This is the heading over an article on the website of the Scottish lawyers' magazine The Firm. It reads in part:
'Dr Jim Swire has hit out at the intrusion of the Foreign and Commonwealth Office into the administration of the Scottish Courts' handling of the Megrahi appeal, the procedural aspects of which are presently going through the High Court....
'"The acceptance of a Westminster-appointed and paid adjudicator, to dictate what parts of a document, already known in full to the prosecution, should now be allowed to be seen by the defence, hardly seems in line with the expressed independence of the Scottish legal system. Nor does it support 'equality of arms' - a supposedly basic tenet of any system claiming to dispense justice."
'"Intrusion of a politically originated 'Pubic Interest Immunity Certificate' in this way would be universally condemned outside that system as compromising its fairness."'
'"Justice cannot be seen to be being done among the dirty underwear of the F&CO, which can by no means be considered an objective and impartial intruder. The outcome of the Zeist trial was far too politically convenient, and the evidence offered far too suspect for that to be accepted."
'"We would do well to rise up against any attempt by the political elite to interefere in a criminal justice system. The public must have confidence that such a system can offer them protection when justified, even against the actions of their own government."
'"As Prof Koechler says, if their Lordships have made this decision, then an inquiry within Scotland and also by the United Nations internationally must be set up."
'"The suspicion that political aims have interfered with this case is not of course limited to the current question over this document and the PII certificate, it pervades many aspects of the Zeist trial itself and the first appeal held there, not least the presence of FBI/CIA operatives within the prosecution bench, as mentioned by Prof Koechler."'
The full article can be read here.
Monday, 22 September 2008
Sunday, 21 September 2008
Private Eye on The Conspiracy Files: Lockerbie
The current issue of Private Eye features an article entitled "Lockerbie: What Price Justice?" It reads in part:
'In BBC2’s recent Conspiracy Files documentary about the blowing-up of Pan Am flight 103 over Lockerbie, Richard Marquise, the FBI agent who headed the US side of the investigation 20 years ago, emphatically denied that any reward money had been paid to witnesses.
'In reply to a claim by Edwin Bollier, the boss of a Swiss company said to have manufactured the timing device used in the bomb, that he had been offered money by the FBI, Marquise said: "I can promise you we offered everyone who was involved in the case the exact same – nothing. They were never offered anything for their testimony, for their information concerning this case."
'Clearly this was a case of the left hand of American Law enforcement not knowing what the right was up to because Majid Giaka, the "star" witness at the trial of the two Libyans originally accused of the bombing, was handsomely rewarded by the CIA... [The Lockerbie] judges agreed that Giaka's evidence - that he saw the pair with a large brown case at Luqa, the Maltese airport - was "at best grossly exaggerated and at worst untrue", and "largely motivated by financial considerations".
'[The judges] relied on the only other evidence that incriminated Megrahi: his identification 11 years after the event by Tony Gauci, the Maltese shopkeeper who said he sold him the 13 items of clothing that were packed around the bomb. But Gauci had seen a picture of Megrahi only a few days before he made the crucial identification. This too was withheld from the original trial.
'Inconsistencies and doubts surrounding Gauci's identification now form one of the six grounds outlined by the Scottish Criminal Cases Review Commission (SCCRC) for concluding Megrahi may be the victim of a miscarriage of justice. There were unconfirmed reports that part of the concerns outlined in the confidential 80-page SCCRC submission were that Gauci too was paid a large amount of CIA "compensation".
'And for final confirmation that the Americans paid out money, the 'Reward for Justice' website of the US state department outlines the Lockerbie case. It says it has "paid more than $72m to over 50 people who have provided information that prevented international terrorist attacks or brought to justice those involved in prior acts."'
'In BBC2’s recent Conspiracy Files documentary about the blowing-up of Pan Am flight 103 over Lockerbie, Richard Marquise, the FBI agent who headed the US side of the investigation 20 years ago, emphatically denied that any reward money had been paid to witnesses.
'In reply to a claim by Edwin Bollier, the boss of a Swiss company said to have manufactured the timing device used in the bomb, that he had been offered money by the FBI, Marquise said: "I can promise you we offered everyone who was involved in the case the exact same – nothing. They were never offered anything for their testimony, for their information concerning this case."
'Clearly this was a case of the left hand of American Law enforcement not knowing what the right was up to because Majid Giaka, the "star" witness at the trial of the two Libyans originally accused of the bombing, was handsomely rewarded by the CIA... [The Lockerbie] judges agreed that Giaka's evidence - that he saw the pair with a large brown case at Luqa, the Maltese airport - was "at best grossly exaggerated and at worst untrue", and "largely motivated by financial considerations".
'[The judges] relied on the only other evidence that incriminated Megrahi: his identification 11 years after the event by Tony Gauci, the Maltese shopkeeper who said he sold him the 13 items of clothing that were packed around the bomb. But Gauci had seen a picture of Megrahi only a few days before he made the crucial identification. This too was withheld from the original trial.
'Inconsistencies and doubts surrounding Gauci's identification now form one of the six grounds outlined by the Scottish Criminal Cases Review Commission (SCCRC) for concluding Megrahi may be the victim of a miscarriage of justice. There were unconfirmed reports that part of the concerns outlined in the confidential 80-page SCCRC submission were that Gauci too was paid a large amount of CIA "compensation".
'And for final confirmation that the Americans paid out money, the 'Reward for Justice' website of the US state department outlines the Lockerbie case. It says it has "paid more than $72m to over 50 people who have provided information that prevented international terrorist attacks or brought to justice those involved in prior acts."'
Friday, 19 September 2008
Hospital visit for Megrahi
The Sun reports that Abdelbaset Megrahi today has an appointment at Inverclyde Royal Hospital. This apparently involves a major security operation. The full story can be read here and the aangirfan blog's concerns here.
The report in The Times can be read here. It contains the following paragraphs:
'This week it emerged that the Appeal Court in Edinburgh had decided to appoint a special defender to view confidential documents believed to contain information about the electronic timer used to detonate the aircraft.
'The court's decision came after an unprecendented hearing behind closed doors during which the UK Government argued that the documents should remain secret to avoid compromising security. David Miliband, the Foreign Secretary, claimed that handing over the documents would put national security at risk.
'It will be the first time that a special defender has been used in a Scottish court, although the process has been used in English courts during terrorism cases. Lord Hamilton, the Lord President [sic; should read "the Lord Justice General"], sat with Lords Kingarth and Eassie last month to decide whether al-Megrahi can obtain a fair trial without access to the documents.
'The Advocate General, Lord Davidson of Glen Clova, who represents the UK Government in the Scottish courts, asked the court to appoint a security-vetted lawyer to look at the documents on behalf of al-Megrahi's defence team before arguing which parts of the documents should be published.
'The final decision on the release of sections of the document would lie with judges. The court has not yet formally published its decision but Kim Howells, the Foreign Office Minister, has written a letter confirming that the court has decided to appoint a special defender.
'It is understood that al-Megrahi's legal team is planning to appeal against the decision to the Privy Council on the ground that the move would violate his human rights.
'Dr Hans Koechler, the United Nations special envoy to the trial in the Netherlands of the two Libyans accused of the Lockerbie bombing, criticised the development as “intolerable”. Dr Koechler said that it was “detrimental to the rule of law”.'
The Daily Mail has a long article with photographs, concentrating principally on the security arrangements and the cost of the visit. It also has quotes from Susan Cohen, the lazy tabloid journalist's first port of call for some juicy inflammatory copy. Why do UK journalists not seek the reactions of UK relatives, rather than the reaction of one specific US relative? The answer, I'm afraid, is clear: controversy sells newspapers and you wouldn't get controversy from UK relatives over medical treatment for Megrahi. Gutter journalism.
The report in The Times can be read here. It contains the following paragraphs:
'This week it emerged that the Appeal Court in Edinburgh had decided to appoint a special defender to view confidential documents believed to contain information about the electronic timer used to detonate the aircraft.
'The court's decision came after an unprecendented hearing behind closed doors during which the UK Government argued that the documents should remain secret to avoid compromising security. David Miliband, the Foreign Secretary, claimed that handing over the documents would put national security at risk.
'It will be the first time that a special defender has been used in a Scottish court, although the process has been used in English courts during terrorism cases. Lord Hamilton, the Lord President [sic; should read "the Lord Justice General"], sat with Lords Kingarth and Eassie last month to decide whether al-Megrahi can obtain a fair trial without access to the documents.
'The Advocate General, Lord Davidson of Glen Clova, who represents the UK Government in the Scottish courts, asked the court to appoint a security-vetted lawyer to look at the documents on behalf of al-Megrahi's defence team before arguing which parts of the documents should be published.
'The final decision on the release of sections of the document would lie with judges. The court has not yet formally published its decision but Kim Howells, the Foreign Office Minister, has written a letter confirming that the court has decided to appoint a special defender.
'It is understood that al-Megrahi's legal team is planning to appeal against the decision to the Privy Council on the ground that the move would violate his human rights.
'Dr Hans Koechler, the United Nations special envoy to the trial in the Netherlands of the two Libyans accused of the Lockerbie bombing, criticised the development as “intolerable”. Dr Koechler said that it was “detrimental to the rule of law”.'
The Daily Mail has a long article with photographs, concentrating principally on the security arrangements and the cost of the visit. It also has quotes from Susan Cohen, the lazy tabloid journalist's first port of call for some juicy inflammatory copy. Why do UK journalists not seek the reactions of UK relatives, rather than the reaction of one specific US relative? The answer, I'm afraid, is clear: controversy sells newspapers and you wouldn't get controversy from UK relatives over medical treatment for Megrahi. Gutter journalism.
Thursday, 18 September 2008
Court rules Lockerbie timer details to stay secret
This is the headline over an article by Lucy Adams in The Herald. The story reads in part:
'The Appeal Court in Edinburgh has decided to appoint a special defender to view confidential documents thought to contain vital information about the electronic timer that detonated the Lockerbie bomb.
'The decision follows an unprecedented hearing, held behind closed doors, at which the UK Government argued that revealing the documents would compromise security.
'The advocate general, who represents the UK Government in Scottish courts, asked the court to appoint a security-vetted lawyer who could look at the documents on behalf of the defence team of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing.
'This special defender would then argue which parts of the document should be published - although judges would make the final decision about how much, if anything, should be revealed.
'So far the court has not published its decision, but Foreign Office minister Kim Howells has written a letter confirming that the court has decided to appoint a special defender.
'It will be the first time such a course has been taken in Scotland, although some English courts have appointed special defenders to examine evidence in terrorism cases.
'There has been no official comment from Megrahi's legal team, although it is thought it is planning an appeal to the Privy Council, arguing that the move will violate his human rights.'
The full article can be read here.
[This was posted at 21.43, notwithstanding what appears immediately below.]
'The Appeal Court in Edinburgh has decided to appoint a special defender to view confidential documents thought to contain vital information about the electronic timer that detonated the Lockerbie bomb.
'The decision follows an unprecedented hearing, held behind closed doors, at which the UK Government argued that revealing the documents would compromise security.
'The advocate general, who represents the UK Government in Scottish courts, asked the court to appoint a security-vetted lawyer who could look at the documents on behalf of the defence team of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing.
'This special defender would then argue which parts of the document should be published - although judges would make the final decision about how much, if anything, should be revealed.
'So far the court has not published its decision, but Foreign Office minister Kim Howells has written a letter confirming that the court has decided to appoint a special defender.
'It will be the first time such a course has been taken in Scotland, although some English courts have appointed special defenders to examine evidence in terrorism cases.
'There has been no official comment from Megrahi's legal team, although it is thought it is planning an appeal to the Privy Council, arguing that the move will violate his human rights.'
The full article can be read here.
[This was posted at 21.43, notwithstanding what appears immediately below.]
More on the PII debacle
The BBC News website has picked up the story about the appointment by the Appeal Court of a special, security-vetted, advocate to view the documents in respect of which the UK Foreign Secretary has asserted public interest immunity. Reevel Alderson writes:
'The Appeal Court in Edinburgh is to appoint a special defender to view confidential documents wanted by the Lockerbie bomber in his appeal.
'It follows an extraordinary hearing held behind closed doors at which the UK government argued that revealing the documents would compromise security....
'The advocate general, who represents the UK government in Scottish courts, asked the court to appoint a security-vetted lawyer who could look at the documents on Megrahi's behalf.
'He would then argue which parts of the document should be published - although judges would make the final decision about how much, if any, should be revealed.
'So far the court has not published its decision, but in a letter seen by BBC Scotland, the Foreign Office minister Kim Howells says it has decided to appoint a special defender....
'Dr Hans Koechler, the United Nations special envoy to the trial in the Netherlands of the two Libyans accused of the Lockerbie bombing, criticised the development as "intolerable".
'In a BBC interview, Dr Koechler said it was "detrimental to the rule of law." He said: "In no country can the situation be allowed where the accused or the appellant is not free to have his own defence team, and instead someone is imposed upon him."'
The full text of the article can be read here.
The website of the Scottish lawyers' magazine The Firm also covers the story, under the headline 'Courts "go Soviet" in Megrahi case'. The article can be read here.
'The Appeal Court in Edinburgh is to appoint a special defender to view confidential documents wanted by the Lockerbie bomber in his appeal.
'It follows an extraordinary hearing held behind closed doors at which the UK government argued that revealing the documents would compromise security....
'The advocate general, who represents the UK government in Scottish courts, asked the court to appoint a security-vetted lawyer who could look at the documents on Megrahi's behalf.
'He would then argue which parts of the document should be published - although judges would make the final decision about how much, if any, should be revealed.
'So far the court has not published its decision, but in a letter seen by BBC Scotland, the Foreign Office minister Kim Howells says it has decided to appoint a special defender....
'Dr Hans Koechler, the United Nations special envoy to the trial in the Netherlands of the two Libyans accused of the Lockerbie bombing, criticised the development as "intolerable".
'In a BBC interview, Dr Koechler said it was "detrimental to the rule of law." He said: "In no country can the situation be allowed where the accused or the appellant is not free to have his own defence team, and instead someone is imposed upon him."'
The full text of the article can be read here.
The website of the Scottish lawyers' magazine The Firm also covers the story, under the headline 'Courts "go Soviet" in Megrahi case'. The article can be read here.
Wednesday, 17 September 2008
Press conference at Greshornish House
Courtesy of Cuillin FM, you can listen to the press conference held at Greshornish House, Skye, yesterday morning on the occasion of the conclusion of the Greshornish House Accord.
I wish to pay a sincere tribute to Robbie the Pict for organising this meeting and for chairing it so competently. His expertise on constitutional and human rights issues made no small contribution to the success of the occasion.
I wish to pay a sincere tribute to Robbie the Pict for organising this meeting and for chairing it so competently. His expertise on constitutional and human rights issues made no small contribution to the success of the occasion.
A closed hearing and an unannounced decision
Has there in fact been a decision by the High Court of Justiciary on the Foreign Secretary’s claim of public interest immunity (PII) in the Lockerbie appeal? It has been suggested to me (from a source claiming that the information came from the UK Foreign and Commonwealth Office) that at the closed hearing that took place on 19 August 2008 the court ordered that a summary of the documents in question (prepared by whom?) should be given to a “special counsel” (with what qualifications, and appointed by whom?) and not to Abdelbaset Megrahi’s chosen legal team.
If this information is accurate, two important questions need to be asked. They are: 1. Is it satisfactory, or tolerable, that such a decision be taken at a court hearing from which the appellant and his legal representatives are excluded? 2. Is it satisfactory, or tolerable, that no opinion is published by the court announcing its decision and explaining the reasons for it?
If this information is accurate, two important questions need to be asked. They are: 1. Is it satisfactory, or tolerable, that such a decision be taken at a court hearing from which the appellant and his legal representatives are excluded? 2. Is it satisfactory, or tolerable, that no opinion is published by the court announcing its decision and explaining the reasons for it?
Press coverage of the Greshornish House Accord
The Scottish daily "heavies" run substantial reports on the Greshornish House accord. The article in The Herald can be read here and that in The Scotsman here. The comments from members of the public are also worth reading. The website of the Scottish lawyers' magazine The Firm also has a lengthy report.
Tuesday, 16 September 2008
Greshornish House Accord
Invited Consultants –
Dr Hans Koechler, President of the International Progress Organisation (IPO), Vienna.
Prof Robert Black QC, Professor Emeritus of Scots Law, University of Edinburgh.
Convener –
Robbie the Pict, Lockerbie Justice Group.
The participants were invited to reply to four questions put by the Convener in the hope of guidance in the pursuit of proper justice for all in relation to the destruction of PanAm Flight 103 over Lockerbie in December 1988.
The questions asked were answered as follows:
QUESTION 1. Did the Foreign and Commonwealth Office arrangements for a trial at Kamp Zeist deliver an independent and impartial tribunal?
ANSWER 1.
No. We draw attention to five principal defects:
a) It would have enhanced the appearance of independence and impartiality if the Judicial Bench had been composed of Judges from countries other than the United Kingdom with a Scottish Judge in the Chair. This is principally because the case involves the interests of more than one state and the appointment of all the Judges from only one of the concerned states does not meet the required standards of independence and impartiality. The Consultants present today would both have preferred a tribunal wherein a Scottish Judge chaired a panel of Judges from other countries but this was rejected by the relevant UK authorities. It should be kept in mind that there was an ongoing political dispute between the UK and Libya at this time which had led to the severing of diplomatic relations.
b) The presence of American advisers in the well of the Court, later identified to the IPO as FBI agents, having frequent discourse and consultation with the Crown prosecution team contributed to the appearance of outside influence on the conduct of the prosecution. These persons were not identified at any point and their names did not appear on the official brochure which, amongst other things, named the prosecution and defence teams. Concerns were raised in the course of the trial that these persons appeared to be guiding witness responses by facial gestures.
c) We are of the view that if, in an adversarial system, the defence does not properly play its antagonistic role, the interplay of forces is set off-balance. This demands both equality of arms procedurally, and a determined and dedicated wielding of these arms. We draw attention to the new burden placed upon all Judges under Section 6(1) of the Human Rights Act 1998 (HRA) to ensure that there is indeed an equality of arms in their Court.
d) Whilst we accept that circumstantial evidence alone can be sufficient to convict, we are not satisfied that the Court, in its written judgment, adequately explained its reasons for accepting incriminating inferences from that evidence and rejecting or dismissing evidence that supported non-incriminating inferences.
e) We have good reason to suspect that rewards and benefits of a direct or indirect nature have been paid to prosecution witnesses.
QUESTION 2. What should happen now?
ANSWER 2
a) In the event that the Public Interest Immunity (PII) certificate is upheld by the Court and evidence is withheld from the Defence, we consider that this would render the conduct of a fair appeal impossible. We believe that, in actuality and in the public perception, such a denial compromises the principles of a fair hearing, which depends significantly upon equality of arms. In this context we would like to draw attention to the position adopted by the Foreign and Commonwealth Office on this matter, as contained in a letter written to the IPO on 27 August 2008. It reads:
“Under the Human Rights Act 1998 the Court has a duty to act in compliance with Convention rights in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial. The UK Government has made clear its commitment to work closely with the Court to ensure that Mr Megrahi receives a fair trial and that sensitive material is handled appropriately.”
b) In the event that the present appeal proceeds, we recommend the following:
i) That the pending decision by the Appeal Court, regarding the scope of the appeal, be delivered with urgency. Preparation by both the appellant and the Crown is impeded whilst the precise parameters of the appeal remain unsettled. It is clearly desirable that any decision defining those parameters should give reasons for the rejection of any grounds submitted by the appellant.
ii) The phrase ‘the trial and any appeal’ in the Agreement between the Governments of the UK and the Netherlands concerning a Scottish Trial in the Netherlands permits the view that this further appeal should also take place in an international framework; however we consider that unlikely. We urge that the relevant Scottish and UK authorities take such steps as are necessary to secure the presence of international observers at any further appeal hearing.
c) Irrespective of the outcome of the current appeal, there should be a re-investigation of the incident by the Scottish authorities. A further Fatal Accident Inquiry would not be inappropriate given the amount of material that has become available since the original FAI took place. When the restricted scope of an FAI is considered perhaps it would be more appropriate to have a wider-ranging public inquiry.
d) Allegations have been made in the Press and elsewhere of incidences of tampering with evidence material to the case. The Lord Advocate should instruct that these allegations be investigated.
QUESTION 3. If Scotland was charged with managing such an international event in the future, what model is recommended?
ANSWER 3.
a) Although this is a hypothetical question it offers the opportunity to advise the Scottish public of developments since the Lockerbie incident. The UK is a state party to the Rome Statute of the International Criminal Court (ICC). This would mean that such matters could be prosecuted by the International Criminal Court in The Hague.
b) Where, for whatever reason, the ICC cannot be resorted to, the possibility exists of inviting non-Scottish Judges to participate in a Scottish trial. The following are illustrative precedents for such an approach:
i) The Special Court for Sierra Leone, established by agreement between the UN and the Government of Sierra Leone.
ii) The Special Chambers in the Courts of Cambodia.
QUESTION 4. What changes should be considered for the better administration of justice in Scotland?
ANSWER 4.
1. Whilst Scotland retains an adversarial system as opposed to an inquisitorial system, the existence of a real equality of arms is crucial to the delivery of justice. Following the coming into force of the Human Rights Act 1998 (HRA) the responsibility for ensuring a fair trial, which includes equality of arms, lies with the Court itself. Although this judicial obligation is already enshrined in the law, it could usefully be spelled out in an amendment to the Criminal Procedure (Scotland) Act 1995.
2. It is inappropriate that the Chief Legal Adviser to the Government is also head of all criminal prosecutions. Whilst the Lord Advocate and Solicitor General continue as public prosecutors the principle of separation of powers seems compromised. The potential for a conflict of interest always exists. Resolution of these circumstances would entail an amendment of the provisions contained within the Scotland Act 1998.
3. The Criminal Procedure (Scotland) Act 1995 should be amended to oblige the Crown to disclose all prosecution witness statements. The current system, whereby the Crown’s disclosure obligation is met by simply supplying a list of possible Crown witnesses, encourages the fruitless expenditure of defence time, money and effort.
4. The absence of a particular and dedicated Criminal Appeal Court, especially when, unlike in civil matters, there is no further appeal available to a higher Court, renders the appeal system vulnerable to serious criticism.
16 September 2008
Dr Hans Koechler, President of the International Progress Organisation (IPO), Vienna.
Prof Robert Black QC, Professor Emeritus of Scots Law, University of Edinburgh.
Convener –
Robbie the Pict, Lockerbie Justice Group.
The participants were invited to reply to four questions put by the Convener in the hope of guidance in the pursuit of proper justice for all in relation to the destruction of PanAm Flight 103 over Lockerbie in December 1988.
The questions asked were answered as follows:
QUESTION 1. Did the Foreign and Commonwealth Office arrangements for a trial at Kamp Zeist deliver an independent and impartial tribunal?
ANSWER 1.
No. We draw attention to five principal defects:
a) It would have enhanced the appearance of independence and impartiality if the Judicial Bench had been composed of Judges from countries other than the United Kingdom with a Scottish Judge in the Chair. This is principally because the case involves the interests of more than one state and the appointment of all the Judges from only one of the concerned states does not meet the required standards of independence and impartiality. The Consultants present today would both have preferred a tribunal wherein a Scottish Judge chaired a panel of Judges from other countries but this was rejected by the relevant UK authorities. It should be kept in mind that there was an ongoing political dispute between the UK and Libya at this time which had led to the severing of diplomatic relations.
b) The presence of American advisers in the well of the Court, later identified to the IPO as FBI agents, having frequent discourse and consultation with the Crown prosecution team contributed to the appearance of outside influence on the conduct of the prosecution. These persons were not identified at any point and their names did not appear on the official brochure which, amongst other things, named the prosecution and defence teams. Concerns were raised in the course of the trial that these persons appeared to be guiding witness responses by facial gestures.
c) We are of the view that if, in an adversarial system, the defence does not properly play its antagonistic role, the interplay of forces is set off-balance. This demands both equality of arms procedurally, and a determined and dedicated wielding of these arms. We draw attention to the new burden placed upon all Judges under Section 6(1) of the Human Rights Act 1998 (HRA) to ensure that there is indeed an equality of arms in their Court.
d) Whilst we accept that circumstantial evidence alone can be sufficient to convict, we are not satisfied that the Court, in its written judgment, adequately explained its reasons for accepting incriminating inferences from that evidence and rejecting or dismissing evidence that supported non-incriminating inferences.
e) We have good reason to suspect that rewards and benefits of a direct or indirect nature have been paid to prosecution witnesses.
QUESTION 2. What should happen now?
ANSWER 2
a) In the event that the Public Interest Immunity (PII) certificate is upheld by the Court and evidence is withheld from the Defence, we consider that this would render the conduct of a fair appeal impossible. We believe that, in actuality and in the public perception, such a denial compromises the principles of a fair hearing, which depends significantly upon equality of arms. In this context we would like to draw attention to the position adopted by the Foreign and Commonwealth Office on this matter, as contained in a letter written to the IPO on 27 August 2008. It reads:
“Under the Human Rights Act 1998 the Court has a duty to act in compliance with Convention rights in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial. The UK Government has made clear its commitment to work closely with the Court to ensure that Mr Megrahi receives a fair trial and that sensitive material is handled appropriately.”
b) In the event that the present appeal proceeds, we recommend the following:
i) That the pending decision by the Appeal Court, regarding the scope of the appeal, be delivered with urgency. Preparation by both the appellant and the Crown is impeded whilst the precise parameters of the appeal remain unsettled. It is clearly desirable that any decision defining those parameters should give reasons for the rejection of any grounds submitted by the appellant.
ii) The phrase ‘the trial and any appeal’ in the Agreement between the Governments of the UK and the Netherlands concerning a Scottish Trial in the Netherlands permits the view that this further appeal should also take place in an international framework; however we consider that unlikely. We urge that the relevant Scottish and UK authorities take such steps as are necessary to secure the presence of international observers at any further appeal hearing.
c) Irrespective of the outcome of the current appeal, there should be a re-investigation of the incident by the Scottish authorities. A further Fatal Accident Inquiry would not be inappropriate given the amount of material that has become available since the original FAI took place. When the restricted scope of an FAI is considered perhaps it would be more appropriate to have a wider-ranging public inquiry.
d) Allegations have been made in the Press and elsewhere of incidences of tampering with evidence material to the case. The Lord Advocate should instruct that these allegations be investigated.
QUESTION 3. If Scotland was charged with managing such an international event in the future, what model is recommended?
ANSWER 3.
a) Although this is a hypothetical question it offers the opportunity to advise the Scottish public of developments since the Lockerbie incident. The UK is a state party to the Rome Statute of the International Criminal Court (ICC). This would mean that such matters could be prosecuted by the International Criminal Court in The Hague.
b) Where, for whatever reason, the ICC cannot be resorted to, the possibility exists of inviting non-Scottish Judges to participate in a Scottish trial. The following are illustrative precedents for such an approach:
i) The Special Court for Sierra Leone, established by agreement between the UN and the Government of Sierra Leone.
ii) The Special Chambers in the Courts of Cambodia.
QUESTION 4. What changes should be considered for the better administration of justice in Scotland?
ANSWER 4.
1. Whilst Scotland retains an adversarial system as opposed to an inquisitorial system, the existence of a real equality of arms is crucial to the delivery of justice. Following the coming into force of the Human Rights Act 1998 (HRA) the responsibility for ensuring a fair trial, which includes equality of arms, lies with the Court itself. Although this judicial obligation is already enshrined in the law, it could usefully be spelled out in an amendment to the Criminal Procedure (Scotland) Act 1995.
2. It is inappropriate that the Chief Legal Adviser to the Government is also head of all criminal prosecutions. Whilst the Lord Advocate and Solicitor General continue as public prosecutors the principle of separation of powers seems compromised. The potential for a conflict of interest always exists. Resolution of these circumstances would entail an amendment of the provisions contained within the Scotland Act 1998.
3. The Criminal Procedure (Scotland) Act 1995 should be amended to oblige the Crown to disclose all prosecution witness statements. The current system, whereby the Crown’s disclosure obligation is met by simply supplying a list of possible Crown witnesses, encourages the fruitless expenditure of defence time, money and effort.
4. The absence of a particular and dedicated Criminal Appeal Court, especially when, unlike in civil matters, there is no further appeal available to a higher Court, renders the appeal system vulnerable to serious criticism.
16 September 2008
Sunday, 14 September 2008
Arab League calls for release of Megrahi
The following item appears today on the website of The Tripoli Post:
'According to the Libyan news agency JANA, the Arab League Ministerial Council has reiterated a demand to release the political hostage Libyan national Abd al Basset al Megrahi.
'It also endorsed Libya's right to compensation for the damage sustained as result of the Lockerbie case and the consequent unfair UN sanctions that lasted for about nine years.
'The council renewed in a resolution issued at the end of its 130th session held at the headquarters in Cairo last night a demand for the release of al Megrahi, the Libyan national imprisoned in Scotland in connection with the Lockerbie case, urging the government of the UK to release document requested by al Megrahi's defence before the Scottish Criminal Cases Review Commission.
'The resolution said Britain's refusal to release the document represented a miscarriage of justice.
'Libya was represented at the meeting by the Secretary of Arab Affairs at the General People's Committee of the Foreign Liaison Bureau.'
'According to the Libyan news agency JANA, the Arab League Ministerial Council has reiterated a demand to release the political hostage Libyan national Abd al Basset al Megrahi.
'It also endorsed Libya's right to compensation for the damage sustained as result of the Lockerbie case and the consequent unfair UN sanctions that lasted for about nine years.
'The council renewed in a resolution issued at the end of its 130th session held at the headquarters in Cairo last night a demand for the release of al Megrahi, the Libyan national imprisoned in Scotland in connection with the Lockerbie case, urging the government of the UK to release document requested by al Megrahi's defence before the Scottish Criminal Cases Review Commission.
'The resolution said Britain's refusal to release the document represented a miscarriage of justice.
'Libya was represented at the meeting by the Secretary of Arab Affairs at the General People's Committee of the Foreign Liaison Bureau.'
Saturday, 13 September 2008
Skye Gathering
A meeting is to be held on the Isle of Skye on Monday, 15 September 2008 under the auspices of the Lockerbie Justice Group to consider, with full regard to the rule of law, the following four issues:
1: Did the Foreign and Commonwealth Office arrangements for a trial at Kamp Zeist deliver an independent and impartial tribunal?
2: What should happen now in respect of the Lockerbie proceedings?
3: If Scotland was charged with managing such an international event in the future, what model is recommended?
4: What changes should be considered for the better administration of justice in Scotland?
Among those taking part in the discussions will be Professor Hans Köchler, President of the International Progress Organization, one of the observers at the Lockerbie trial appointed by the Secretary General of the United Nations, and myself. A press briefing is to be held on the morning of Tuesday, 16 September.
Professor Köchler has a number of further Lockerbie-related engagements in Scotland on Wednesday 17 and Thursday 18 September.
1: Did the Foreign and Commonwealth Office arrangements for a trial at Kamp Zeist deliver an independent and impartial tribunal?
2: What should happen now in respect of the Lockerbie proceedings?
3: If Scotland was charged with managing such an international event in the future, what model is recommended?
4: What changes should be considered for the better administration of justice in Scotland?
Among those taking part in the discussions will be Professor Hans Köchler, President of the International Progress Organization, one of the observers at the Lockerbie trial appointed by the Secretary General of the United Nations, and myself. A press briefing is to be held on the morning of Tuesday, 16 September.
Professor Köchler has a number of further Lockerbie-related engagements in Scotland on Wednesday 17 and Thursday 18 September.
Friday, 12 September 2008
An anniversary
Today is the fifth anniversary of the removal by the United Nations Security Council of sanctions against Libya over the Lockerbie affair. Thirteen members voted voted in favour; France and the United States of America abstained. The report on BBC News can be read here. The terms of the Libyan "acceptance of responsibility" can be read here.
A strange little tale
A strange item has recently been posted on the ken-finn blog. It asserts that on 28 August 2005, BBC TV on its 7pm news bulletin broadcast a story to the effect that the CIA had admitted planting the MST-13 circuit board fragment at the Lockerbie crash site. No trace of this story could subsequently be found on the BBC News website. Here is the current post from the blog; and here is the post from 2005.
Wednesday, 10 September 2008
The Lumpert interview
Accuracy and The Herald
The Herald today has an article headed "Gaddafi 'invited to UK' for first time since Lockerbie" by Michael Settle. It contains the following passage:
'The sole person convicted of the crime, Abdelbaset Ali Mohmed al Megrahi, 56, the former Libyan agent, has been given leave to appeal his life sentence after top secret documents were passed to Britain by a foreign power. He is in Greenock Prison. Five Scottish judges are considering a Crown Office bid to limit the scope of his appeal.'
The last two sentences are correct. The first repeats, in strikingly similar language, the errors committed in yesterday's article in The Independent.
'The sole person convicted of the crime, Abdelbaset Ali Mohmed al Megrahi, 56, the former Libyan agent, has been given leave to appeal his life sentence after top secret documents were passed to Britain by a foreign power. He is in Greenock Prison. Five Scottish judges are considering a Crown Office bid to limit the scope of his appeal.'
The last two sentences are correct. The first repeats, in strikingly similar language, the errors committed in yesterday's article in The Independent.
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