I have found two follow-up stories on yesterday's revelations in The Herald.
The Reuters news agency website carries an article by Kate Kelland. The following are excerpts:
'The British government is discussing the ratification of an agreement with Tripoli which could allow a Libyan convicted of the 1988 Lockerbie bombing to be sent home to the oil-exporting North African country. (...)
'[A UK] government source declined to confirm or deny a report in a Scottish newspaper that the PTA is to be ratified on April 27 and said any transfer of Megrahi would require an individual application to be made.
'"The PTA doesn't actually provide for the transfer of any individual prisoner. It is a framework under which such transfers, if they were to be considered, would happen," the source said. (...)
'A Scottish government spokeswoman said the PTA was "a matter for the UK and Libyan governments" but it would be for Scottish ministers "to decide on any application for prisoner transfer in relation to all prisoners in Scotland."
'"We do not discuss hypothetical applications and will not prejudge or anticipate any decision," she said.'
The article by David Leask in Scotland on Sunday contains the following:
'The Crown Office yesterday confirmed it had written to the families of all 270 victims of the 1989 bombing to spell out how any transfer would take place. (...)
'A spokeswoman for the Crown Office declined to reveal the details of the letter but stressed that prosecutors had been keeping families up to date with the case.
'She said: "Since the day the UK signed the agreement in 2007 we have communicated with the families about it because of their long-standing interest in any prisoner transfer arrangements between the UK and Libya."
'Some reports have suggested that officials in both England and Scotland have encouraged Libya to apply for Megrahi to be transferred as soon as the agreement is set in stone. (...)
'First Minister Alex Salmond has previously said he feels Megrahi should serve his entire term in Scotland. The initial prisoner transfer agreement, dubbed "the deal in the desert", sparked fury north of the border.
'Even after the deal is finalised, it will be up to MacAskill to decide whether to release Megrahi to the Libyans. The UK Government has no power over prisoners in the Scottish system.'
It is important to stress that, once the PTA comes into force, an application would have to be made by Megrahi to be considered for repatriation. Journalistic speculation notwithstanding, no-one but Abdelbaset Megrahi (and perhaps his lawyers) knows what his intention in this regard is. Furthermore, whether any such application would be granted is a matter for the Scottish Ministers (effectively the Justice Minister and -- perhaps -- the First Minister). Given the published statements of SNP politicians on the matter when the PTA was being negotiated by the UK Government, and given the possible political (and international public relations) consequences of a decision to permit repatriation, the success of any application can hardly be regarded as a foregone conclusion. But, of course, the pressure to grant it from Justice Department and Crown Office sources (who, I confidently believe, would like nothing better than to avoid the appeal that is due to start on 28 April) would be immense.
Sunday, 19 April 2009
Saturday, 18 April 2009
Megrahi may return to Libya, Lockerbie families told
This is the heading over an article by Lucy Adams in today's edition of The Herald. It reads in part:
'Senior legal officials, in a tacit acknowledgement that the man convicted of the Lockerbie bombing is likely to be allowed to return home, have written to all relatives of the victims explaining the transfer process.
'After years of denial by ministers and officials, the Crown Office e-mail suggests that Abdelbaset Ali Mohmed al Megrahi, currently serving 27 years in Greenock Prison for the bombing that killed 270 people, will be allowed to return to Libya under a transfer agreement to be ratified before the end of this month.
'The e-mail also suggests that ratification may take place on April 27, the day before Megrahi's long-awaited appeal begins in Edinburgh.
'Earlier this year, The Herald revealed that Libyan officials had been encouraged by senior civil servants from both sides of the border, including Robert Gordon, the head of the Justice Department in Scotland, to apply for Megrahi to be transferred as soon as the agreement is ratified. (...)
'Yesterday's revelation coincided with the publication of a critical report on the transfer agreement by the Joint Committee on Human Rights at Westminster.
'The report makes apparent the committee's disdain of Jack Straw, the UK Justice Secretary, for failing to delay ratification to allow for proper scrutiny.
'Mr Straw wrote to the committee in March to say he would delay ratification only until the Easter recess because "a delay beyond early April is likely to lead to serious questions on the part of Libya in regards to our willingness to conclude this and three other judicial co-operation agreements".'
The full article can be read here.
An accompanying piece headlined ‘The relatives of the victims also have human rights’, also by Lucy Adams, contains the following:
'Little has been allowed to get in the way of plans to return the man convicted of the Lockerbie bombing back to his home country since the global political axis turned. (...)
'Talks to establish a Prisoner Transfer Agreement (PTA) between Libya and the UK began in 2005, but the Foreign Office has consistently denied that such discussions bear any relevance to Abdelbaset Ali Mohmed Al Megrahi.
'The agreement, signed by Westminster and due to be ratified by the end of the month, means that any Libyan serving a sentence in the UK, who has no pending appeal, could be returned home. Those in Scottish prisons could be moved only with the permission of Scottish ministers.
'But the wheels are turning in spite of concerns and opposition. While the appeal itself has taken years to begin, the machinery behind the transfer agreement is moving with haste.
'Westminster's Joint Committee on Human Rights publicly stated last month that the treaty raises concerns and requested that ratification be delayed until the end of April so that it could publish a substantive report.
'However, Jack Straw, the UK Justice Secretary, said he would delay ratification only until the Easter recess because "a delay beyond early April is likely to lead to serious questions on the part of Libya".
'The committee report states: "In our view, when a select committee states that it intends to scrutinise a treaty, ratification should be delayed until the committee's inquiry has concluded."
'Despite the pleas of relatives of the victims of the tragedy and Scottish ministers demanding that Megrahi be exempt from the agreement, it appears from both the Crown Office e-mail and official sources that he may be the first prisoner to be dealt with.
'First Minister Alex Salmond made clear in April 2008 that Megrahi would serve his full sentence in Scotland and that he would "defend the integrity of the Scottish judicial system". However, officials have privately made clear to the Libyans that they are prepared to go back on such claims, which were allegedly "made more in relation to the murky politics of the deal in the desert than Megrahi". (...)
'Dr Jim Swire, whose daughter, Flora, died in the tragedy, said: "Jack Straw has overridden the wishes of the Joint Committee on Human Rights and refused to delay ratification in order to ensure it can be active by April 27 - the day before the appeal starts.
"For those who think the Scottish legal process is nothing more than a political pantomime, here's the confirmation. The whole thing has nothing to do with justice and everything to do with convenience and financial gain.
'"The relatives also have human rights, including the right to know what happened to a loved one and why they were not better protected."
'A Scottish Government spokeswoman said last night: "The PTA was negotiated and signed by the UK and Libyan Governments and so is it is a matter for those governments. Once ratified, it will be for the Scottish ministers to decide on any application for prisoner transfer in relation to all prisoners in Scotland.
'"We do not discuss hypothetical applications and will not prejudge any decision."
'A Crown Office spokeswoman said: "Since the day the UK signed the agreement, we have communicated with the families because of their interest in any prisoner transfer arrangements between the UK and Libya."'
The full text of the article can be read here, and a short piece entitled Dialogue and denial on the way to a deal, which contains a catalogue of governmental prevarication and obfuscation on the prisoner transfer issue, can be read here.
'Senior legal officials, in a tacit acknowledgement that the man convicted of the Lockerbie bombing is likely to be allowed to return home, have written to all relatives of the victims explaining the transfer process.
'After years of denial by ministers and officials, the Crown Office e-mail suggests that Abdelbaset Ali Mohmed al Megrahi, currently serving 27 years in Greenock Prison for the bombing that killed 270 people, will be allowed to return to Libya under a transfer agreement to be ratified before the end of this month.
'The e-mail also suggests that ratification may take place on April 27, the day before Megrahi's long-awaited appeal begins in Edinburgh.
'Earlier this year, The Herald revealed that Libyan officials had been encouraged by senior civil servants from both sides of the border, including Robert Gordon, the head of the Justice Department in Scotland, to apply for Megrahi to be transferred as soon as the agreement is ratified. (...)
'Yesterday's revelation coincided with the publication of a critical report on the transfer agreement by the Joint Committee on Human Rights at Westminster.
'The report makes apparent the committee's disdain of Jack Straw, the UK Justice Secretary, for failing to delay ratification to allow for proper scrutiny.
'Mr Straw wrote to the committee in March to say he would delay ratification only until the Easter recess because "a delay beyond early April is likely to lead to serious questions on the part of Libya in regards to our willingness to conclude this and three other judicial co-operation agreements".'
The full article can be read here.
An accompanying piece headlined ‘The relatives of the victims also have human rights’, also by Lucy Adams, contains the following:
'Little has been allowed to get in the way of plans to return the man convicted of the Lockerbie bombing back to his home country since the global political axis turned. (...)
'Talks to establish a Prisoner Transfer Agreement (PTA) between Libya and the UK began in 2005, but the Foreign Office has consistently denied that such discussions bear any relevance to Abdelbaset Ali Mohmed Al Megrahi.
'The agreement, signed by Westminster and due to be ratified by the end of the month, means that any Libyan serving a sentence in the UK, who has no pending appeal, could be returned home. Those in Scottish prisons could be moved only with the permission of Scottish ministers.
'But the wheels are turning in spite of concerns and opposition. While the appeal itself has taken years to begin, the machinery behind the transfer agreement is moving with haste.
'Westminster's Joint Committee on Human Rights publicly stated last month that the treaty raises concerns and requested that ratification be delayed until the end of April so that it could publish a substantive report.
'However, Jack Straw, the UK Justice Secretary, said he would delay ratification only until the Easter recess because "a delay beyond early April is likely to lead to serious questions on the part of Libya".
'The committee report states: "In our view, when a select committee states that it intends to scrutinise a treaty, ratification should be delayed until the committee's inquiry has concluded."
'Despite the pleas of relatives of the victims of the tragedy and Scottish ministers demanding that Megrahi be exempt from the agreement, it appears from both the Crown Office e-mail and official sources that he may be the first prisoner to be dealt with.
'First Minister Alex Salmond made clear in April 2008 that Megrahi would serve his full sentence in Scotland and that he would "defend the integrity of the Scottish judicial system". However, officials have privately made clear to the Libyans that they are prepared to go back on such claims, which were allegedly "made more in relation to the murky politics of the deal in the desert than Megrahi". (...)
'Dr Jim Swire, whose daughter, Flora, died in the tragedy, said: "Jack Straw has overridden the wishes of the Joint Committee on Human Rights and refused to delay ratification in order to ensure it can be active by April 27 - the day before the appeal starts.
"For those who think the Scottish legal process is nothing more than a political pantomime, here's the confirmation. The whole thing has nothing to do with justice and everything to do with convenience and financial gain.
'"The relatives also have human rights, including the right to know what happened to a loved one and why they were not better protected."
'A Scottish Government spokeswoman said last night: "The PTA was negotiated and signed by the UK and Libyan Governments and so is it is a matter for those governments. Once ratified, it will be for the Scottish ministers to decide on any application for prisoner transfer in relation to all prisoners in Scotland.
'"We do not discuss hypothetical applications and will not prejudge any decision."
'A Crown Office spokeswoman said: "Since the day the UK signed the agreement, we have communicated with the families because of their interest in any prisoner transfer arrangements between the UK and Libya."'
The full text of the article can be read here, and a short piece entitled Dialogue and denial on the way to a deal, which contains a catalogue of governmental prevarication and obfuscation on the prisoner transfer issue, can be read here.
Lockerbie mystery will remain
[This is the title of an article published on 2 April 2009 in Lockerbie's local weekly newspaper, The Annandale Herald. Because the article is not available online, the full text is reproduced below.]
“I THINK Megrahi’s name will be cleared. Beyond that I doubt if we will ever now find out who or what actually caused the destruction of Pan Am 103.”
These are the words of Lockerbie-born retired law Professor Robert Black who has spoken exclusively to DNG Media’s CAROL HOGARTH in the lead up to the start of the Lockerbie bomber’s second appeal hearing later this month.
Mr Black, who now splits his time between homes in Edinburgh and South Africa, is credited as one of the architects of the original Lockerbie trial at Camp Zeist in the Netherlands. He is a founder member of the Justice for Megrahi campaign, set up after the terminally ill Libyan Abdelbaset Ali Mohmed Al Megrahi was refused bail last year.
Megrahi was convicted in 2001 of planting the bomb on Pan Am Flight 103 which exploded over Lockerbie on December 21, 1988, killing 270 people, including eleven Lockerbie residents.
Q. Can you explain your family connection with Lockerbie?
A. I was born at Peatford, on the outskirts of the town (near the Queen’s Hotel) in June 1947. My father, Jim, was a plumber, working then for Drummond’s and later for Carruthers & Green. When I was five we moved to Hillview Street, where my parents lived until they died in the 1990s. I attended Lockerbie Academy from 1952 to 1961 (then Dumfries Academy from 1961 to 1964). For a number of years my mother, Jean, ran the small grocer’s shop (now closed) in Hillview Street. My father’s brother was the local molecatcher (as their father had been) and his son, my cousin, still carries on the business.
Q. How do you remember the town from your youth?
A. The town was a good place to grow up in. It was quiet and safe. Children could play unsupervised in the streets, in the parks, in the woods and on the golf course. I remember swimming in the Annan and the Dryfe. I remember the people all knowing each other and being friendly and open. I suppose there must have been some conflict and crime, but that never impinged on my consciousness as a child.
Q. Where were you and what were you doing when Pan Am flight 103 exploded over the town in December 1988?
A. The first news of the Lockerbie disaster came to me through BBC radio. I was at my home in Edinburgh (I had become Professor of Scots Law at Edinburgh University in January 1981) preparing my evening meal with, as usual, my wireless tuned to Radio Four. I immediately tried to telephone my mother, but all the lines were down and I could not get through. Shortly after 8pm a university colleague phoned me. She said television programmes had been interrupted to announce that a plane had crashed on Lockerbie. Knowing I did not have a television set (and twenty years later I still don’t) she assumed I would not have received the news. As the gravity of the incident became clearer, so my concern for the safety of my mother and father increased. However, at around 8.15, I received a phone call from my niece, at that time a nurse in a hospital in Glasgow. It transpired she had actually been on the phone to my mother when the plane came down and, because the line was not cut until a few minutes thereafter, was able to confirm that her grandmother and grandfather had not been killed or injured. At the actual moment of impact, my father had been outside the house, posting a letter in the pillar box just across the road. He rushed to the alleyway between the houses and sheltered there while small items of debris rained down on the street.
Q. You are credited with being one of the “architects” of the first trial at Camp Zeist. What was your involvement at that time?
A. My personal involvement in the aftermath of the destruction of Pan Am 103 began in early 1993. I was approached by representatives of a group of British businessmen whose desire to participate in major engineering works in Libya was being impeded by the UN sanctions that had been imposed on Libya in an attempt to compel the surrender for trial in Scotland or the United States of America of their two accused citizens. They asked if I would be prepared to provide independent advice to Libya with a view (it was hoped) to persuading them their citizens would obtain a fair trial if they were to surrender to the Scottish authorities. I submitted material setting out the essentials of Scottish solemn criminal procedure and the various protections embodied in it for accused persons. It was indicated to me that the Libyan government was satisfied regarding the fairness of a criminal trial in Scotland but, since Libyan law prevented the extradition of nationals for trial overseas, the ultimate decision would have to be one taken voluntarily by the accused persons themselves.
For this purpose a meeting was convened in Tripoli in October 1993 of the international team of lawyers appointed to represent the accused. I am able personally to testify to how much of a surprise and embarrassment it was to the Libyan government when the outcome of the meeting of the defence team was an announcement that the accused were not prepared to surrender themselves for trial in Scotland. At a private meeting I had in Tripoli a day later it was explained to me the primary reason for the unwillingness of the accused to stand trial in Scotland was their belief that, because of unprecedented pre-trial publicity over the years, a Scottish jury could not possibly bring to their consideration of the evidence the impartiality and open-mindedness accused persons are entitled to expect and that a fair trial demands.
I returned to Tripoli and in 1994 and presented a detailed proposal that a trial be held outside Scotland, ideally in the Netherlands, in which the governing law and procedure would be that followed in Scottish criminal trials on indictment but with the jury of 15 persons replaced by a panel of judges. In a letter to me it was stated the suspects would voluntarily surrender themselves for trial before a tribunal so constituted. The Deputy Foreign Minister of Libya stated his government approved of the proposal. I submitted the relevant documents to the Foreign Office in London and the Crown Office in Edinburgh. Their immediate response was that this scheme was impossible, impracticable and inherently undesirable, with the clear implication that I had taken leave of what few senses nature had endowed me with. However, from about late July 1998, following interventions supporting my “neutral venue” scheme from, amongst others, President Nelson Mandela, there began to be leaks from UK government sources to the effect that a policy change over Lockerbie was imminent; and on 24 August 1998 the governments of the United Kingdom and United States announced they had reversed their stance on the matter of a “neutral venue” trial. And after a number pitfalls were avoided, the suspects surrendered themselves for trial.
Q. What is your view of the legal process involving the case since then?
A. The outcome of the trial was a real shock. Since the day of the verdict I have consistently maintained the conviction of Abdelbaset Megrahi was contrary to the weight of the evidence and that the finding of guilt against him was a conclusion no reasonable tribunal could have reached on that evidence. I am glad to say my view appears to be shared by the Scottish Criminal Cases Review Commission, for this is one of the grounds on which it referred Megrahi’s case back to the High Court for a further appeal. As someone who has practised, taught and (as a part-time judge) administered the criminal law of Scotland for 35 years, I can confidently say that, in my opinion, the conviction of Megrahi is the worst and most blatant miscarriage of justice to have occurred in Scotland for a hundred years.
Q. What led to the formation of the Justice for Megrahi campaign?
A. What precipitated the establishment of the campaign was the refusal by the High Court to release Megrahi on bail pending his appeal, even though advanced and incurable prostate cancer had been diagnosed. The campaign is intended to create a climate of opinion in which his release on bail by the court, or his compassionate release by the Scottish Government, can be achieved so he can spend what time remains to him with his family at their house in Newton Mearns.
Q. What is your experience of meeting and working with victims’ families?
A. One of the great privileges accorded to me through my involvement in the Lockerbie case has been meeting, and forming friendships with, relatives of individuals killed aboard Pan Am 103: delightful people like Jim and Jane Swire, John and Lisa Mosey and Marina Larracoechea. My contacts with other relatives, particularly some American ones, have been less pleasurable. For some of them, anyone who expresses anything less than absolutely uncritical acceptance of the trial verdict and of Libyan culpability is a rogue and a scoundrel. How they will cope with the quashing of Megrahi’s conviction (which I believe to be inevitable if the current appeal goes the full distance) I hesitate to think.
Q. Do you have contact with Megrahi and can you give us an idea of the current state of his health?
A. I have had no direct contact with Megrahi since I visited him in Greenock Prison some considerable time before his prostate cancer was diagnosed. From recent interviews that his wife, Aisha, has given, it seems his condition is deteriorating.
Q. The second appeal hearing is due to start at the end of April. What are your expectations of that?
A. If the appeal goes the full distance, I have no doubt whatsoever that Megrahi’s conviction will be quashed. But if his medical condition deteriorates dramatically, he may decide to apply for transfer back to Libya to die there in the bosom of his family. It is a condition of applying for prisoner transfer that there be no live legal proceedings in that prisoner’s case. This means in order to qualify, Megrahi would have to abandon his present appeal. I am cynical enough about Crown Office and Scottish Government Justice Department motives to believe this is the outcome these bodies devoutly wish to achieve. There are those — civil servants and others — whose careers and reputations have been built upon the Lockerbie conviction. For them, the ideal outcome is for the current appeal to be abandoned. If it proceeds the full distance, embarrassment (and perhaps worse) are inevitable.
Q. What is it about the Lockerbie case in general that has kept you so involved over the years?
A. The injustice of it. Abdelbaset Megrahi should never have been convicted. This is so obvious to anyone who looks at the evidence and at the trial court’s judgment that there must be something wrong with a system that has already taken more than eight years to reach a point where it might just be about to be rectified.
Q. Do you think there will ever be a satisfactory conclusion to the Lockerbie case?
A. I think Megrahi’s name will be cleared. I only hope he is alive to see it. Beyond that, I doubt if we will ever now find out who or what actually caused the destruction of Pan Am 103. The political (and indeed journalistic) will to investigate what truly happened seems to me to be lacking. And people like me and like those relatives who have never been convinced by the officially-approved explanation are growing old and tired. Clearing Megrahi is the best that we can hope to achieve, I’m afraid.
“I THINK Megrahi’s name will be cleared. Beyond that I doubt if we will ever now find out who or what actually caused the destruction of Pan Am 103.”
These are the words of Lockerbie-born retired law Professor Robert Black who has spoken exclusively to DNG Media’s CAROL HOGARTH in the lead up to the start of the Lockerbie bomber’s second appeal hearing later this month.
Mr Black, who now splits his time between homes in Edinburgh and South Africa, is credited as one of the architects of the original Lockerbie trial at Camp Zeist in the Netherlands. He is a founder member of the Justice for Megrahi campaign, set up after the terminally ill Libyan Abdelbaset Ali Mohmed Al Megrahi was refused bail last year.
Megrahi was convicted in 2001 of planting the bomb on Pan Am Flight 103 which exploded over Lockerbie on December 21, 1988, killing 270 people, including eleven Lockerbie residents.
Q. Can you explain your family connection with Lockerbie?
A. I was born at Peatford, on the outskirts of the town (near the Queen’s Hotel) in June 1947. My father, Jim, was a plumber, working then for Drummond’s and later for Carruthers & Green. When I was five we moved to Hillview Street, where my parents lived until they died in the 1990s. I attended Lockerbie Academy from 1952 to 1961 (then Dumfries Academy from 1961 to 1964). For a number of years my mother, Jean, ran the small grocer’s shop (now closed) in Hillview Street. My father’s brother was the local molecatcher (as their father had been) and his son, my cousin, still carries on the business.
Q. How do you remember the town from your youth?
A. The town was a good place to grow up in. It was quiet and safe. Children could play unsupervised in the streets, in the parks, in the woods and on the golf course. I remember swimming in the Annan and the Dryfe. I remember the people all knowing each other and being friendly and open. I suppose there must have been some conflict and crime, but that never impinged on my consciousness as a child.
Q. Where were you and what were you doing when Pan Am flight 103 exploded over the town in December 1988?
A. The first news of the Lockerbie disaster came to me through BBC radio. I was at my home in Edinburgh (I had become Professor of Scots Law at Edinburgh University in January 1981) preparing my evening meal with, as usual, my wireless tuned to Radio Four. I immediately tried to telephone my mother, but all the lines were down and I could not get through. Shortly after 8pm a university colleague phoned me. She said television programmes had been interrupted to announce that a plane had crashed on Lockerbie. Knowing I did not have a television set (and twenty years later I still don’t) she assumed I would not have received the news. As the gravity of the incident became clearer, so my concern for the safety of my mother and father increased. However, at around 8.15, I received a phone call from my niece, at that time a nurse in a hospital in Glasgow. It transpired she had actually been on the phone to my mother when the plane came down and, because the line was not cut until a few minutes thereafter, was able to confirm that her grandmother and grandfather had not been killed or injured. At the actual moment of impact, my father had been outside the house, posting a letter in the pillar box just across the road. He rushed to the alleyway between the houses and sheltered there while small items of debris rained down on the street.
Q. You are credited with being one of the “architects” of the first trial at Camp Zeist. What was your involvement at that time?
A. My personal involvement in the aftermath of the destruction of Pan Am 103 began in early 1993. I was approached by representatives of a group of British businessmen whose desire to participate in major engineering works in Libya was being impeded by the UN sanctions that had been imposed on Libya in an attempt to compel the surrender for trial in Scotland or the United States of America of their two accused citizens. They asked if I would be prepared to provide independent advice to Libya with a view (it was hoped) to persuading them their citizens would obtain a fair trial if they were to surrender to the Scottish authorities. I submitted material setting out the essentials of Scottish solemn criminal procedure and the various protections embodied in it for accused persons. It was indicated to me that the Libyan government was satisfied regarding the fairness of a criminal trial in Scotland but, since Libyan law prevented the extradition of nationals for trial overseas, the ultimate decision would have to be one taken voluntarily by the accused persons themselves.
For this purpose a meeting was convened in Tripoli in October 1993 of the international team of lawyers appointed to represent the accused. I am able personally to testify to how much of a surprise and embarrassment it was to the Libyan government when the outcome of the meeting of the defence team was an announcement that the accused were not prepared to surrender themselves for trial in Scotland. At a private meeting I had in Tripoli a day later it was explained to me the primary reason for the unwillingness of the accused to stand trial in Scotland was their belief that, because of unprecedented pre-trial publicity over the years, a Scottish jury could not possibly bring to their consideration of the evidence the impartiality and open-mindedness accused persons are entitled to expect and that a fair trial demands.
I returned to Tripoli and in 1994 and presented a detailed proposal that a trial be held outside Scotland, ideally in the Netherlands, in which the governing law and procedure would be that followed in Scottish criminal trials on indictment but with the jury of 15 persons replaced by a panel of judges. In a letter to me it was stated the suspects would voluntarily surrender themselves for trial before a tribunal so constituted. The Deputy Foreign Minister of Libya stated his government approved of the proposal. I submitted the relevant documents to the Foreign Office in London and the Crown Office in Edinburgh. Their immediate response was that this scheme was impossible, impracticable and inherently undesirable, with the clear implication that I had taken leave of what few senses nature had endowed me with. However, from about late July 1998, following interventions supporting my “neutral venue” scheme from, amongst others, President Nelson Mandela, there began to be leaks from UK government sources to the effect that a policy change over Lockerbie was imminent; and on 24 August 1998 the governments of the United Kingdom and United States announced they had reversed their stance on the matter of a “neutral venue” trial. And after a number pitfalls were avoided, the suspects surrendered themselves for trial.
Q. What is your view of the legal process involving the case since then?
A. The outcome of the trial was a real shock. Since the day of the verdict I have consistently maintained the conviction of Abdelbaset Megrahi was contrary to the weight of the evidence and that the finding of guilt against him was a conclusion no reasonable tribunal could have reached on that evidence. I am glad to say my view appears to be shared by the Scottish Criminal Cases Review Commission, for this is one of the grounds on which it referred Megrahi’s case back to the High Court for a further appeal. As someone who has practised, taught and (as a part-time judge) administered the criminal law of Scotland for 35 years, I can confidently say that, in my opinion, the conviction of Megrahi is the worst and most blatant miscarriage of justice to have occurred in Scotland for a hundred years.
Q. What led to the formation of the Justice for Megrahi campaign?
A. What precipitated the establishment of the campaign was the refusal by the High Court to release Megrahi on bail pending his appeal, even though advanced and incurable prostate cancer had been diagnosed. The campaign is intended to create a climate of opinion in which his release on bail by the court, or his compassionate release by the Scottish Government, can be achieved so he can spend what time remains to him with his family at their house in Newton Mearns.
Q. What is your experience of meeting and working with victims’ families?
A. One of the great privileges accorded to me through my involvement in the Lockerbie case has been meeting, and forming friendships with, relatives of individuals killed aboard Pan Am 103: delightful people like Jim and Jane Swire, John and Lisa Mosey and Marina Larracoechea. My contacts with other relatives, particularly some American ones, have been less pleasurable. For some of them, anyone who expresses anything less than absolutely uncritical acceptance of the trial verdict and of Libyan culpability is a rogue and a scoundrel. How they will cope with the quashing of Megrahi’s conviction (which I believe to be inevitable if the current appeal goes the full distance) I hesitate to think.
Q. Do you have contact with Megrahi and can you give us an idea of the current state of his health?
A. I have had no direct contact with Megrahi since I visited him in Greenock Prison some considerable time before his prostate cancer was diagnosed. From recent interviews that his wife, Aisha, has given, it seems his condition is deteriorating.
Q. The second appeal hearing is due to start at the end of April. What are your expectations of that?
A. If the appeal goes the full distance, I have no doubt whatsoever that Megrahi’s conviction will be quashed. But if his medical condition deteriorates dramatically, he may decide to apply for transfer back to Libya to die there in the bosom of his family. It is a condition of applying for prisoner transfer that there be no live legal proceedings in that prisoner’s case. This means in order to qualify, Megrahi would have to abandon his present appeal. I am cynical enough about Crown Office and Scottish Government Justice Department motives to believe this is the outcome these bodies devoutly wish to achieve. There are those — civil servants and others — whose careers and reputations have been built upon the Lockerbie conviction. For them, the ideal outcome is for the current appeal to be abandoned. If it proceeds the full distance, embarrassment (and perhaps worse) are inevitable.
Q. What is it about the Lockerbie case in general that has kept you so involved over the years?
A. The injustice of it. Abdelbaset Megrahi should never have been convicted. This is so obvious to anyone who looks at the evidence and at the trial court’s judgment that there must be something wrong with a system that has already taken more than eight years to reach a point where it might just be about to be rectified.
Q. Do you think there will ever be a satisfactory conclusion to the Lockerbie case?
A. I think Megrahi’s name will be cleared. I only hope he is alive to see it. Beyond that, I doubt if we will ever now find out who or what actually caused the destruction of Pan Am 103. The political (and indeed journalistic) will to investigate what truly happened seems to me to be lacking. And people like me and like those relatives who have never been convinced by the officially-approved explanation are growing old and tired. Clearing Megrahi is the best that we can hope to achieve, I’m afraid.
Friday, 17 April 2009
Prisoner transfer agreement
A source within the Scottish Government informs me that the prisoner transfer agreement concluded between the United Kingdom and Libya on 17 November 2008 will be ratified on a date between 27 and 30 April 2009. At any time thereafter an application could be made by Abdelbaset Megrahi for repatriation to Libya. I have no information on whether it is likely that an application will be made and, if so, when. The decision on whether to grant any such application rests with the Scottish (not the UK) Government; and the Scottish First Minister is on record as saying that repatriation should not be granted to anyone convicted in respect of the Lockerbie atrocity. A cynic might, however, regard it as interesting that the prisoner transfer agreement will become operative just at the time that Mr Megrahi's current appeal is due to start; and that an application for transfer would require Mr Megrahi to abandon the appeal.
Monday, 13 April 2009
The lull before the storm
Over the Easter period, I have been on duty at Gannaga Lodge, where there is no internet or cell phone connection (one of the place’s great attractions for most of our guests). But as far as I can discern from an internet trawl, there has been no public activity on the Lockerbie front. The lull before the storm, perhaps? The first substantive session of Abdelbaset Megrahi’s appeal starts on Tuesday, 28 April.
Tomorrow I am off on a four or five day trip to Namibia. I shall try to keep up to date on developments whenever I have access to the internet, though internet cafes are not thick on the ground there.
Tomorrow I am off on a four or five day trip to Namibia. I shall try to keep up to date on developments whenever I have access to the internet, though internet cafes are not thick on the ground there.
Sunday, 5 April 2009
Ten long years
It was on this date in 1999 that Abdelbaset Megrahi and Lamin Fhimah flew from Tripoli to The Netherlands and were then handed over to the Scottish authorities for trial at Camp Zeist. Since that date Megrahi has been in Scottish custody, first as an untried prisoner and, since 31 January 2001, as a convicted prisoner. (Lamin Fhimah was acquitted and returned to Libya on that date.) Megrahi’s appeal was dismissed on 14 March 2002 and since then he has been imprisoned in Scotland (rather than in the prison attached to the Scottish Court at Zeist), first in Barlinnie and later in HMP Greenock. On 28 June 2007 the Scottish Criminal Cases Review Commission referred Megrahi’s case back to the High Court of Justiciary on the basis that his conviction might have amounted to a miscarriage of justice. The first substantive session of this second appeal is due to start on 28 April 2009, after what has seemed to many observers, including myself, to be a quite extraordinary campaign of delay and obstruction on the part of the Scottish prosecution authorities and the United Kingdom Government.
Monday, 30 March 2009
SNP in secret bid to send bomber home
[I am grateful to a kind reader for the information that the Scottish edition of yesterday's Mail on Sunday did in fact contain a story about Lockerbie and for sending me the text of the article, which appears below. Notwithstanding an assiduous search of the newspaper's website, I am still unable to find the article online (but it has been picked up in today's editions of both The Times and The Scotsman). Apart from the information that US senators' representatives have been involved in the prisoner transfer discussions, the article does not seem to add much to what was published by The Herald on 15 January 2009.]
The SNP has been engaged in secret talks that would allow the Lockerbie bomber to be freed and sent home to Libya.
A series of high-level meetings has taken place between senior SNP advisers and Libya as the Scottish Executive prepares to sign a crucial international pact on prison transfers this week.
The flurry of diplomatic activity, including at least one meeting this month, also comes as the medical condition of the man serving life for the Lockerbie bombing continues to deteriorate.
The cancer that has struck down Abdelbaset Ali Mohmed Al Megrahi has spread to his spine and pelvis.
Officially, the meetings are taking place between the UK Foreign Office and Libyan officials, as Scotland is not a sovereign state.
But The Scottish Mail on Sunday can reveal that Justice Secretary Kenny MacAskill has instructed his top official, Robert Gordon, director general of the Executive's justice department, to play a key role in the negotiations. Meetings between Mr Gordon and a Libyan delegation began last October and continued in November, January and earlier this month. The talks, in London and Edinburgh, have included dialogue with US senators.
Mr MacAskill and British officials are keen to ease US fears that Megrahi could be released to spend his last few months as a free man. Instead, the Libyan's legal team are being encouraged to apply for a Prisoner Transfer Agreement (PTA) that would see him serve the remainder of his 27-year sentence in Libya. The talks have accelerated in advance of a second appeal by Megrahi against his conviction for the murder of 270 people in 1988, due to start at the end of next month.
The complex appeal is expected to take up to a year but Megrahi's health has deteriorated so much there is speculation he may be forced to abandon the fight to clear his name. Megrahi is keen to do so in court, but as his condition worsens he is facing a dilemma over whether to continue with his appeal and face dying in prison in Scotland or abandoning the case and applying for the transfer likely to represent his only chance to spend time with his family.
Last night, officials confirmed the PTA signed between the UK and Libya in November is expected to be ratified 'in early April' and responsibility for Megrahi, should he seek a transfer, will pass to Mr MacAskill.
A spokesman for the Justice Secretary confirmed the dialogue with the Libyans and Americans. She said: 'At the request of the Libyan government, there have been meetings between Executive officials and officials of the Libyan government. 'These have been concerned with factual matters of the Scottish judicial system and how these relate to prisoner transfer agreements and other matters.
'A meeting has also taken place with US senators' representatives. This was also concerning factual matters related to the Scottish judicial system. We understand there have been similar meetings with UK Government officials.'
Mr Gordon has played a vital role in the talks, attended by top Libyan officials and Foreign Office personnel. Sources close to the Libyan delegation, which included deputy foreign minister Abdul Ati al-Obeidi, said Mr Gordon had given them every encouragement to push for a transfer. One said: 'He told them in fairly plain language that if an application came in it would be granted.'
The ratification of the PTA involves the document being laid before Parliament for 21 days to give MPs the chance to raise any issues.
The UK Ministry of Justice said it expected the UK and Libya to complete the 'relevant constitutional arrangements' by the start of April. A spokesman confirmed that any bid to transfer a prisoner would be for Scottish ministers to decide.
Professor Robert Black, QC, the architect of the trial under Scots Law in a neutral country, said: 'It has been my view for some months that every effort was being made to push Megrahi down the prisoner transfer route to avoid the embarrassment that would follow for our justice system and our governments if the appeal went ahead.'
Megrahi's legal team sought bail pending his appeal in the wake of the cancer revelation, but this was refused by the Court of Appeal. Now the Scottish authorities are expected to jump at the chance to return Megrahi to Libya, as a condition of the deal is that the prisoner must drop any legal proceedings.
The planned appeal has the potential to humiliate the Crown Office and to expose conspiracy and dirty tricks involving UK and US intelligence agents and the Scottish police. Dr Jim Swire has campaigned for 20 years for the truth since the murder of his daughter Flora. He said: 'If Megrahi agrees to seek a transfer and drop the appeal, his family will be labelled for life as the family of the Lockerbie bomber.
'I have been certain for some time the authorities were intent on pushing him down that road. The timing of the ratification of the agreement, a few weeks before the appeal, doesn't feel like a coincidence.'
The SNP has been engaged in secret talks that would allow the Lockerbie bomber to be freed and sent home to Libya.
A series of high-level meetings has taken place between senior SNP advisers and Libya as the Scottish Executive prepares to sign a crucial international pact on prison transfers this week.
The flurry of diplomatic activity, including at least one meeting this month, also comes as the medical condition of the man serving life for the Lockerbie bombing continues to deteriorate.
The cancer that has struck down Abdelbaset Ali Mohmed Al Megrahi has spread to his spine and pelvis.
Officially, the meetings are taking place between the UK Foreign Office and Libyan officials, as Scotland is not a sovereign state.
But The Scottish Mail on Sunday can reveal that Justice Secretary Kenny MacAskill has instructed his top official, Robert Gordon, director general of the Executive's justice department, to play a key role in the negotiations. Meetings between Mr Gordon and a Libyan delegation began last October and continued in November, January and earlier this month. The talks, in London and Edinburgh, have included dialogue with US senators.
Mr MacAskill and British officials are keen to ease US fears that Megrahi could be released to spend his last few months as a free man. Instead, the Libyan's legal team are being encouraged to apply for a Prisoner Transfer Agreement (PTA) that would see him serve the remainder of his 27-year sentence in Libya. The talks have accelerated in advance of a second appeal by Megrahi against his conviction for the murder of 270 people in 1988, due to start at the end of next month.
The complex appeal is expected to take up to a year but Megrahi's health has deteriorated so much there is speculation he may be forced to abandon the fight to clear his name. Megrahi is keen to do so in court, but as his condition worsens he is facing a dilemma over whether to continue with his appeal and face dying in prison in Scotland or abandoning the case and applying for the transfer likely to represent his only chance to spend time with his family.
Last night, officials confirmed the PTA signed between the UK and Libya in November is expected to be ratified 'in early April' and responsibility for Megrahi, should he seek a transfer, will pass to Mr MacAskill.
A spokesman for the Justice Secretary confirmed the dialogue with the Libyans and Americans. She said: 'At the request of the Libyan government, there have been meetings between Executive officials and officials of the Libyan government. 'These have been concerned with factual matters of the Scottish judicial system and how these relate to prisoner transfer agreements and other matters.
'A meeting has also taken place with US senators' representatives. This was also concerning factual matters related to the Scottish judicial system. We understand there have been similar meetings with UK Government officials.'
Mr Gordon has played a vital role in the talks, attended by top Libyan officials and Foreign Office personnel. Sources close to the Libyan delegation, which included deputy foreign minister Abdul Ati al-Obeidi, said Mr Gordon had given them every encouragement to push for a transfer. One said: 'He told them in fairly plain language that if an application came in it would be granted.'
The ratification of the PTA involves the document being laid before Parliament for 21 days to give MPs the chance to raise any issues.
The UK Ministry of Justice said it expected the UK and Libya to complete the 'relevant constitutional arrangements' by the start of April. A spokesman confirmed that any bid to transfer a prisoner would be for Scottish ministers to decide.
Professor Robert Black, QC, the architect of the trial under Scots Law in a neutral country, said: 'It has been my view for some months that every effort was being made to push Megrahi down the prisoner transfer route to avoid the embarrassment that would follow for our justice system and our governments if the appeal went ahead.'
Megrahi's legal team sought bail pending his appeal in the wake of the cancer revelation, but this was refused by the Court of Appeal. Now the Scottish authorities are expected to jump at the chance to return Megrahi to Libya, as a condition of the deal is that the prisoner must drop any legal proceedings.
The planned appeal has the potential to humiliate the Crown Office and to expose conspiracy and dirty tricks involving UK and US intelligence agents and the Scottish police. Dr Jim Swire has campaigned for 20 years for the truth since the murder of his daughter Flora. He said: 'If Megrahi agrees to seek a transfer and drop the appeal, his family will be labelled for life as the family of the Lockerbie bomber.
'I have been certain for some time the authorities were intent on pushing him down that road. The timing of the ratification of the agreement, a few weeks before the appeal, doesn't feel like a coincidence.'
Sunday, 29 March 2009
Clinton, Salmond and Lockerbie
This is the heading over an item posted today on the aangirfan blog. It is a commentary on the meeting held on 23 February 2009 between Scotland’s First Minister, Alex Salmond, and US Secretary of State, Hillary Clinton, and on an article described as having been published on 19 February 2009 in the Mail on Sunday (but since 19 February was a Thursday, this must be wrong). The blog post can be read here.
All quiet ...
Because of recent phone calls from journalists writing for the Scottish editions of two UK Sunday newspapers, I had expected that articles about different aspects of the Lockerbie case might appear today. One of the journalists was seeking confirmation of information he had apparently obtained about Abdelbaset Megrahi’s medical condition. Even if I had been privy to such information (which I am not) I would not, of course, have supplied it. But as far as I can discover from an internet trawl, neither newspaper has published a Lockerbie story.
Tuesday, 24 March 2009
The United Kingdom’s Strategy for Countering International Terrorism
This is the title of a lengthy document published today by the United Kingdom Home Office. Paragraph 1.07 reads in part:
"In December 1988 another commercial passenger aircraft, Pan Am 103, was destroyed by an explosive device over Scotland killing 259 people on board and 11 in the town of Lockerbie where it crashed. This operation, which caused greater loss of life than any other terrorist incident in the UK, before or since, was sponsored and conducted by the Libyan authorities; in 2001 a Libyan national was convicted and sentenced for his role in the incident."
It might perhaps have been worth mentioning that the conviction is under appeal on a reference back to the High Court of Justiciary by the Scottish Criminal Cases Review Commission. But UK Government publications on the subject of terrorism have not been noted for their concern with strict accuracy. The full document can be accessed here.
"In December 1988 another commercial passenger aircraft, Pan Am 103, was destroyed by an explosive device over Scotland killing 259 people on board and 11 in the town of Lockerbie where it crashed. This operation, which caused greater loss of life than any other terrorist incident in the UK, before or since, was sponsored and conducted by the Libyan authorities; in 2001 a Libyan national was convicted and sentenced for his role in the incident."
It might perhaps have been worth mentioning that the conviction is under appeal on a reference back to the High Court of Justiciary by the Scottish Criminal Cases Review Commission. But UK Government publications on the subject of terrorism have not been noted for their concern with strict accuracy. The full document can be accessed here.
Saturday, 21 March 2009
Crown's account of 12th procedural hearing
[The Crown Office (headquarters of the Scottish prosecution system) provides relatives of those killed aboard Pan Am 103 with accounts of proceedings in court in connection with the current Lockerbie appeal. I am grateful to one of these relatives (who, for the avoidance of doubt, is not Dr Jim Swire or, indeed, any of the UK relatives) for supplying me with the appended notes distributed by the Crown Office following the twelfth procedural hearing this past week.]
Petition for recovery of documents
On the 17th of March 2009 the Court granted an order of recovery in relation to a number of calls where they sufficiently related to the grounds of appeal and where the Court was persuaded that recovery will serve a proper purpose.
Call 1 in the appellant's petition sought material from 20 December 1988 to date showing ortending to show: (i) contact between police officers and other investigators (whether British, Maltese, German or American) and the witness Tony Gauci; and (ii) contact between prosecutor and those acting on their behalf and the witness Tony Gauci.
The Court refused to order recovery in relation to Call 1 on the basis that it was too wide and that it was not sufficiently related to any ground of appeal or any identifiable ground of appeal. The same remarks were made in relation to the refusal to grant any order for calls 1B (1.4) and 9. Call 1B (1.4) sought material relating to any US personnel contact with Tony Gauci. Call 9 sought material showing or tending to show information relating to the identity of the appellant was disclosed by the prosecuting authorities to journalists and other members of the press.
Where the Court did grant orders for recovery these were in relation to calls which were lessgeneral and more specific.
This specification was amended during the course of the hearing in February by the appellant's legal team. Some of you may have noticed reference to Call 1A and call 1B in the Opinion issued by the Court. These calls were added by the appellant during the proceedings.
In order to provide you with as much information as possible we thought it would be useful toprovide you with further detail in relation to the calls where recovery was granted by the Court.
•Call 1B (with the exception of 1.4) This call sought material relating to 21 specific areas which were listed in the appellant'spetition. For example material relating to the showing of photographs to Tony Gauci on specific dates and information on the preparation of photospreads shown on specific dates. In our note of the 23rd of February we provided a list of these calls which run from 1.1 to 1.21. These were granted with the exception of 1.4 as explained above.
•Call 1A This call sought all documents including photographs and videos showing or tending toshow the image of Abo Talb shown to Gauci on 2 October.
•Call 2 This call sought material showing or intending to show the enquiry in relation to the "potential" witness David Wright.
•Call 3 This call sought material from 5 September 1990 showing or tending to show policeactions and enquiries relating to the Feast of the Immaculate Conception (8 th December1988).
•Call 4 This call sought material showing or tending to show the conduct of the identification parade which took place on 13 April 1999 attended by the witness Tony Gauci.
Just because an order has been granted does not mean that the Crown holds any moreinformation than has already been provided to the defence. However it does require the Crown to check the material in its possession or the possession of the police forces subject to its directionto ensure that all material relating to the above calls is provided. If there is further material then this will be provided to the appellant's legal team unless there is a plea of public interest immunity by either the Crown or the UK Government.
Any material held by the Crown, which has not previously been provided to the defence and is covered by the calls granted by the Court, will require to be provided to the defence by Tuesday 9th June 2009.
Procedural Hearing 17th – 18th March 2009
People
The hearing called before three Judges - Lord Justice General, Lord Kingarth and Lord Eassie.
Counsel for the Crown are Ronald Clancy QC, Nick Gardiner and Douglas Ross
Counsel for the appellant are Maggie Scott QC, Jamie Gilchrist QC, Shelagh McCall and Martin Richardson.
Alan Summers QC appeared on behalf of the Advocate General for Scotland.
Hearing Grounds 1 and 2
The appeal hearing on Grounds 1 and 2 (Insufficient Evidence and Unreasonable Verdict) of theGrounds of Appeal is due to begin on Tuesday the 28th April 2009. The Court was addressed byMaggie Scott QC in relation to a lengthy written submission prepared by the appellant and lodged in the afternoon of the 17th March 2009. She wished to reassure the Court that the “bulk” of papers were made up of productions and authorities. She advised that the document was 298 pages long but that there were no new issues raised within the paper other than Ground 1 had subsumed into Ground 2. She did accept that there was considerably more information thancontained within the grounds of appeal.
Ronnie Clancy QC addressed the Court in relation to his concerns on the note lodged. The Crown had two weeks as of Tuesday 17th March 2009 to lodge a response to the appellant’s note and only received the 298 page document on the 17th March 2009. The Crown had only a limited opportunity to survey the note prior to the hearing but already observed that the note contained factual and legal arguments which were not contained in the original grounds of appeal. Ronnie Clancy QC indicated to the Court that of the list of 82 authorities, lodged with the note, 45 ofthose do not feature in any previous lists of authorities. There is a list of 99 productions which includes transcripts of evidence of 47 trial witnesses. Of these witnesses only 8 are mentioned in Grounds of Appeal 1 and 2. Thus there are 39 transcripts that the Crown could not reasonably have anticipated would feature in the note of argument. Moreover it is only when the note gets topage 100 that it starts to bear any resemblance to the grounds of appeal. There are detailed submissions within the note that are not mentioned in the grounds of appeal. The structure of the note does not follow the structure of the grounds of appeal which in practical terms will require the Crown to restructure their own already prepared argument to address the arguments now advanced.
Ronnie Clancy QC advised the Court that the effect of the note was such that the Crown will require to reserve its position on whether the note contains material that is outwith the scope of the grounds. In practical terms the Crown were not suggesting a requirement for an application to discharge the hearing fixed for April but the Crown would require further time to address the detailed ‘fresh’ arguments in the note. He advised the Court that it would be physically impossible to absorb all the new material in the 300 page note and prepare a response in such a short timescale.
The Court stated it was satisfied the Crown should have further time to provide a response, “in sofar as is practically possible”, to tailor its argument to the note lodged by the appellant. The Court allowed the Crown a further 2 weeks to lodge a response. This now gives the Crown until Tuesday 14th April 2009.
Hearing Grounds 3.1 – 3.1
Maggie Scott QC requested that the Crown provide further specification to the answers lodged to Grounds 3.1 to 3.3. She advised that before the appellant could consider whether the Grounds of Appeal required any adjustment further specification was required from the Crown. In addition the appellant could not decide whether any evidence should be led at the appeal before the requested specification was provided.
Ronnie Clancy QC advised the Court that the answers provided by the Crown were full and comprehensive. The Crown does not accept the principle that the appellant requires further specification because these grounds are accepted as being final grounds of appeal. He also did not accept that the Crown required to provide any further information to allow the appellant to decide whether they should lead any evidence. That was entirely a matter for them to decide. However the Crown, for its own purposes, wishes time to adjust the answers to 3.1 to 3.3. Although the Crown does not intend to provide answers to all the specific queries raised by the appellant we will address a number of them. The Crown wishes time to adjust these answers inlight of the reports recently lodged with the Court from the appellant’s trial lawyers and Counsel.
The Court allowed the Crown until Tuesday 9th June 2009 to adjust their answers to Grounds of Appeal 3.1 - 3.3. The Court stated that any adjustments to the Grounds of Appeal sought by the appellant will require leave of the Court and that any proposed adjustments should be intimated by Tuesday 23 June 2009.
The Court intimated that there will be a further procedural hearing in the week beginning the 29th June 2009. At this hearing the Court will consider the timing and further arrangements for grounds 3.1 to 3.3. No date has yet been fixed to hear these grounds. Maggie Scott QC urged the Court to fix a date for this hearing. Despite an initial estimate of 8 weeks both the defence and the Crown agreed that 12 weeks was a more realistic estimate of time required to address grounds 3.1 to 3.3. The Lord Justice General raised the possibility of splitting the hearing into segments. There was no opposition to this suggestion by any party.
Outstanding Petitions for Disclosure
There are two outstanding matters in relation to petitions for disclosure in the case. The first is formaterial in the non-prioritised grounds of appeal which fall into calls which were not argued at the February hearing. The second is in relation to a petition for recovery of scientific evidence which again relates to a non-prioritised ground of appeal. Parties agreed that given the argument in February the Court would only require to be addressed on matters specific to these petitions and this would substantially cut down the time required to argue. The Court will fix a 2 day hearing in the week beginning the 29th of June to deal with the two outstanding petitions for recovery.
Additional Information
In the course of the hearing Maggie Scott QC intimated to the Court that the appellant will not be present in Court for the appeal hearings. Apparently provisions are being made to allow the appellant to view the proceedings from Greenock prison.
Petition for recovery of documents
On the 17th of March 2009 the Court granted an order of recovery in relation to a number of calls where they sufficiently related to the grounds of appeal and where the Court was persuaded that recovery will serve a proper purpose.
Call 1 in the appellant's petition sought material from 20 December 1988 to date showing ortending to show: (i) contact between police officers and other investigators (whether British, Maltese, German or American) and the witness Tony Gauci; and (ii) contact between prosecutor and those acting on their behalf and the witness Tony Gauci.
The Court refused to order recovery in relation to Call 1 on the basis that it was too wide and that it was not sufficiently related to any ground of appeal or any identifiable ground of appeal. The same remarks were made in relation to the refusal to grant any order for calls 1B (1.4) and 9. Call 1B (1.4) sought material relating to any US personnel contact with Tony Gauci. Call 9 sought material showing or tending to show information relating to the identity of the appellant was disclosed by the prosecuting authorities to journalists and other members of the press.
Where the Court did grant orders for recovery these were in relation to calls which were lessgeneral and more specific.
This specification was amended during the course of the hearing in February by the appellant's legal team. Some of you may have noticed reference to Call 1A and call 1B in the Opinion issued by the Court. These calls were added by the appellant during the proceedings.
In order to provide you with as much information as possible we thought it would be useful toprovide you with further detail in relation to the calls where recovery was granted by the Court.
•Call 1B (with the exception of 1.4) This call sought material relating to 21 specific areas which were listed in the appellant'spetition. For example material relating to the showing of photographs to Tony Gauci on specific dates and information on the preparation of photospreads shown on specific dates. In our note of the 23rd of February we provided a list of these calls which run from 1.1 to 1.21. These were granted with the exception of 1.4 as explained above.
•Call 1A This call sought all documents including photographs and videos showing or tending toshow the image of Abo Talb shown to Gauci on 2 October.
•Call 2 This call sought material showing or intending to show the enquiry in relation to the "potential" witness David Wright.
•Call 3 This call sought material from 5 September 1990 showing or tending to show policeactions and enquiries relating to the Feast of the Immaculate Conception (8 th December1988).
•Call 4 This call sought material showing or tending to show the conduct of the identification parade which took place on 13 April 1999 attended by the witness Tony Gauci.
Just because an order has been granted does not mean that the Crown holds any moreinformation than has already been provided to the defence. However it does require the Crown to check the material in its possession or the possession of the police forces subject to its directionto ensure that all material relating to the above calls is provided. If there is further material then this will be provided to the appellant's legal team unless there is a plea of public interest immunity by either the Crown or the UK Government.
Any material held by the Crown, which has not previously been provided to the defence and is covered by the calls granted by the Court, will require to be provided to the defence by Tuesday 9th June 2009.
Procedural Hearing 17th – 18th March 2009
People
The hearing called before three Judges - Lord Justice General, Lord Kingarth and Lord Eassie.
Counsel for the Crown are Ronald Clancy QC, Nick Gardiner and Douglas Ross
Counsel for the appellant are Maggie Scott QC, Jamie Gilchrist QC, Shelagh McCall and Martin Richardson.
Alan Summers QC appeared on behalf of the Advocate General for Scotland.
Hearing Grounds 1 and 2
The appeal hearing on Grounds 1 and 2 (Insufficient Evidence and Unreasonable Verdict) of theGrounds of Appeal is due to begin on Tuesday the 28th April 2009. The Court was addressed byMaggie Scott QC in relation to a lengthy written submission prepared by the appellant and lodged in the afternoon of the 17th March 2009. She wished to reassure the Court that the “bulk” of papers were made up of productions and authorities. She advised that the document was 298 pages long but that there were no new issues raised within the paper other than Ground 1 had subsumed into Ground 2. She did accept that there was considerably more information thancontained within the grounds of appeal.
Ronnie Clancy QC addressed the Court in relation to his concerns on the note lodged. The Crown had two weeks as of Tuesday 17th March 2009 to lodge a response to the appellant’s note and only received the 298 page document on the 17th March 2009. The Crown had only a limited opportunity to survey the note prior to the hearing but already observed that the note contained factual and legal arguments which were not contained in the original grounds of appeal. Ronnie Clancy QC indicated to the Court that of the list of 82 authorities, lodged with the note, 45 ofthose do not feature in any previous lists of authorities. There is a list of 99 productions which includes transcripts of evidence of 47 trial witnesses. Of these witnesses only 8 are mentioned in Grounds of Appeal 1 and 2. Thus there are 39 transcripts that the Crown could not reasonably have anticipated would feature in the note of argument. Moreover it is only when the note gets topage 100 that it starts to bear any resemblance to the grounds of appeal. There are detailed submissions within the note that are not mentioned in the grounds of appeal. The structure of the note does not follow the structure of the grounds of appeal which in practical terms will require the Crown to restructure their own already prepared argument to address the arguments now advanced.
Ronnie Clancy QC advised the Court that the effect of the note was such that the Crown will require to reserve its position on whether the note contains material that is outwith the scope of the grounds. In practical terms the Crown were not suggesting a requirement for an application to discharge the hearing fixed for April but the Crown would require further time to address the detailed ‘fresh’ arguments in the note. He advised the Court that it would be physically impossible to absorb all the new material in the 300 page note and prepare a response in such a short timescale.
The Court stated it was satisfied the Crown should have further time to provide a response, “in sofar as is practically possible”, to tailor its argument to the note lodged by the appellant. The Court allowed the Crown a further 2 weeks to lodge a response. This now gives the Crown until Tuesday 14th April 2009.
Hearing Grounds 3.1 – 3.1
Maggie Scott QC requested that the Crown provide further specification to the answers lodged to Grounds 3.1 to 3.3. She advised that before the appellant could consider whether the Grounds of Appeal required any adjustment further specification was required from the Crown. In addition the appellant could not decide whether any evidence should be led at the appeal before the requested specification was provided.
Ronnie Clancy QC advised the Court that the answers provided by the Crown were full and comprehensive. The Crown does not accept the principle that the appellant requires further specification because these grounds are accepted as being final grounds of appeal. He also did not accept that the Crown required to provide any further information to allow the appellant to decide whether they should lead any evidence. That was entirely a matter for them to decide. However the Crown, for its own purposes, wishes time to adjust the answers to 3.1 to 3.3. Although the Crown does not intend to provide answers to all the specific queries raised by the appellant we will address a number of them. The Crown wishes time to adjust these answers inlight of the reports recently lodged with the Court from the appellant’s trial lawyers and Counsel.
The Court allowed the Crown until Tuesday 9th June 2009 to adjust their answers to Grounds of Appeal 3.1 - 3.3. The Court stated that any adjustments to the Grounds of Appeal sought by the appellant will require leave of the Court and that any proposed adjustments should be intimated by Tuesday 23 June 2009.
The Court intimated that there will be a further procedural hearing in the week beginning the 29th June 2009. At this hearing the Court will consider the timing and further arrangements for grounds 3.1 to 3.3. No date has yet been fixed to hear these grounds. Maggie Scott QC urged the Court to fix a date for this hearing. Despite an initial estimate of 8 weeks both the defence and the Crown agreed that 12 weeks was a more realistic estimate of time required to address grounds 3.1 to 3.3. The Lord Justice General raised the possibility of splitting the hearing into segments. There was no opposition to this suggestion by any party.
Outstanding Petitions for Disclosure
There are two outstanding matters in relation to petitions for disclosure in the case. The first is formaterial in the non-prioritised grounds of appeal which fall into calls which were not argued at the February hearing. The second is in relation to a petition for recovery of scientific evidence which again relates to a non-prioritised ground of appeal. Parties agreed that given the argument in February the Court would only require to be addressed on matters specific to these petitions and this would substantially cut down the time required to argue. The Court will fix a 2 day hearing in the week beginning the 29th of June to deal with the two outstanding petitions for recovery.
Additional Information
In the course of the hearing Maggie Scott QC intimated to the Court that the appellant will not be present in Court for the appeal hearings. Apparently provisions are being made to allow the appellant to view the proceedings from Greenock prison.
Wednesday, 18 March 2009
The High Court's disclosure decision
Three Scottish daily newspapers today print accounts of the High Court's decision to order the disclosure to Mr Megrahi's lawyers of documents relevant to his present appeal. The Herald's article (which is the most detailed) can be read here. The following are extracts:
'Three senior judges yesterday ordered 45 pieces of key evidence to be handed over to the legal team representing the man convicted of the Lockerbie bombing in an embarrassing setback for the Crown Office.
'The vital documents include a secret fax that could discredit a key prosecution witness.
'The court of criminal appeal in Edinburgh ordered prosecutors to find and disclose the different evidence, which has so far been kept secret from the defence. (...)
'The Libyan's defence team applied to see 48 documents, which included a fax they claim places a fundamental question mark against the original trial testimony of Tony Gauci, who sold clothes later found in the wreckage of PanAm 103 at Lockerbie.
'The judges rejected three of the requests, including demands for information about the number of times police and US agencies had contact with Mr Gauci.
'However, the onus will now be on the Crown to identify and share a range of other undisclosed documents, including those expected to show that Scottish police recommended to US authorities that both the main witness in the trial and his brother should be paid a reward of up to $3m, or $1.5m. (...)
'Libyan authorities have been encouraged to apply for a prisoner transfer to allow Megrahi to spend his remaining time with his family, but this would mean dropping the appeal, which he is not prepared to do.'
The Scotsman's article can be read here; and the Daily Record's here.
Apart from these reports on the court's disclosure decision, I have found no press reports of proceedings at the ongoing twelfth procedural hearing.
'Three senior judges yesterday ordered 45 pieces of key evidence to be handed over to the legal team representing the man convicted of the Lockerbie bombing in an embarrassing setback for the Crown Office.
'The vital documents include a secret fax that could discredit a key prosecution witness.
'The court of criminal appeal in Edinburgh ordered prosecutors to find and disclose the different evidence, which has so far been kept secret from the defence. (...)
'The Libyan's defence team applied to see 48 documents, which included a fax they claim places a fundamental question mark against the original trial testimony of Tony Gauci, who sold clothes later found in the wreckage of PanAm 103 at Lockerbie.
'The judges rejected three of the requests, including demands for information about the number of times police and US agencies had contact with Mr Gauci.
'However, the onus will now be on the Crown to identify and share a range of other undisclosed documents, including those expected to show that Scottish police recommended to US authorities that both the main witness in the trial and his brother should be paid a reward of up to $3m, or $1.5m. (...)
'Libyan authorities have been encouraged to apply for a prisoner transfer to allow Megrahi to spend his remaining time with his family, but this would mean dropping the appeal, which he is not prepared to do.'
The Scotsman's article can be read here; and the Daily Record's here.
Apart from these reports on the court's disclosure decision, I have found no press reports of proceedings at the ongoing twelfth procedural hearing.
Tuesday, 17 March 2009
High Court orders further disclosure
At the eleventh procedural hearing held on 18 to 20 February, Abdelbaset Megrahi's legal team sought disclosure from the Crown of further documents relevant to his appeal. In delivering its judgment today, the High Court acceded to this request. The following extracts are from the BBC News website:
'Judges have ordered prosecutors to hand over more undisclosed documents they may have concerning a crucial witness at the trial of the Lockerbie bomber.
'Abdel Baset Al Megrahi's lawyers went to the Court of Criminal Appeal in Edinburgh seeking further material for the appeal against his conviction. (...)
'The Crown said it believed it had already handed over all the documents sought by the defence.
'The material being sought includes records, logs, notes and police computer entries concerning a sighting by Maltese shopkeeper Tony Gauci of a clothes buyer in September 1989. (...)
'The material wanted by defence lawyers also includes any documents on a meeting between police and Mr Gauci and an interview held with him.
'It further includes material over aspects of an ID parade held at Zeist in April 1999, attended by Mr Gauci, at which Megrahi was paraded.
'In the grounds of appeal lodged on behalf of Megrahi, those relating to the evidence of Mr Gauci run to almost 150 pages.
'More documentation is also sought of contact between police and other investigators with a potential witness, David Wright.
'Mr Wright did not give evidence at Megrahi's trial but it is said he "may have material evidence to give bearing on the identification of the appellant as the purchaser of goods associated with the Lockerbie incident".
'The Lord Justice General, Lord Hamilton, said: "Without expressing any view on the adequacy of the steps already taken by the Crown to satisfy the claims for recovery, we consider that the appropriate course at this stage is to identify the classes of document which, if they exist, the appellant is in our judgement entitled to recover."
'Lord Hamilton, sitting with Lord Kingarth and Lord Eassie, said: "The Advocate General has not yet scrutinised all the material on behalf of the United Kingdom Government.
'"It is possible that objections, based on legal privilege, might yet be made on the part of other governments or agencies.
'"The order which we shall pronounce will be subject to due consideration of any such objections."'
The full report can be read here.
'Judges have ordered prosecutors to hand over more undisclosed documents they may have concerning a crucial witness at the trial of the Lockerbie bomber.
'Abdel Baset Al Megrahi's lawyers went to the Court of Criminal Appeal in Edinburgh seeking further material for the appeal against his conviction. (...)
'The Crown said it believed it had already handed over all the documents sought by the defence.
'The material being sought includes records, logs, notes and police computer entries concerning a sighting by Maltese shopkeeper Tony Gauci of a clothes buyer in September 1989. (...)
'The material wanted by defence lawyers also includes any documents on a meeting between police and Mr Gauci and an interview held with him.
'It further includes material over aspects of an ID parade held at Zeist in April 1999, attended by Mr Gauci, at which Megrahi was paraded.
'In the grounds of appeal lodged on behalf of Megrahi, those relating to the evidence of Mr Gauci run to almost 150 pages.
'More documentation is also sought of contact between police and other investigators with a potential witness, David Wright.
'Mr Wright did not give evidence at Megrahi's trial but it is said he "may have material evidence to give bearing on the identification of the appellant as the purchaser of goods associated with the Lockerbie incident".
'The Lord Justice General, Lord Hamilton, said: "Without expressing any view on the adequacy of the steps already taken by the Crown to satisfy the claims for recovery, we consider that the appropriate course at this stage is to identify the classes of document which, if they exist, the appellant is in our judgement entitled to recover."
'Lord Hamilton, sitting with Lord Kingarth and Lord Eassie, said: "The Advocate General has not yet scrutinised all the material on behalf of the United Kingdom Government.
'"It is possible that objections, based on legal privilege, might yet be made on the part of other governments or agencies.
'"The order which we shall pronounce will be subject to due consideration of any such objections."'
The full report can be read here.
Sunday, 15 March 2009
Twelfth (public) procedural hearing
The final procedural hearing before the commencement on 28 April of the first substantive session (insufficient evidence to warrant conviction; verdict unreasonable on evidence led) of the appeal, will be held in the High Court of Justiciary in Edinburgh on Tuesday 17th, Wednesday 18th and Thursday 19th March 2009. The Tuesday hearing will start at 2pm, the others at or around 10am.
Saturday, 14 March 2009
Milliband on Binyam Mohamed PII assertion
In a letter in today's edition of The Guardian, the Foreign Secretary, David Milliband, says this:
'It is factually wrong to say that we tried to conceal potentially exculpatory material from Mr Mohamed's defence counsel.
'Far from withholding documents, it was the British government which pressed for and secured the release of these documents by the US to his defence counsel in October 2008. This was the result of strenuous efforts on our part, as the high court said. We also disclosed considerable UK intelligence material in the court proceedings in this country, which was discussed at length in the court's publicly available judgments from last August onwards. We have also made that material available to parliament's intelligence and security committee, the body with the constitutional responsibility for the oversight of the work of the intelligence and security agencies.
'The point in issue in the recent judgment of the high court was not that, but whether the courts in one country should order the public disclosure of another country's intelligence material without that country's permission. We argued that they should not, given the fundamental principle that intelligence documents are shared on the basis of confidentiality, and should only be disclosed by the originators of the information.'
Whatever the UK Foreign Office's stance may have been in the Binyam Mohamed case, in Abdelbaset Megrahi's current appeal there is no doubt whatsoever that the FCO tried to conceal potentially exculpatory material from Mr Megrahi's defence counsel -- and that it succeeded, the relevant material being disclosed only to a special (security-vetted) advocate and not to Megrahi's chosen legal team.
'It is factually wrong to say that we tried to conceal potentially exculpatory material from Mr Mohamed's defence counsel.
'Far from withholding documents, it was the British government which pressed for and secured the release of these documents by the US to his defence counsel in October 2008. This was the result of strenuous efforts on our part, as the high court said. We also disclosed considerable UK intelligence material in the court proceedings in this country, which was discussed at length in the court's publicly available judgments from last August onwards. We have also made that material available to parliament's intelligence and security committee, the body with the constitutional responsibility for the oversight of the work of the intelligence and security agencies.
'The point in issue in the recent judgment of the high court was not that, but whether the courts in one country should order the public disclosure of another country's intelligence material without that country's permission. We argued that they should not, given the fundamental principle that intelligence documents are shared on the basis of confidentiality, and should only be disclosed by the originators of the information.'
Whatever the UK Foreign Office's stance may have been in the Binyam Mohamed case, in Abdelbaset Megrahi's current appeal there is no doubt whatsoever that the FCO tried to conceal potentially exculpatory material from Mr Megrahi's defence counsel -- and that it succeeded, the relevant material being disclosed only to a special (security-vetted) advocate and not to Megrahi's chosen legal team.
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