Saturday, 5 July 2008
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.
Thursday, 3 July 2008
Statement by Professor Hans Köchler
Lockerbie Appeal:
Is the insistence on the right to a fair trial absurd and illogical?
Scottish judiciary has to abide by the standards of the European Convention on Human Rights
Statement by Dr. Hans Köchler
Vienna, 3 July 2008
P/RE/20161c
According to reports in the Scottish media, Crown counsel Ronnie Clancy QC has branded as "absurd" and "illogical" demands that Abdelbaset Ali Mohmed al Megrahi's appeal before the High Court of Justiciary shall not be restricted to the grounds of appeal given by the Scottish Criminal Cases Review Commission (SCCRC).
On 28 June 2007 the SCCRC had announced its decision to refer Mr al Megrahi's case back to the High Court of Justiciary for a new appeal. The Commission had given six reasons for its decision some of which it kept secret upon announcement. Obviously (and not only in view of its "secretive" nature), the list of grounds given by the SCCRC cannot be considered as an exhaustive enumeration of all possible grounds of appeal. The grounds given by the SCCRC are simply those that led that body to suspect a miscarriage of justice. The reasons revealed by the SCCRC to the public are almost identical to the points I had raised in my trial and appeal reports (in 2001 and 2002 respectively) which I had submitted to the United Nations.
Contrary to the Crown's position, it is neither absurd nor illogical if an appellant expects an appeal court to hear additional grounds of appeal - if new information has indeed become available. Rather, it would be absurd and illogical to limit the appeal to a fixed number of grounds, i.e. - as regards the present case - to those grounds given in last year's decision of the SCCRC (whereby the evidence related to some of the grounds is still being kept secret).
In order to be fair, an appeal process must be comprehensive. Justice requires truth. Certainty "beyond a reasonable doubt" can not be established if the Defence is prevented from giving the grounds of appeal on the basis of the evidence that is available to it. A court's judgment must be based on arguments. To determine that certain issues and facts are excluded from being considered (because the presentation of some grounds of appeal is rejected by one party) invalidates the entire argumentative process.
A "fair trial" according to Art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention on Human Rights") requires that no one interferes into the competence of the Defence and that, accordingly, additional evidence that has become available is also heard. The limitation of the grounds of appeal is not only contrary to the rationale of a judicial review as such and, thus, intrinsically unfair, but it is also illogical if the goal of an appeal process is indeed a comprehensive review of the original verdict. There can be no rational argumentation of an appeal if the appellant is told what grounds he is allowed to raise and what not.
Rather, in terms of the labels used by the Crown counsel, it could be argued that the original verdict of the High Court of Justiciary was "absurd" and "illogical" since it declared one of the two Libyan suspects "guilty" and the other one "not guilty" - while the entire logic of the indictment was based on the theory of the two suspects having conspired together to ingest an explosive device at Luqa airport (Malta) to be transported in a piece of unaccompanied luggage to Frankfurt airport and from there on to Heathrow.
The effort at limiting the scope of the appeal by restricting the grounds that can be heard is especially serious in view of the British Government's insistence on withholding evidence from the Defence by means of a Public Interest Immunity (PII) certificate. Should the efforts of the Crown and the British Government succeed, the appellant would again be denied his right to a fair trial and will thus be entitled to seek redress from the European Court of Human Rights.
Dr Hans Köchler
Is the insistence on the right to a fair trial absurd and illogical?
Scottish judiciary has to abide by the standards of the European Convention on Human Rights
Statement by Dr. Hans Köchler
Vienna, 3 July 2008
P/RE/20161c
According to reports in the Scottish media, Crown counsel Ronnie Clancy QC has branded as "absurd" and "illogical" demands that Abdelbaset Ali Mohmed al Megrahi's appeal before the High Court of Justiciary shall not be restricted to the grounds of appeal given by the Scottish Criminal Cases Review Commission (SCCRC).
On 28 June 2007 the SCCRC had announced its decision to refer Mr al Megrahi's case back to the High Court of Justiciary for a new appeal. The Commission had given six reasons for its decision some of which it kept secret upon announcement. Obviously (and not only in view of its "secretive" nature), the list of grounds given by the SCCRC cannot be considered as an exhaustive enumeration of all possible grounds of appeal. The grounds given by the SCCRC are simply those that led that body to suspect a miscarriage of justice. The reasons revealed by the SCCRC to the public are almost identical to the points I had raised in my trial and appeal reports (in 2001 and 2002 respectively) which I had submitted to the United Nations.
Contrary to the Crown's position, it is neither absurd nor illogical if an appellant expects an appeal court to hear additional grounds of appeal - if new information has indeed become available. Rather, it would be absurd and illogical to limit the appeal to a fixed number of grounds, i.e. - as regards the present case - to those grounds given in last year's decision of the SCCRC (whereby the evidence related to some of the grounds is still being kept secret).
In order to be fair, an appeal process must be comprehensive. Justice requires truth. Certainty "beyond a reasonable doubt" can not be established if the Defence is prevented from giving the grounds of appeal on the basis of the evidence that is available to it. A court's judgment must be based on arguments. To determine that certain issues and facts are excluded from being considered (because the presentation of some grounds of appeal is rejected by one party) invalidates the entire argumentative process.
A "fair trial" according to Art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention on Human Rights") requires that no one interferes into the competence of the Defence and that, accordingly, additional evidence that has become available is also heard. The limitation of the grounds of appeal is not only contrary to the rationale of a judicial review as such and, thus, intrinsically unfair, but it is also illogical if the goal of an appeal process is indeed a comprehensive review of the original verdict. There can be no rational argumentation of an appeal if the appellant is told what grounds he is allowed to raise and what not.
Rather, in terms of the labels used by the Crown counsel, it could be argued that the original verdict of the High Court of Justiciary was "absurd" and "illogical" since it declared one of the two Libyan suspects "guilty" and the other one "not guilty" - while the entire logic of the indictment was based on the theory of the two suspects having conspired together to ingest an explosive device at Luqa airport (Malta) to be transported in a piece of unaccompanied luggage to Frankfurt airport and from there on to Heathrow.
The effort at limiting the scope of the appeal by restricting the grounds that can be heard is especially serious in view of the British Government's insistence on withholding evidence from the Defence by means of a Public Interest Immunity (PII) certificate. Should the efforts of the Crown and the British Government succeed, the appellant would again be denied his right to a fair trial and will thus be entitled to seek redress from the European Court of Human Rights.
Dr Hans Köchler
Lockerbie Appeal - To Crown it All
I am grateful to Robbie the Pict for drawing my attention to the following article in Private Eye of 27 June 2008.
'Unless the Scottish judiciary resists blatant meddling from Westminster, the forthcoming appeal of Ali Mohmed al-Megrahi, jailed for life for the Lockerbie bombing, is in danger of descending into fiasco.
'Not only is the Foreign Office trying to keep secret intelligence documents that are crucial to the Libyan's defence by claiming public interest immunity (PII) on them (see Eye 1201), but the Crown Office is now seeking to limit Megrahi's appeal too.
'Crown lawyers want the appeal restricted to the six grounds cited last year by the Scottish Criminal Cases Review Commission (SCCRC). Because one of those grounds relates to documents which the UK government wants kept secret, the United Nations special observer, Dr Hans Kochler, has already said the appeal looks more like an "intelligence operation" than a fair hearing.
'To try now to limit the scope of the appeal will underscore Kochler's belief and confirm the view of many, including some of the victims' families, that the government does not want the truth to emerge about how and why Pan Am flight 103 was blasted from the sky nearly 20 years ago, killing 270 people.
'The secret documents relate indirectly to the timing device alleged to have detonated the bomb and said to provide the crucial link to both Libya and Megrahi. Recent leaks to two Scottish newspapers suggest the documents are German in origin and cast doubt on the Libyan connection. Scotland on Sunday quoted a source who had seen the material saying it held "considerable detail" and "appeared to confirm that the method of attack was typical of a Palestinian terror cell in Germany".
'A Syrian-backed Palestinian terrorist cell operating out of Frankfurt was of course broken by German police two months before Lockerbie. Altitude sensitive bombs packed in cassette recorders were found in their flat. It was calculated that they would blow an aircraft up around 40 minutes after take off- spookily similar to the fate of Pan Am 103 after it left Heathrow.
'The Palestinians were the main suspects for the Pan Am bombing for well over a year - until the investigation suddenly switched to Libya and Megrahi with the purported discovery of a tiny fragment of circuit board said to come from a Swiss-made MST 13 timer.
'How the fragment was found and later identified by UK scientists and US investigators has always been highly contentious. Thus any evidence about the timer is central to Megrahi's defence. As well as seeking disclosure of the secret material, it is understood his lawyers want to introduce the results of independent forensic tests casting farther doubt on the evidence given about the timer - unless the Crown Office succeeds in limiting the scope of the appeal.'
'Unless the Scottish judiciary resists blatant meddling from Westminster, the forthcoming appeal of Ali Mohmed al-Megrahi, jailed for life for the Lockerbie bombing, is in danger of descending into fiasco.
'Not only is the Foreign Office trying to keep secret intelligence documents that are crucial to the Libyan's defence by claiming public interest immunity (PII) on them (see Eye 1201), but the Crown Office is now seeking to limit Megrahi's appeal too.
'Crown lawyers want the appeal restricted to the six grounds cited last year by the Scottish Criminal Cases Review Commission (SCCRC). Because one of those grounds relates to documents which the UK government wants kept secret, the United Nations special observer, Dr Hans Kochler, has already said the appeal looks more like an "intelligence operation" than a fair hearing.
'To try now to limit the scope of the appeal will underscore Kochler's belief and confirm the view of many, including some of the victims' families, that the government does not want the truth to emerge about how and why Pan Am flight 103 was blasted from the sky nearly 20 years ago, killing 270 people.
'The secret documents relate indirectly to the timing device alleged to have detonated the bomb and said to provide the crucial link to both Libya and Megrahi. Recent leaks to two Scottish newspapers suggest the documents are German in origin and cast doubt on the Libyan connection. Scotland on Sunday quoted a source who had seen the material saying it held "considerable detail" and "appeared to confirm that the method of attack was typical of a Palestinian terror cell in Germany".
'A Syrian-backed Palestinian terrorist cell operating out of Frankfurt was of course broken by German police two months before Lockerbie. Altitude sensitive bombs packed in cassette recorders were found in their flat. It was calculated that they would blow an aircraft up around 40 minutes after take off- spookily similar to the fate of Pan Am 103 after it left Heathrow.
'The Palestinians were the main suspects for the Pan Am bombing for well over a year - until the investigation suddenly switched to Libya and Megrahi with the purported discovery of a tiny fragment of circuit board said to come from a Swiss-made MST 13 timer.
'How the fragment was found and later identified by UK scientists and US investigators has always been highly contentious. Thus any evidence about the timer is central to Megrahi's defence. As well as seeking disclosure of the secret material, it is understood his lawyers want to introduce the results of independent forensic tests casting farther doubt on the evidence given about the timer - unless the Crown Office succeeds in limiting the scope of the appeal.'
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.
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