Bomber release 'common humanity'

The BBC News website has an article reporting the views of Dr Jim Swire on the issue of the application to the High Court for interim liberation of Abdelbaset Megrahi pending his appeal. It reads in part:

'Dr Swire's daughter, Flora, was one of the 270 victims of the 1988 atrocity.

'He said the question of whether Megrahi should be released was one of "common humanity". (...)

'Dr Swire said he supported Megrahi being granted interim liberation because the Libyan reportedly does not have long to live.

'He claimed that keeping Megrahi away from his family in such a situation would amount to "torture".

'And Dr Swire said that "greater speed" in his appeal could have avoided the dilemma involving a "dying man who may or may not be guilty of the dreadful crime alleged against him".

'He said: "The man has reportedly got months to live.

'"My personal feelings are that to force him to remain segregated from his family and his five children for the short remaining time that he may have before him would amount to exquisite torture." (...)

'A decision on Megrahi's application for release will be made next week.'

Interim liberation: law and practice

The relevant statutory provision relating to the granting of bail to convicted prisoners pending an appeal is section 112 of the Criminal Procedure (Scotland) Act 1995, the relevant portions of which read:

“(1)… the High Court may, if it thinks fit, on the application of a convicted person, admit him to bail pending the determination of … his appeal.

“(2) The High Court shall not admit a convicted person to bail unless (a) the application for bail … states reasons why it should be granted … and (b) the prosecutor has had an opportunity to be heard on the application.”

The traditional approach of the High Court to the granting of bail pending an appeal is set out in guidelines issued by Lord Justice Clerk Wheatley in 1984 who stated that “it is not for [the judge considering bail] to pre-empt the decision of the Court of Criminal Appeal [on the appeal itself]. Accordingly if there are grounds of appeal which ex facie would warrant the quashing of the conviction if sustained, in such circumstances interim liberation should be granted.”

There can be little doubt that this test is satisfied in Abdelbaset Megrahi’s case. Not only have voluminous grounds of appeal been lodged which, if sustained, would lead to the quashing of the conviction; but also an independent review body, the Scottish Criminal Cases Review Commission, has reported that the conviction may have constituted a miscarriage of justice.

The Crown has on occasion sought to argue that a convicted prisoner should be released on bail pending his appeal only in exceptional circumstances. This argument was decisively rejected by the Criminal Appeal Court in the case of Ogilvie, Petitioner 1998 SCCR 187.

Other factors that may be relevant to the court’s decision in Mr Megrahi’s case are (1) the delay to which he has been subjected while his application was in the hands of the SCCRC and since his case was returned to the High Court; and (2) the information that has recently become public about the grave state of his health.

The court normally, though not invariably, does not reserve judgement but announces its decision at the end of the hearing.

Megrahi applies for bail

The BBC News website reports that an application for interim liberation (bail) has been lodged with the High Court of Justiciary on behalf of Abdelbaset Megrahi. The article reads in part:

'The man convicted of the 1988 Lockerbie bombing, Abdelbasset al-Megrahi has applied to be released on bail, pending his appeal.

'Arguments are due to be heard in the High Court in Edinburgh next Thursday [6 November]. (...)

'BBC Scotland's Home Affairs correspondent Reeval Alderson said: "In the past, Megrahi has said he didn't want to come out of prison except as a free man. But things have changed lately.

'"He is suffering from an advanced form of prostate cancer which has spread to other parts of his body.

'"Nobody is saying whether his condition is terminal or talking about his life expectancy but it's quite clear Megrahi is very ill and now he has finally applied to the High Court to be allowed to be released while the legal moves go on and they're very, very protracted, they're very, very lengthy indeed."

'Mr Alderson said there had been no reaction from official sources, such as the Crown Office apart from to confirm that the hearing would take place. (...)

'Mr Alderson said he had just spoken to one set of American relatives who felt Megrahi should allowed out as there was no point in keeping him in prison.

'However, he added: "I don't think that is a view that is widely shared though, particularly with the American relatives."

'After the disclosure that Megrahi had prostate cancer, there were calls for his appeal against his 2001 conviction to be speeded up.'

The full report can be read here.

The STV News report on the issue can be watched here.

The South African connexion

[I am grateful to Patrick Haseldine for the following, written in response to various recent press contentions that a high-powered South African delegation was "hauled off" Pan Am flight 103.]

Both Magnus Linklater in the The Times ("Lockerbie questions demand an answer") and David Maddox in The Scotsman ("Was Lockerbie suspect working for the US?") are making the same mistake. They refer to senior South African figures being "hauled off" the plane, which is demonstrably untrue.

Following the first screening of Allan Francovich's film The Maltese Double Cross, which first revealed a South African connection to Lockerbie, a Reuters news agency report of 12 November 1994 (http://en.wikipedia.org/wiki/Image:REUTERS12NOV94.jpg) clarified what actually happened. A 23-strong South African delegation - including Foreign Minister Pik Botha, Defence Minister Magnus Malan and Military Intelligence Chief C J Van Tonder - were travelling by South African Airways from Johannesburg. Their inbound flight inexplicably cut out a stopover at Frankfurt, which was SAA's European hub, and arrived early at Heathrow. The London embassy booked Botha and five of the party on Pan Am Flight 101 to New York for the signing of the Namibia Independence Agreement at UN headquarters on 22 December 1988. The remaining 17 members of the party returned from Heathrow on the SAA aircraft to Johannesburg.

UN Commissioner for Namibia, Bernt Carlsson, had been booked to travel by Sabena from Brussels (where he had addressed a Committee of the European Parliament) to New York for the same signing ceremony. However, Carlsson was persuaded by the South Africans to stopover at Heathrow and became the most high profile of the 270 Lockerbie victims.

Apartheid South Africa is thus intimately involved and might even have planned and executed the bombing without the involvement of any other country. This scenario neatly explains why Botha & Co did not need any forewarning by the CIA, and destroys the myth that they were "hauled off" the flight.

While it might be judicially and politically convenient now to shift the blame from the ailing Abdelbaset Megrahi to the dead terrorist Abu Nidal, we would be no nearer to the truth about the Lockerbie bombing. I continue to believe that, to get to the truth, a United Nations Inquiry into the death of UN Commissioner for Namibia, Bernt Carlsson, in the 1988 Lockerbie bombing (http://petitions.number10.gov.uk/UNInquiry/) is required. Let us hope that when the new US president takes office next January we will finally get this UN Inquiry.

Lockerbie questions demand an answer

This is the headline over an article in today's issue of The Times by Magnus Linklater, the newspaper's Scotland Editor (and the editor of The Scotsman in the bygone days when that title was still a serious and responsible journal).

The article reads in part:

'You do not have to be a conspiracy theorist to recognise that nagging questions have gnawed away at the Lockerbie case since the first investigations began. The veteran campaigner, Tam Dalyell, who describes himself as a “professor of Lockerbie studies”, is convinced that neither al-Megrahi nor the Libyan Government had any involvement. He, along with the Rev John Mosey and Dr Jim Swire, who both lost daughters in the atrocity, believe that there has been a spectacular miscarriage of justice.

'They have raised questions about basic evidence in the original case. They have challenged eyewitness accounts offered by the chief prosecution witness, the Maltese shopowner who originally identified Megrahi as a suspect. They have raised doubts about the forensic evidence, and have pointed out that al-Megrahi, a civilised and intelligent man, is a most unlikely terrorist.

'Last weekend, their campaign was given fresh impetus when Robert Fisk, the veteran Middle East correspondent, reported that Abu Nidal, the Palestinian terrorist responsible for some of the worst attacks of the 1970s and 1980s, may have been working for the Americans before the invasion of Iraq. Secret documents - the very phrase is a conspiracy idiom - written by Saddam Hussein's security services state that he had been colluding with the Americans trying to find evidence linking Saddam and al-Qaeda. Abu Nidal's alleged suicide in 2002 may have been an execution by the Iraqis for his betrayal.

'From this tenuous connection stems the idea that the US security services may have had previous contacts within Abu Nidal's terrorist organisation, the Popular Front for the Liberation of Palestine-General Command, which many experts have long believed was the real perpetrator of Lockerbie.

'Mr Dalyell, who thinks there may be some weight to this theory, points to incidents such as notices that went up in the US Embassy in Moscow in the days before the bombing, warning diplomats not to travel on PanAm flights, and how senior South African figures were hauled off the plane before the flight, almost as if there had been advance warning.

'For me, this kind of evidence strays into the territory of “the second gunman theory” that bedevilled the Kennedy assassination. But there is one aspect of the case that I have never understood: why was it that, for the first 18 months of the investigation, Scottish police, US investigators and European security agents were convinced that the perpetrators were Abu Nidal's PFLP? And why was it that, in the run-up to the Gulf War, when good relations with Syria and Iran were important to Western interests, attention switched abruptly from Abu Nidal's terrorists, and on to Libya?

'These matters have never satisfactorily been explained, and in the interests of common justice they should be addressed. For the sake of the Flight 103 victims, for the wider interests of Western security, and for the man now dying in a Scottish prison, there is a need for a proper inquiry. It does not have to be as wideranging as the Warren Commission that examined the Kennedy case, but it does need to be international, and to have US backing. The appeal in Edinburgh next year will examine legal aspects of the case, but it cannot extend to the wider issues that demand resolution.

'Just possibly a new president taking office next January will find in his in-tray persuasive evidence pointing to a reopening of the case. There are powerful moral reasons for dusting it off and asking a basic question: who was responsible for Britain's worst terrorist outrage?'

The full article can be accessed here.

Fate of Lockerbie bomber is now in hands of SNP minister

This is the headline over a post on Michael White's politics blog on The Guardian's website. It reads in part:

'Why is [Megrahi] in the news again as well as being in Greenock prison on the lower Clyde? He has always denied his guilt, lost an appeal in March 2002, but has been given leave by the Scottish Criminal Cases Review Commission to appeal again. (...)

'If the families, not all of whom regard the conviction as doubtful, are prepared to let him go, why should we think otherwise?

'My only further thought from the period is that Colonel Gadafy's Libya in the 80s was a friendless whipping boy for US anger, impotence and frustration about the Arab world. It was the decade when Ronald Reagan had it bombed from UK bases for no convincing reason. (Margaret Thatcher agreed only because she felt she owed him one for help retaking the Falklands.)

'Syria, far guiltier of anti-American actions, as I recall, was treated more leniently for reasons of state, though no longer. (...)

'It is all far from Greenock prison, where al-Megrahi is apparently dying. Over to you, Mr MacAskill [the Cabinet Secretary for Justice in the Scottish Government].'

The full article can be read here.

[Note by RB: It is not strictly accurate to say that Abdelbaset Megrahi's fate rests with Justice Secretary Kenny MacAskill. Seeking release on compassionate grounds is one avenue open to him, and the decision on that does rest with the Scottish Government. But it is also open to Mr Megrahi to apply to the High Court for interim liberation (bail, in other words) pending his appeal. The decision on that issue would be a matter for the judges of the High Court and not for politicians or ministers.]

Abu Nidal 'was a US spy'

This is the gravamen of a long article by Robert Fisk in The Independent on 25 October. It was in reaction to this article that Tam Dalyell and I made a call for an inquiry into the possible relevance of this revelation to the Lockerbie disaster, which is reported in a number of newspapers today, including The Scotsman. I hasten to add that Mr Dalyell and I did not suggest that Abu Nidal had been the leader of the Popular Front for the Liberation of Palestine: General Command. This is the reporter's own embroidery. Mr Dalyell and I are well aware that the "distinction" of leading the PFLP:GC rests with Ahmed Jibril.

What should happen now

[My opinions about what should happen to Abdelbaset Megrahi now that he has been diagnosed with late stage prostate cancer are canvassed in a number of Sunday newspapers. What follows are my real views, expressed in my own words.]

Since 31 January 2001 -- the day the guilty verdict against Abdelbaset Megrahi was announced by the Scottish Court at Camp Zeist – I have made no secret of my belief in his innocence. His conviction, on the evidence led at the trial, was nothing short of astonishing. It constitutes, in my view, the worst miscarriage of justice perpetrated by a Scottish criminal court since the conviction of Oscar Slater in 1909 for the murder of Marion Gilchrist.

In this context it is highly relevant to note that one – by far the most important – of the grounds on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice in Mr Megrahi’s case was its view that no reasonable court could have reached the conclusion that the Lockerbie court did on a matter absolutely central to its reasons for convicting. The SCCRC said:

“[T]he Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House [which were in the suitcase that also contained the bomb] took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.”

But even if there were not overwhelming grounds for doubting the justifiability of the court’s verdict, there are other reasons for pressing for his release from prison, given his recent diagnosis of late-stage, untreatable prostate cancer.

The first of these reasons is compassion and humanity. There is a practice – though not an invariable one -- within the Scottish Prison Service of releasing a prisoner who has only three months to live. We none of us know whether that stage has been reached in the progression of Mr Megrahi’s illness. But is it really necessary for those in whose power the decision lies, to wait until they are certain that that point has arrived? This particular prisoner finds himself incarcerated in a foreign country whose culture is alien to him. His sense of isolation at this time and the psychological strain on him must be greater than what would be suffered by a Scottish prisoner in a Scottish jail. Would it not be both appropriate as well as merciful for this to be recognized by the Scottish authorities?

Secondly, the delay in bringing Mr Megrahi’s current appeal to the hearing stage has been appalling. Had a measure of urgency been shown, it is entirely conceivable that the appeal could have been over before now and the appellant back with his wife and children in his own country, a free man. The SCCRC had his case under consideration for more than three years before referring it back to the High Court. The submission made to them was, admittedly, a long and detailed one. But the issue of the trial court’s unreasonable findings, mentioned above, is a very simple and straightforward one and required virtually no investigation other that a perusal of the relevant portions of the transcript of evidence. If the SCCRC decided early in its deliberations that the case was going to have to be referred back on this ground – and it is difficult to believe that it did not – then delaying taking that step for three years is hard to justify.

Then there is the delay that has occurred after the SCCRC referred the case to the High Court in June 2007.

More than sixteen months have passed since then. More than thirteen months have passed since the first procedural hearing in the new appeal was held. More than ten months have passed since the appellant’s full written grounds of appeal were lodged with the court. Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?

The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze is not in the book, have been asking the court to rewrite the book to insert it). These tactics include, to name but a few, raising difficulties about allowing the appellant access to productions used at the original trial; seeking to overturn previous appeal court decisions on the scope of the appeal in SCCRC references; and claiming public interest immunity on “national security” grounds in respect of documents which have been in the hands of the Crown for more than twelve years and which have been seen by the SCCRC. The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done little, if anything, meaningful to curb it.

Abdelbaset Megrahi has been shabbily dealt with by the Scottish criminal justice system. The Scottish Government has an opportunity now to treat him with compassion and dignity. I, for one, hope that it has the moral courage to seize this opportunity.

Sunday newspapers on Megrahi's plight

The Sunday Herald runs a long article by John Bynorth, largely based on an interview with me, claiming that Abdelbaset Megrahi has been treated shabbily by the Scottish criminal justice system. It focuses primarily upon the delay in bringing his current appeal against a highly questionable conviction to fruition.

The Sunday Mail prints an article claiming that Megrahi wishes to be released following the diagnosis of advanced stage prostate cancer, but wishes to remain in Scotland (and to be joined here by his wife and children) for palliative care.

The Sunday Times runs an opinion piece by its columnist, Joan McAlpine. It reads in part:

'Last year, after four years of deliberation, the Scottish Criminal Cases Review Commission suggested there may have been a miscarriage of justice. The new appeal will take place next year, missing the 20th anniversary of Lockerbie this December. By then, Megrahi will probably be dead as well.

'Robert Black QC, the emeritus professor of Scots Law at Edinburgh University, believes a miscarriage of justice has indeed occurred and is scathing about the legal establishment’s apparent reluctance to put this right. He has accused the Lord Advocate and the British government of resorting to “every delaying tactic in the book” to obstruct an appeal, exposing Scottish justice to ridicule around the world. This view is shared by Professor Hans Kochler, the UN observer at the Camp Zeist trial, and one of its biggest critics.

'Given the circumstances, there are many who believe it appropriate for the Libyan to be released early, so he can spend his last days with his wife and children. The law, quite correctly, allows the early release of prisoners who face imminent death. There are some, however, who the public would never tolerate releasing, even on humanitarian grounds, such as West and Huntley. But if Megrahi is guilty, then why should his terrible murders be seen as less serious than their terrible murders? It is easier to be compassionate if you think the man is innocent. Some individuals, including Tam Dalyell MP, describe him as a quiet, cultured man who is incapable of such a ghastly act. I do seem to remember the late Lord Longford saying something similar about the child killer Myra Hindley. Nobody paid much attention.

'For the moment, Megrahi is a convicted child killer — the youngest person on PanAm 103 was nine months old. Many, including the families of most American victims, are convinced of his guilt. The families have, after all, received millions of dollars of compensation from Gaddafi, his employer. This leaves a terrible taste. If Megrahi, an intelligence agent, placed the bomb, it was at the command of a president who is now our new best friend.

'It is for the court of appeal to determine the facts. Black argues it can proceed even if Megrahi dies. Beyond that, we need to nail allegations that Scottish justice was compromised. Was evidence withheld from the defence for political reasons? Why is the appeal process so slow the appellant is likely to die first? Lockerbie is more damaging to our legal system’s reputation than the Shirley McKie fingerprint scandal. Like the McKie case, it should be scrutinised by a full public inquiry.

'As for Megrahi, he should be treated with compassion in his last days. But unless and until his conviction is overturned, that must be within the walls of Greenock prison.'

Letter from Dr Jim Swire

Megrahi: An unfolding human tragedy

Most people would not wish to exploit or extend the misery of others. It is so easy to hate, yet to harbour corrosive hate is also to harm oneself. Does anyone suppose they would feel any lasting benefit were Abdelbaset Ali Mohmed al Megrahi forced to die in prison, far from his family? Would such a fate advantage those still grieving after 20 years for the loss of loved ones at Lockerbie? I don't believe it would.

More than five years after his application, his next appeal against his 27-year sentence still does not have a starting date. All we know is that our Scottish Criminal Cases Review Commission decided his trial might have been unfair. The absence of certainty is in a sense our fault. We have been far too slow. Look at the dilemma tardiness has brought upon us. But the lack of certainty is irrelevant: guilty or innocent, we have an unfolding human tragedy. We do not have a code of punishment that condemns people to die in a foreign prison, so far from their family.

The world is watching whether we show magnanimity or vengeance. To those who might wish the maximum misery for this man I would quote John Donne: "Send not to know for whom the bell tolls - it tolls for thee."

[From today's issue of The Herald. It can be read here.]

Reaction from HMP Greenock

Gaddafi forked out £1500 to have satellite telly fitted at [Greenock] jail when Megrahi was moved there from Barlinnie three years ago. He also provided cash for the channel subscription fees.

The prisoners get the full range of sport and top movies, but no porn channels. (...)

The bomber was diagnosed with advanced prostate cancer last month and was told a few days ago that the disease has spread to other parts of his body.

The Record's source said: "There has been an uproar since the cons heard Megrahi was dying.

"He's already well liked, and the fact he got good telly for everyone only helps his standing.

"The Libyan embassy paid for Sky to be piped into Megrahi's hall. The other two halls weren't happy, so the Libyans agreed to pay for them as well. (...)

A Scottish Prison Service spokeswoman said: "All the prisoners at Greenock have access to Sky TV, paid for by the Common Good Fund."

Megrahi is appealing against his conviction for murdering 270 people in the bombing of PanAm Flight 103 in 1988.

Lockerbie campaigner Dr Jim Swire, who lost his daughter in the atrocity and doubts Megrahi's guilt, has said he should be allowed to go home to die.

[From an article in today's Daily Record. It can be read here.]

Release bid "hypothetical"

First Minister Alex Salmond has declined to answer "hypothetical" questions about the treatment of the man convicted of the Lockerbie bombing. (...)

Mr Salmond said there was no application before the Scottish Government and it would be wrong to "prejudge" any such process. (...)

The possibility of a transfer back to Libya has also been raised.

Mr Salmond said the Scottish Government never commented on the medical condition of any prisoner.

"I note that Mr Megrahi's legal team have asked for privacy on that matter," he said.

"And, secondly, there's no application for prisoner transfer or anything else before the Scottish Government, therefore there's no consideration being given to it because there's no application."

He said he would not answer hypothetical questions.

"One thing you could never do under any circumstances is prejudge how you would treat any such application - if indeed one arrived," he said.

"As far as the medical condition of any prisoner in Scotland is concerned, we don't discuss it - that's a matter for them and their medical advisers."

[From a report on the BBC News website. The full text can be read here.]

The Scotsman's leading article

A kind reader has sent me the text of The Scotsman's editorial. It is headed "If Lockerbie bomber is dying, he should go free". The final three paragraphs read:

'In the event that Megrahi dies before the appeal, it is legally possible for the case to be continued on behalf of the relatives of those who were murdered in the bombing. While it would be second best, that legal avenue should certainly be explored in the untimely event that Megrahi succumbs to his illness. The one thing that must not be allowed to happen is for the truth regarding this atrocity to die with the only person found guilty - on questionable grounds - of perpetrating it.

'If Megrahi was not involved, or even if only a minor part of the conspiracy, then who is guilty? One theory that remains is that Iran commissioned the attack, perhaps employing Palestinian guerrillas, in retaliation for the shooting down of an Iranian airliner by the US military. Whatever the truth, it must be exposed.

'This leaves the final new twist to this murky tale: should Megrahi be allowed to die outside his prison walls? There is a place for compassion in the administration of justice because that is what makes our culture different from that of the terrorist or suicide bomber. But we would have to be very sure that Megrahi is truly as ill as is reported.'

Detailed coverage in The Scotsman

In the past, I have been critical of the weakness of The Scotsman's coverage of issues relating to the Lockerbie disaster and the ongoing appeal by Abdelbaset Megrahi. Today, however, I wish to deliver a bouquet rather than a brickbat.

The paper runs three articles (plus an editorial, which I have not read because it is in the subscription section of the paper's website). Two of the articles are by Michael Howie and are headlined "Al-Megrahi: the dilemma" and "Lockerbie bombing: Appeal could go ahead even if he's dead". The third is an op-ed piece by Tam Dalyell under the headline "Issue is not only Megrahi, but integrity of Scottish legal system … this case does not cease simply because of death".

Some serious coverage

The best coverage that I have so far found of the Megrahi health issue is to be found on the website of The Herald. It includes a video comment from veteran Lockerbie campaigner and ex-MP, Tam Dalyell. The article can be accessed here.

The website of The Daily Telegraph also has an informative article by the paper's Scottish correspondent.