further visits to Libya and following the intervention of many, including Professor Robert Black of Edinburgh with proposals as to how Scottish criminal law might best be used, plus that of the late Robin Cook as Foreign Secretary, and Nelson Mandela some years later, that our wish was granted, the result being the trial at Zeist in Holland.
Meanwhile, we had sought, in the light of the FAI findings and the known warnings received beforehand, an independent and far-reaching inquiry into why the UK government had failed to protect our families. The Thatcher government of the day refused to discuss the issue of an inquiry with us. Twenty years later, despite repeated refusals, we are still waiting for the government to face up to the 1988 failure by allowing a full inquiry.
Therefore, we bring some preconceptions from outwith the criminal justice arena about the role of the UK government in the whole Lockerbie disaster, and issues arising from the trial, though that trial has to do only with the accusations against the two Libyan individuals, one of whom was acquitted and the other of whom is currently in Greenock prison.
Doubts about the verdict against him meant the affair was referred to the Scottish Criminal Cases Review Commission (SCCRC) which, after some three years, decided the trial might have been unfair, partly because two documents given to the UK government by a foreign power had been available to the Crown and Dumfries and Galloway police from long before the trial, but not to the defence. The matter fell to be resolved by the High Court.
Following representations by the advocate-general to the [UK] government, the Foreign Office's response was to make the two documents the subject of a Public Interest Immunity (PII) certificate.
The two documents, the denial of which to the defence was crucial to the SCCRC's decision that the verdict might be unsafe, are still denied to those by whom the convicted Libyan wishes to be represented in the appeal. The Foreign Office, through this PII certificate, has attempted to block, in the name of the national interest, the very Scottish criminal judicial process we believed to be independent of it.
The documents refer to a preventable outrage. They were provided to Dumfries and Galloway police and the Crown Office from at least 1996. PII certificates have never impacted upon Scottish criminal justice in this way before. The High Court has now to decide whether to set aside the PII certificate, or whether the national interest is really sufficiently powerful that it should be served by some intermediate degree of security for the documents. To do this the court first has to see the documents. Last week the High Court issued an order to the advocate-general that they be supplied with the documents within seven days.
No doubt their lordships will reach a wise decision; their responsibility is both to the Lockerbie criminal appeal process, and to future perceptions as to the independence of our criminal justice system. It has always been part of our endeavour to force something good out of this atrocity, and we hope Scottish criminal justice will be enhanced, not harmed.
As for the relatives of the dead, some of us cast the Westminster government in a role far removed from impartiality. However seriously defective its full failure in 1988 may or may not have been, it has hidden it behind powerful protective screens. The repercussions, should the criminal verdict be overturned on appeal, might impact heavily upon the perceived degree of the government's failure to protect our families and promote the truth. Just what this PII certificate is supposed to benefit is unclear. Maybe the answer is simply the politicians and civil servants of the Foreign Office."
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