Megrahi will not return home as a hero

[This is the headline over an article, which I have just discovered, by Ben Borland in the edition of the Sunday Express of 14 June. It reads as follows:]

Colonel Gaddafi has vowed not to give Megrahi a hero’s welcome if he is returned to Libya next month.

Tripoli has agreed to keep the homecoming “very low profile” amid fears of hindering the country’s renewed relations with the West.

It is understood the Scottish Government is concerned about a repeat of triumphant scenes when Megrahi’s co-accused Al-Amin Khalifa Fhimah was acquitted of the bombing in 2001.

A source close to the Libyan authorities said: “A triumphant return is not on the cards.

“Megrahi will most likely end up in a hospice, rather than a villa overlooking the Mediterranean.”

Justice Secretary Kenny MacAskill has until the end of July to rule on Megrahi.

A Scottish Government spokesman said: “The decision will be one made on judicial grounds. Economic and political considerations have no place in the process.”

Megrahi in quandary over option to abandon court fight

The Libyan convicted of the Lockerbie bombing has still not decided whether to abandon his fight to clear his name, an MSP said after visiting him yesterday.

Christine Grahame, SNP member for the south of Scotland, said Abdelbaset Ali Mohmed al Megrahi was struggling to make the choice while suffering "severe pain" from prostate cancer.

Libyan authorities have filed an application to have him moved to his home country, but the transfer cannot go ahead while legal proceedings are still ongoing.

Al Megrahi is currently pursuing an appeal against his conviction, but he would have to drop it in order to get back to Africa and see his family.

The 57-year-old, serving a life sentence for the 1988 bombing of Pan Am flight 103 that killed 270 people, is thought unlikely to survive long enough for a second part of the appeal continuing next spring.

After her 90-minute visit to Greenock Prison yesterday afternoon, Ms Grahame said: "He is a man who is in a great quandary about what he should do. He's got this major decision to take at some point.

"Overall I think he is dealing very well with the circumstances he finds himself in.

"He is in severe pain. His health is deteriorating, both his physical and emotional health.

"I think the issue for Mr Megrahi is that he would want the appeal to continue but at the same time he is desperate to see his family."

Ms Grahame is certain that his relatives would press for a public inquiry in the event of his death, she added.

The South of Scotland MSP also spoke of a Dutch TV documentary that she said showed that a key piece of evidence was taken out of Scotland without the proper documentation. The circuit board used as a bomb trigger had been removed to America, she said, undermining the reliability of Al Megrahi's conviction.

"Lord Peter Fraser, who was the Lord Advocate at the time, has said it never left Scotland - so my challenge to the Lord Fraser is, what did the Crown know at the time about that circuit board, what did you know, can you come and tell us and tell the public?" she added.

Lord Fraser declined to comment.

[The above is The Herald's report on Christine Grahame MSP's meeting with Abdelbaset Megrahi on Tuesday, 16 June. The report on the BBC News website can be read here; and that on the Southern Reporter's website here.]

MSP to have second meeting with Megrahi

[A Member of the Scottish Parliament] is meeting the Libyan convicted of the Lockerbie bombing in prison. Christine Grahame will visit Abdelbaset Ali Mohmed al Megrahi in Greenock Prison.

A spokesman for the SNP MSP said she will make a "substantive" statement following the visit.

Al Megrahi was diagnosed with prostate cancer last year and later failed to be freed on bail pending his appeal, which got under way at the end of April in Edinburgh.

Libyan authorities have applied for Al Megrahi to be moved to Libya under a prisoner-transfer treaty between Libya and the UK.

But no decision on this can be made by Scottish Justice Minister Kenny MacAskill if there are outstanding legal proceedings.

Ms Grahame, MSP for South of Scotland, paid an hour-long visit to Al Megrahi last month in Greenock Prison, where he is serving a life sentence for the 1988 bombing which killed 270 people.

After the last visit she said: "The man is obviously very ill and he is desperate to see his family - absolutely desperate to see his family - so, whatever it takes, that's the priority."

Asked if Al Megrahi plans to press on with his appeal, she said: "I can't say that - that is for him to say through his lawyers."

[From an article published today on the website of the Midlothian Advertiser. The report is attributed to the Press Association news agency.]

Cabinet Secretary for Justice on prisoner transfer

George Foulkes (Lothians) (Lab): To ask the Scottish Executive when it expects to respond to the request by the Libyan authorities for the transfer of Abdelbaset Ali Mohmed Al Megrahi.

(S3W-23693) 19 May 2009

Kenny MacAskill: The Prisoner Transfer Agreement states that "The requested State shall inform the State requesting the transfer of its decision whether or not to agree to the requested transfer, normally within 90 days of the receipt of the request. If a decision cannot be notified within 90 days of the request, the requested State shall inform the requesting State of the reasons for any delay and use best endeavours to notify the requesting State of its decision as soon as possible."

Whilst I will deal with this application expeditiously I will consider it thoroughly and will ensure I have all relevant information available to me before reaching decisions.


Nigel Don (North East Scotland) (SNP): To ask the Scottish Executive, further to the answer to question S3W-23693 by Kenny MacAskill on 19 May 2009, what consideration it will give to the views of the people affected by the Lockerbie air disaster in considering the application for the repatriation of Mr Abdelbaset Ali Mohmed Al Megrahi.

(S3W-24638) 9 June 2009

Kenny MacAskill: The Scottish Government has received a number of representations relating to the application submitted by the Libyan Government for transfer of Mr Megrahi.

As I stated previously, I am considering the application thoroughly and will ensure I have all relevant information available to me before reaching decisions. The application is being considered with regard to the terms of the Prisoner Transfer Agreement and appropriate judicial procedures. Economic and political considerations have no place in this process.

The Lockerbie Air Disaster remains the most serious terrorist atrocity committed in the United Kingdom. I am aware of the pain and grief still being experienced by many people whose lives were affected by it both here in Scotland and across the world. As part of my consideration of the application, I will be meeting with groups and individuals who have submitted relevant representations to the Scottish Government and listening to their views.

House of Lords ruling on secret evidence

Three terror suspects whose freedom is restricted by control orders have won a legal battle in the House of Lords over the use of secret evidence.

Nine Law Lords unanimously ruled it was unfair individuals should be kept in ignorance of the case against them. (...)

Ruling in favour of the men Lord Phillips of Worth Matravers, the senior Law Lord on the case, said: "A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him.

"If the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.

"The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations."

Lord Hope of Craighead added: "The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible.

"But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by [legal] principle. It must insist that the person affected be told what is alleged against him."

[The above is an extract from a report on the BBC News website. The full text can be read here. The judges' opinions in the case can be read here. The actual decision was made in the context of control orders against terrorist suspects. But it clearly has implications for Government claims of public interest immunity, and the "special advocate" system, in cases such as that of Abdelbaset Megrahi. The decision is a highly authoritative one. Nine Lords of Appeal sat on it (the normal quorum is five) and they were unanimous.]

FCO explanatory memorandum on prisoner transfer

The UK Foreign and Commonwealth Office's Explanatory Memorandum on a Treaty between the United Kingdom and Libya on the Transfer of Prisoners can be read here. The treaty provides the framework for the recent Libyan Government application for the transfer of Abdelbaset Megrahi from Scotland to Libya. The decision on this application rests with the Scottish, not the UK, Government.

I am grateful to Professor John Grant for supplying this reference.

2nd Circuit sends dispute over Lockerbie fees back to lower court

A dispute over the allocation of attorney fees in the settlement of claims against Libya for the bombing of Pan Am Flight 103 over Lockerbie, Scotland, is headed back to the district court.

The 2nd US Circuit Court of Appeals found three "significant" errors plagued a judge's decision ordering Emery Celli Brinckerhoff & Abady to pay from its contingency fees $1.44 million, 21.3 percent of what it had then earned from the case, to a plaintiffs' committee, whose lead counsel until his death in 2003 was Lee S. Kreindler of Kreindler & Kreindler. (...)

Libya eventually agreed to pay $10 million to each plaintiff, although it withheld $2 million of this amount until May 2006, when the U.S. State Department removed the country from its State Sponsors of Terrorism list.

All but one of the 270 decedents accepted the settlement. Of those 269 parties, 240 were represented by members of the plaintiffs' committee. The remaining 29 parties were advised by 14 other counsel -- six by Emery Celli Brinckerhoff & Abady.

Eventually, all of the non-committee counsel except Emery Celli agreed to pay the plaintiffs' committee a portion of their fees equal to 3 percent of their clients' recoveries. The plaintiffs' committee used part of those payments for expenses it said it had incurred on behalf of all plaintiffs. It donated the remainder to a nonprofit foundation established in the name of Kreindler that has endowed a chair at Harvard Law School and a conference center at Dartmouth College, both in his name.

As justification for refusing to pay the fee, Emery Celli argued that it had performed a key role in lobbying Congress to change the law to permit suits against Libya to go forward. According to the circuit decision, the firm also objected to the use of the fees for "nonprofit causes unrelated to victims' rights or anti-terrorism, serving instead to glorify Lee S. Kreindler's legacy." (...)

Richard D. Emery said Friday that the plaintiffs' committee had done excellent work but had ridden "our coattails" when it came to the crucial change in the law that held Libya accountable.

"This was a huge effort on our part on behalf of Paul Hudson in what was Paul's heroic fight to hold Libya accountable before the Foreign Sovereign Immunities Act allowed any redress."

Emery noted that it was the initial dismissal of the case, and an affirmation of that dismissal by the 2nd Circuit, that triggered a "political outcry" and action by Congress, which "was the only reason that Kreindler and the other families ultimately won."

[From the Law.com website. The full text of the article can be read here.]

Compassion call in bomber appeal

A “compassionate country” would let the terminally ill Lockerbie bomber return home to Libya AND continue his appeal, according to a retired Scottish law professor.

Responding to a leaked report on Abdelbaset Ali Mohmed Al Megrahi’s psychological state, Professor Robert Black QC said it was a “tragedy” the Libyan could only return home if he abandoned the quest to clear his name.

The confidential medical report, leaked to a Scottish national newspaper, is said to have been written by a consultant clinical psychologist and commissioned by the Libyan consul. It is said to warn that Megrahi is suffering high levels of emotional and psychological distress and highlights the detrimental effect of his social and cultural isolation.

Professor Black, who was born and grew up in Lockerbie and is one of the founders of the Justice for Megrahi campaign, said a reason for the refusal of a bail application last November was that Megrahi would receive the best possible treatment for his cancer in Greenock Prison.

He said: “It is difficult to see how this assurance can be reconciled with the total absence of psychological counseling provided or offered by the prison service. It is unsurprising that, given this, he should now wish to be returned to his own country where he can be supported in his last weeks or months by his family and friends.”

The first stage of Megrahi’s appeal was heard in court in Edinburgh last month. At the same time Libya applied for the return of the bomber to them under the recently ratified Prisoner Transfer Agreement between Libya and the UK. The Scottish Government will rule on the application but could only grant it if Megrahi dropped his appeal.

Professor Black, credited as one of the architects of the original court case at Camp Zeist in Holland, said: “What a civilised country would do is grant him compassionate release (which is within the power of the Scottish Government) to return to Libya while allowing his appeal to proceed.

“But I fear there are too many vested interests which wish the appeal to be aborted and the legitimate concerns over his conviction to be swept under the carpet.”

The Libyan, who was diagnosed with prostate cancer last year, was convicted of the bombing of Pan Am flight 103, which exploded over Lockerbie in December 1988 killing 270 people, in 2001. A first appeal against the conviction was unsuccessful but Megrahi’s case was put forward for a second appeal after the Scottish Criminal Cases Review Commission found he may have been the victim of a miscarriage of justice.

[This is the text of an article by Carol Hogarth in this week's edition of Lockerbie's local newspaper, the Annandale Herald.]

Libya's UN circus

This is the headline over an article by columnist Ian Williams on The Guardian's website. The article is critical of the likely forthcoming election of Libya to the 2009-2010 presidency of the General Assembly of the United Nations. Here are a few sentences:

'Interestingly, since Gaddafi paid blood money for Lockerbie, helped shop the IRA, renounced nuclear weapons, quietened down about Israel, and opened up the oil wells even more to western involvement, Washington and London seem to have overcome the visceral horror that once had them fighting to keep Libya off the security council. It is arguable that Libya got a raw deal over the Lockerbie bombing, albeit not as raw as its citizen Abdelbaset Ali Mohmed al-Megrahi who is dying of cancer in a Scottish prison while his appeal against a 27-year sentence is heard. The case against him and Libya was circumstantial and politically motivated.

'London and Washington may have been attacking Libya for the wrong reasons in the past – but there were plenty of substantial reasons for holding the regime up for scrutiny and despite its more accommodating foreign policy, little has changed inside the country.'

Politische Justiz: das Beispiel Lockerbie

For readers of German, an interesting recent account of the Lockerbie affair, from the Trüten website, can be accessed here.

Deliberate information diffusion?

The Lallands Peat Worrier blog contains an interesting post following on from the Lucy Adams article in The Herald which forms the subject of the immediately preceding entry on this blog. The post can be read here. The anonymous author apparently attended a lecture by me in The Edinburgh Law School in 2004 and -- which must be unique -- remembers it.

The psychological state of Abdelbaset Megrahi

Stricken by cancer, desperate to see his mother …

Little is known about the man who has already served 10 years in prison for the bombing of Pan Am 103 in December 1988.

Famous for being convicted of the worst terrorist atrocity on mainland Britain, which killed 270, the only things most people are aware of about Abdelbaset Ali Mohmed al Megrahi are the bare facts of his trial and appeals .

But the psychological report commissioned by the Libyan consul earlier this year reveals details of a man dedicated to his family.

It explains that, among his seven siblings, he has always had a strong attachment to his 85-year-old mother. She cannot visit him because of arthritis.

The report states: "Of all the children he was, and remains, particularly close to his mother who is now 85; since being in prison he has phoned her every day and every day she says that she hopes to see him again before she dies."

It also talks about his dedication to prayer and says his daily routine revolves around going to sleep after his final prayers at 9pm, and rising to pray at 4.30am.

The reports states: "There is little doubt that Mr. Megrahi is suffering high levels of emotional and psychological distress.

"He is not only dealing with a progressive fatal illness and unpleasant side-effects from his treatment, but also the stressful uncertainty of his prognosis.

"Unlike most people with cancer he is unable to access any form of confiding support.

"There is a lack of culturally appropriate support to enable Mr. Megrahi to give vent to the very natural emotions he is feeling and, in the face of his mortality, to adjust to and make peace with his impending death.

"Although his religion is a source of great solace, he is highly frustrated by his inability to care for his family."

Fiercely private, Megrahi has tried to keep his personal details and family out of the media spotlight.

The diagnosis in September last year of terminal prostate cancer has changed this. In December, his family spoke out for the first time and his wife Aisha Megrahi publicly pleaded for his release to allow him to spend his remaining time with her and their five children.

"Please release him so he can spend what few days he has left at home with his family," she told The Herald.

Megrahi's conviction in 2001 was seen as a huge triumph for the Scottish legal establishment and a symbol of changing international relations. However, serious doubts about his guilt have grown ever since.

A successful appeal would prove highly embarrassing, not just for the Scottish judicial system. It is understood some members of the UK and American security agencies would prefer the case not to be reopened publicly.

Talks to establish a Prisoner Transfer Agreement (PTA) between Libya and the UK began in 2005 but the Foreign and Commonwealth Office consistently denied that such discussions bore any relevance to Megrahi.

Such denials look particularly flimsy now that Libya has in fact applied to transfer Megrahi. At this stage it is a government-to-government application. The decision on whether to allow the transfer will be down to Scottish ministers, but it cannot be signed off unless Megrahi himself agrees to drop the appeal.

Despite seemingly interminable delays, his new appeal began in April. But with hopes of clearing his name so close to realisation, he has to face up to the fact he may not live to see its conclusion.

Faced with deciding to pursue the appeal - expected to be one of the most complex in Scottish legal history - and have the prospect of dying thousands of miles from home in a Scots prison, or drop the legal proceedings and apply for a transfer to Libya, it is impossible to say what he should or will do, but officials are working behind the scenes to persuade him to opt for the latter option.

In the meantime he has been forced to choose between a slow and lengthy appeal during which he is isolated from his family and which he may not live to see the end of, or applying to return to his home country and seeing his family before he dies. Few would blame him for choosing to return.

The psychological report concludes: "In my view it is self-evident that Mr Megrahi would be considerably less stressed, and at lower risk of depression, if he were able to be with his family, to receive their care and to be able to plan for their future. The prison environment adds to what is already a highly stressful situation for him and I have no doubt that a home environment would be highly beneficial to his psychological health, if not his physical health. It would also mean that he would be able to receive culturally sensitive care and support from others.

"At the very least, while he remains in prison he should be offered regular emotional support from someone trained in doing so, and preferably from someone who understands Mr Megrahi's cultural background and needs."

[The above is an article by Lucy Adams in today's edition of The Herald. A much shorter version of the same story from the Daily Record website can be accessed here.

The reasons for the very long absence of posts on this blog are that (a) I had to make a short visit to Scotland and (b) since my return to South Africa the phone lines in my remote part of the Northern Cape have been out of order and so I have been unable to access the internet.]

End of first stage of appeal

The first stage of Abdelbaset Megrahi's appeal did in fact end yesterday. Here is what the Lord Justice General (Lord Hamilton) said at the conclusion of the proceedings:

'The court is much obliged to counsel on either hand for the careful and comprehensive submissions which have been made at this stage of the appeal. We will now, of course, require to give these submissions detailed and careful consideration. A question will arise as to whether it is appropriate to decide grounds 1 and 2 at this stage or, alternatively, to defer that decision until we have heard argument on other grounds, which are or may be closely related to them.

'We appreciate that having regard to, among other things, the appellant's state of health there will be concern that we deal with these matters as expeditiously as possible. But having regard to their importance to all concerned, we cannot and must not rush to judgment.

'Time has been set aside towards the end of this term for a procedural hearing in relation to further grounds of appeal. And in terms of the interlocutor of 18 March of this year, days were set aside in the week commencing 29 June for that purpose. For reasons which it is not necessary to go into, we intend to change that date or dates to dates in the week following that, that is the week commencing 6 July. We expect that by that time we will have reached a decision as to whether or not we should decide grounds 1 and 2 at this stage and to be able to intimate which course of action, either deciding them at this stage or deferring them, we have decided upon.

'But by this time, we shall simply continue the appeal to the first of the dates which are now substituted for the procedural matters which we have referred to, that is to Tuesday 7 July of this year.'

Media accounts have been provided by BBC News and by The Scotsman.

Is the first stage of the appeal over?

The Crown was due to end its submissions at today’s session of Abdelbaset Megrahi’s current appeal. Whether it did, in fact, do so and whether the first stage of the appeal accordingly came to an end, I cannot say since no media organisation has seen fit as yet to enlighten us. Perhaps tomorrow’s newspapers will let us know. But, given the paucity of the coverage to date, I would not recommend holding your breath.

After the conclusion of the first stage, the court is due to recess for a month before starting the second stage which is expected to be largely devoted to challenging the evidence of Tony Gauci and the conclusions that the trial court reached on that evidence.

Malta could have done more to reject Lockerbie claims - UN monitor

[This is the headline over an article by Caroline Muscat in today's edition of The Sunday Times, Malta. It reads as follows:]

The man convicted of the Lockerbie bombing is not guilty as charged and there is no convincing argument for Malta's involvement in the terrorist act, according to the United Nations' appointed monitor of the trial in the Netherlands.

Hans Koechler, who was handpicked by the then UN Secretary-General Kofi Annan to monitor proceedings, told The Sunday Times: "I never really understood why the government of Malta did so little to reject these allegations and to defend the integrity of the country's civil aviation system."

Twenty years after the bombing, the government has gone no further than saying that it is monitoring proceedings of the second appeal. Air Malta did not comment.

Malta was implicated in the terrorist act because the prosecution had argued that Abdel Basset Al-Megrahi and Al-Amin Khalifa Fahima had placed the bomb on an Air Malta aircraft before it was transferred at Frankfurt airport on board the doomed Pan Am flight 103A.

The flight went to London Heathrow and was bound for New York's JFK airport before exploding over Lockerbie in Scotland an hour into the journey on December 21, 1988. All 259 people on board died as well as 11 locals on the ground.

The trial at Camp Zeist in the Netherlands had led the Scottish judges to conclude in 2001 that Mr Al-Megrahi was guilty. He was jailed for life while the other defendant was released.

In his report after the verdict, Dr Koechler had concluded that a miscarriage of justice may have occurred. Several years on, he stands by his conclusions: "The court did not come up with any convincing argument that Mr Al-Megrahi is the one who bought the clothes at the shop in Malta and that the 'bomb suitcase' was loaded at Luqa Airport."

Dr Koechler expressed doubt that Mr Al-Megrahi's ongoing appeal, which started on April 28, could be fair and impartial because of the "outright interference of the British government trying to withhold certain sensitive evidence from the defence".

He said political expediency had guided the original verdict, saying it reflected the political considerations related to the foreign policy interests of the involved states at that time.

One of Malta's leading lawyers, who had formed part of the legal team in the defence of the two Libyan suspects, also believes Mr Al-Megrahi is innocent.

Emmanuel Mallia told The Sunday Times: "I personally know the accused and have always firmly believed in his innocence."

Mr Al-Megrahi's appeal was ordered by the Scottish Criminal Cases Review Commission in 2007, after a four-year investigation came to the conclusion that a "miscarriage of justice" may have occurred.

Dr Mallia would not enter into the merits of the case because it is still sub judice. But he said his personal view was that the verdict was flawed.

"Having examined the judgment of the court at Camp Zeist and being aware of the salient evidence produced in the case by the prosecution, I feel that the evidence could never have amounted to guilt of the accusation according to law," Dr Mallia said.

He said the prosecution lacked reliable evidence that could prove guilt beyond reasonable doubt: "Although there were a lot of issues which could give rise to suspicion, anything argued on the basis of suspicion may lead to conjecture but not proof. Even if considering circumstantial evidence, we know that such evidence can mislead and, in order to rely upon it, it has to lead to one direction."

Some argue that at the early investigation stage Malta was perhaps too compliant.

"The government gave access to the Scottish and American investigators to interview people and take any action deemed necessary. Some have argued that things may have been done differently with the Malta police having more direct control of the investigation".

A former Scottish judge regarded as the architect of the Lockerbie trial, Robert Black, also told The Sunday Times last week that there was never any evidence that the bomb left from Malta.

On his blog this week, Prof. Black contested arguments made by the prosecution at the Court of Criminal Appeal in recent days that Mr Al-Megrahi's trip to Malta with a false passport the day the bomb was planted, and his departure the day after, was a link to the commission of the offence.

"As regards the coded - not false - passport, it is of relevance only if the bomb actually started from Malta, which is a finding the defence have strongly challenged in the appeal," Prof. Black said.

The hearing continues despite rumours that the 57-year-old former Libyan intelligence officer may choose to drop his appeal and go home because of a recent prisoner transfer agreement between the UK and Libya.

Mr Al-Megrahi is suffering from prostate cancer and can choose to die at home. But dropping his appeal will leave him a condemned man and mean that Malta will remain implicated in one of the worst terrorist acts in aviation history.

According to Dr Koechler, it is "absolutely essential" that the appeal goes ahead: "The Scottish authorities can reconcile the imperatives of the rule of law and of humanity and grant the appellant compassionate release while the appeal goes on... In a situation where there are serious doubts whether he is guilty as charged, and where the public is confronted with an increasing number of shocking revelations about the mishandling of the case by the judiciary, tampering with evidence, and so on, it is appropriate to make such a step."

Dr Koechler believes the British Parliament should mandate an independent public investigation into the Lockerbie case.

"The international public, including the people of Malta, deserve to know the truth - the full and uncensored truth - about the chain of events that led to the explosion of the American jetliner over Lockerbie."