[This is the headline over my column in the July issue of the Scottish lawyers' magazine The Firm. It reads as follows:]
It took three years for the SCCRC to conclude that Abdelbaset Ali Mohmad al- Megrahi may be the victim of a miscarriage of justice, and a further two years will have passed before his appeal is heard, by which time he may have died. Professor Robert Black QC calls on the Scottish authorities to show some courage before it is too late.
Abdelbaset al-Megrahi should never have been convicted for the Lockerbie atrocity. His conviction, on the evidence led at the trial, was nothing short of astonishing. It constitutes the worst miscarriage of justice perpetrated by a Scottish criminal court since the conviction of Oscar Slater in 1909.
It should never be forgotten that one crucial ground on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice in Megrahi’s case, was its view that no reasonable court could have reached the conclusion that the trial court did, on a matter absolutely central to its reasons for convicting.
The delay in bringing Megrahi’s current appeal to the hearing stage has been scandalous. Had a modicum of urgency been shown, it is entirely conceivable that the appeal could have been over before now and the appellant back with his wife and children in his own country, a free man. The SCCRC had his case under consideration for more than three years before referring it back to the High Court. But the issue of the trial court’s unreasonable findings is a very simple and straightforward one and required virtually no investigation other that a perusal of the relevant portions of the transcript of evidence. If the SCCRC decided early in its deliberations that the case was going to have to be referred back on this ground – and it is difficult to believe that it did not – then delaying taking that step for three years is hard to justify.
Then there is the delay that has occurred after the SCCRC referred the case to the High Court in June 2007, attributable in large part to the Fabian tactics of the Crown and the spurious public interest immunity claims of the UK Foreign Office. Two whole years have passed since the SCCRC reference. Eighteen months have passed since the appellant’s full written grounds of appeal were lodged with the court. And it was only at the end of April 2009 that the first tranche of the appeal was heard. On the leisurely timetable that the appeal court has set, it would require a minor miracle for the proceedings to be concluded by the twenty-first anniversary of the disaster in December 2009.
What makes all of this worse is that the appellant was diagnosed in October 2008 with terminal, late-stage prostate cancer. His condition has recently deteriorated to such an extent that he was unable to attend court for the first tranche of the appeal or, indeed, comfortably to follow the proceedings over the TV link that had been set up.
The recently lodged prisoner transfer application would enable him to return to Libya to spend his remaining weeks with his wife, children, aged mother and siblings, which is – understandably – now his overriding priority. But, for prisoner transfer to be granted by the Scottish Government, Megrahi would have to abandon his appeal. This, clearly, would bring joy to the hearts of the Crown Office and the Scottish Government Justice Department. The manifold concerns over the Lockerbie conviction could be gleefully swept under the carpet and the pretence maintained that the system had worked perfectly and a guilty man had been justly convicted.
However, there is another course of action open to the Scottish Government, if Ministers have the strength of will and character to withstand the pressure of civil servants assiduously punting the prisoner transfer option. That course of action is compassionate release. This would enable Megrahi to be freed on licence and return to Libya. His appeal would run to its natural conclusion. If he died before the appeal court reached its decision, the appeal could be transferred to his executor or any person having a legitimate interest.
The Scottish public interest demands nothing less than that the concerns over Megrahi’s conviction be ventilated fully in court. Compassionate release provides the only mechanism whereby this can be achieved alongside the humanitarian goal of allowing him to die at home. Have Scottish Ministers the wisdom and the courage to embrace it?
Monday, 27 July 2009
Lockerbie -- bomber or victim?
The only man convicted of Britain’s worst ever terrorist outrage has asked to be released from prison on compassionate grounds. Abdelbaset al-Megrahi, a Libyan intelligence officer, was jailed for 27 years for the Lockerbie bombing in 2001. His co-defendant was acquitted.
Al-Megrahi, who is suffering from terminal cancer, was alleged to have got the bomb onto PanAm Flight 103 in December 1988 via a connecting flight from Malta, though many people, including families of some of the 270 victims of the attack, are not convinced of his guilt, and believe he was the fall guy in a sordid stitch-up designed to end Libya’s diplomatic isolation.
In particular, sceptics have pointed to the fact that it was never mentioned at his trial that there had been a break-in at a Heathrow baggage store just 18 hours before flight 103 departed, and that someone could have smuggled a bag on board by getting it into this area.
Al-Megrahi is appealing against the verdict, and in June 2007, the Scottish Criminal Cases Review Commission said it feared he may have been the victim of a miscarriage of justice. If his conviction were to be overturned it would, of course, raise some very inconvenient questions.
[This is the text of a post of today's date on John Withington's Disaster History blog.]
Al-Megrahi, who is suffering from terminal cancer, was alleged to have got the bomb onto PanAm Flight 103 in December 1988 via a connecting flight from Malta, though many people, including families of some of the 270 victims of the attack, are not convinced of his guilt, and believe he was the fall guy in a sordid stitch-up designed to end Libya’s diplomatic isolation.
In particular, sceptics have pointed to the fact that it was never mentioned at his trial that there had been a break-in at a Heathrow baggage store just 18 hours before flight 103 departed, and that someone could have smuggled a bag on board by getting it into this area.
Al-Megrahi is appealing against the verdict, and in June 2007, the Scottish Criminal Cases Review Commission said it feared he may have been the victim of a miscarriage of justice. If his conviction were to be overturned it would, of course, raise some very inconvenient questions.
[This is the text of a post of today's date on John Withington's Disaster History blog.]
Sunday, 26 July 2009
Police consider prosecuting Crown Agent McFadyen
Lothian and Borders police have confirmed that they are considering whether to proceed to bring charges against Crown Agent Norman [McFadyen], more than a week after receiving information from MSP Christine Grahame in respect of his handling of the Lockerbie investigation.
[McFadyen] is presently on leave and cannot be contacted.
Lothian and Borders police said they were considering the content of Ms Grahame's letter, and would not rule out bringing charges against [McFadyen]. A police press officer said that they could not give any indication as to what will happen in the future.
The contents of Ms Grahame's letter are not known. However on 17 July the Crown Office took the unprecedented step of issuing a statement in defence of Mr [McFadyen], saying he was "a man of the utmost integrity who is held in the highest regard by the Law Officers.”
The Crown statement added that Ms Grahame's letter contained “defamatory and entirely unfounded allegations of the most serious kind,” although to date The Firm understands that no action for defamation is proceeding.
[The above is the text of a news item posted yesterday on the website of the Scottish lawyers' magazine The Firm.
For an update from the magazine's website, click here.]
[McFadyen] is presently on leave and cannot be contacted.
Lothian and Borders police said they were considering the content of Ms Grahame's letter, and would not rule out bringing charges against [McFadyen]. A police press officer said that they could not give any indication as to what will happen in the future.
The contents of Ms Grahame's letter are not known. However on 17 July the Crown Office took the unprecedented step of issuing a statement in defence of Mr [McFadyen], saying he was "a man of the utmost integrity who is held in the highest regard by the Law Officers.”
The Crown statement added that Ms Grahame's letter contained “defamatory and entirely unfounded allegations of the most serious kind,” although to date The Firm understands that no action for defamation is proceeding.
[The above is the text of a news item posted yesterday on the website of the Scottish lawyers' magazine The Firm.
For an update from the magazine's website, click here.]
How many judges thought the evidence warranted conviction?
Frank Duggan, President of Victims of Pan Am 103 Inc, one of the US relatives' organisations, has recently been sending e-mails contending that eight Scottish judges regarded the evidence led at the Zeist trial as warranting the conviction of Abdelbaset Megrahi, namely the three judges at the original trial and the five judges at the first appeal. This is, of course, wholly false. As the appeal judges state in paragraph 369 of their Opinion:
“When opening the case for the appellant before this court Mr Taylor [senior counsel for Megrahi] stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act [verdict unreasonable on the evidence]. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”
The true position, as I have written elsewhere, is this:
"As far as the outcome of the appeal is concerned, some commentators have confidently opined that, in dismissing Megrahi’s appeal, the Appeal Court endorsed the findings of the trial court. This is not so. The Appeal Court repeatedly stresses that it is not its function to approve or disapprove of the trial court’s findings-in-fact, given that it was not contended on behalf of the appellant that there was insufficient evidence to warrant them or that no reasonable court could have made them. These findings-in-fact accordingly continue, as before the appeal, to have the authority only of the court which, and the three judges who, made them."
“When opening the case for the appellant before this court Mr Taylor [senior counsel for Megrahi] stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act [verdict unreasonable on the evidence]. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”
The true position, as I have written elsewhere, is this:
"As far as the outcome of the appeal is concerned, some commentators have confidently opined that, in dismissing Megrahi’s appeal, the Appeal Court endorsed the findings of the trial court. This is not so. The Appeal Court repeatedly stresses that it is not its function to approve or disapprove of the trial court’s findings-in-fact, given that it was not contended on behalf of the appellant that there was insufficient evidence to warrant them or that no reasonable court could have made them. These findings-in-fact accordingly continue, as before the appeal, to have the authority only of the court which, and the three judges who, made them."
Saturday, 25 July 2009
Megrahi requests release from jail on compassionate grounds
[This is the headline over Lucy Adams's coverage in The Herald of the story that was broken yesterday on this blog. Her article can be read here. The following are extracts:]
The man convicted of the Lockerbie bombing has applied to Scottish ministers for release on compassionate grounds, a move which if granted would allow him to return to Libya without dropping his appeal.
Ministers received the application yesterday from Abdelbaset Ali Mohmed al Megrahi, who was diagnosed with terminal prostate cancer last year.
As with the case of prisoner transfer, the decision rests with Kenny MacAskill, the Justice Secretary. Unlike prisoner transfer, compassionate release does not require the prisoner to abandon any ongoing legal proceedings.
The Justice Secretary is thought to have released three terminally ill patients on compassionate grounds last year. Traditionally, only applications from those with three months to live are granted.
In May the Libyan government applied for prisoner transfer of Megrahi, the 57-year-old serving 27 years in Greenock prison for the bombing which killed 270 people in December 1988. (...)
Mr MacAskill is expected to make a decision on the transfer in the first week in August, but there has been some confusion about how the prisoner transfer agreement works. One legal expert said that ministers must give Megrahi a decision "in principle" before he drops proceedings, but officials say that is not the case.
It is thought that some of the US relatives of the victims of the tragedy would push for a judicial review if Mr MacAskill agrees to Megrahi's transfer back to Libya. Many of them are angry that the transfer is even being considered.
The families have taken legal advice in both London and Scotland. Judicial review could significantly delay Megrahi's return to Libya, but compassionate release is not subject to judicial review.
Professor Robert Black, one of the architects of Megrahi's trial in the Netherlands, said: "Compassionate release seems to achieve the humanitarian objective of allowing Megrahi to die in his homeland among his extended family, along with the public interest and criminal justice objectives of allowing a court to rule upon the validity of an appeal in the case of a conviction that has been increasingly called into question."
[The Scotsman also covers the story. Its article reads in part:]
An e-mail sent yesterday from the Crown Office to relatives of those who died said: "It has been confirmed that the Scottish Government has today received an application for compassionate release on behalf of Megrahi.
"We understand that this application will now be considered by the Scottish Government in tandem with the previous application for Prisoner Transfer."
A spokeswoman for the Scottish Government said: "We can confirm an application for compassionate release has been made by Mr al-Megrahi, and forwarded by the Libyan government to the Scottish ministers.
"Scottish ministers will not comment on the content of the application and will now seek advice on the application."
[The BBC News website has now picked up the story, which can be read here.]
The man convicted of the Lockerbie bombing has applied to Scottish ministers for release on compassionate grounds, a move which if granted would allow him to return to Libya without dropping his appeal.
Ministers received the application yesterday from Abdelbaset Ali Mohmed al Megrahi, who was diagnosed with terminal prostate cancer last year.
As with the case of prisoner transfer, the decision rests with Kenny MacAskill, the Justice Secretary. Unlike prisoner transfer, compassionate release does not require the prisoner to abandon any ongoing legal proceedings.
The Justice Secretary is thought to have released three terminally ill patients on compassionate grounds last year. Traditionally, only applications from those with three months to live are granted.
In May the Libyan government applied for prisoner transfer of Megrahi, the 57-year-old serving 27 years in Greenock prison for the bombing which killed 270 people in December 1988. (...)
Mr MacAskill is expected to make a decision on the transfer in the first week in August, but there has been some confusion about how the prisoner transfer agreement works. One legal expert said that ministers must give Megrahi a decision "in principle" before he drops proceedings, but officials say that is not the case.
It is thought that some of the US relatives of the victims of the tragedy would push for a judicial review if Mr MacAskill agrees to Megrahi's transfer back to Libya. Many of them are angry that the transfer is even being considered.
The families have taken legal advice in both London and Scotland. Judicial review could significantly delay Megrahi's return to Libya, but compassionate release is not subject to judicial review.
Professor Robert Black, one of the architects of Megrahi's trial in the Netherlands, said: "Compassionate release seems to achieve the humanitarian objective of allowing Megrahi to die in his homeland among his extended family, along with the public interest and criminal justice objectives of allowing a court to rule upon the validity of an appeal in the case of a conviction that has been increasingly called into question."
[The Scotsman also covers the story. Its article reads in part:]
An e-mail sent yesterday from the Crown Office to relatives of those who died said: "It has been confirmed that the Scottish Government has today received an application for compassionate release on behalf of Megrahi.
"We understand that this application will now be considered by the Scottish Government in tandem with the previous application for Prisoner Transfer."
A spokeswoman for the Scottish Government said: "We can confirm an application for compassionate release has been made by Mr al-Megrahi, and forwarded by the Libyan government to the Scottish ministers.
"Scottish ministers will not comment on the content of the application and will now seek advice on the application."
[The BBC News website has now picked up the story, which can be read here.]
Friday, 24 July 2009
Application for compassionate release
I understand from an impeccable source that an application on behalf of Abdelbaset Megrahi for compassionate release has this morning been received by the Scottish Government Justice Department. As with the case of prisoner transfer, the decision rests with the Cabinet Secretary for Justice, Kenny MacAskill. Unlike prisoner transfer, compassionate release does not require the prisoner to abandon any ongoing legal proceedings.
Confirmation came in the form of an e-mail sent this afternoon by the Crown Office to relatives of those killed on Pan Am 103.
Confirmation came in the form of an e-mail sent this afternoon by the Crown Office to relatives of those killed on Pan Am 103.
Thursday, 23 July 2009
Crown defamation decision on hold
The Crown Office will not confirm if any action for defamation is to be taken in respect of claims made about Crown agent Norman MacFadyen, despite issuing an unprecedented statement which purports that “defamatory and entirely unfounded allegations of the most serious kind” had been made against him.
The Crown issued the statement on 17 July, but did not state what allegations they were referring to. They did however state that they had been made by MSP Christine Grahame in relation her inquires into the Lockerbie proceedings.
The Crown Office had been asked to clarify whether an action for defamation would follow from Mr McFadyen, given the unprecedented nature of the statement they had issued which not only robustly defended Mr MacFadyen, but suggested Ms Grahame, a former solicitor, had failed to understand the judicial process she was referring to.
“Norman McFadyen is a man of the utmost integrity who is held in the highest regard by the Law Officers,” the Crown statement said.
“Not only is the allegation false in itself but Mrs Grahame appears to have misunderstood the process because the documents which she has referred to were not part of and had absolutely nothing to do with it."
The Crown Office as an organisation is not permitted to raise an action for defamation following the decision in the 1984 Derbyshire County Council case. McFadyen himself is presently on leave. The Crown Office has advised that any decision on whether to raise such an action would be a private matter for him.
[The above is the text of a news item posted today on the website of the Scottish lawyers' magazine The Firm.]
The Crown issued the statement on 17 July, but did not state what allegations they were referring to. They did however state that they had been made by MSP Christine Grahame in relation her inquires into the Lockerbie proceedings.
The Crown Office had been asked to clarify whether an action for defamation would follow from Mr McFadyen, given the unprecedented nature of the statement they had issued which not only robustly defended Mr MacFadyen, but suggested Ms Grahame, a former solicitor, had failed to understand the judicial process she was referring to.
“Norman McFadyen is a man of the utmost integrity who is held in the highest regard by the Law Officers,” the Crown statement said.
“Not only is the allegation false in itself but Mrs Grahame appears to have misunderstood the process because the documents which she has referred to were not part of and had absolutely nothing to do with it."
The Crown Office as an organisation is not permitted to raise an action for defamation following the decision in the 1984 Derbyshire County Council case. McFadyen himself is presently on leave. The Crown Office has advised that any decision on whether to raise such an action would be a private matter for him.
[The above is the text of a news item posted today on the website of the Scottish lawyers' magazine The Firm.]
Harris book sheds new light on Lockerbie bombing case
[This is the heading over a press release intimating the publication of a new book by Paul Harris. The release reads as follows:]
A book, written by former journalist and intelligence analyst Paul Harris, produces new evidence that the Libyan Abdel Baset al-Megrahi was wrongly convicted of the Lockerbie bombing. This information comes as the Scottish Justice Minister, Kenny MacAskill is poised to intervene in the case.
The author of More Thrills than Skills: Adventures in Journalism, War & Terrorism says that the evidence of the key witness in the 2001 Camp Zeist trial must be regarded as “deeply suspect”. Swiss businessman Edwin Bollier testified that a piece of electronic circuit board found later at the crash site near Lockerbie was made by his company and supplied to the Libyans. Harris reveals that he investigated Bollier for MI6, the British intelligence agency, in the early 1970s, long before the Lockerbie bombing.
Harris regards the circuit board evidence as unreliable. Far more convincing, he says, is other evidence found at the crash site indicating that a Toshiba cassette recorder, planted by the Damascus-based terror group PFLP-GC, was responsible for the explosion aboard Pan Am 103.
Harris’s personal experiences in relation to the case are recounted in More Thrills than Skills, pages 39-47 (published by Kennedy & Boyd, Glasgow/amazon.co.uk).
Bio note: Paul Harris worked as Specialist Contributor Terrorism & Counter Insurgency for Janes Intelligence Review 1993-2003. He was also a contributing foreign correspondent for Sky News, The Scotsman and Scotland on Sunday, and Colombo correspondent for The Daily Telegraph (2001-2).
The book launch takes place at 10 London Street, Edinburgh, on July 22 at 1830 hours ...
[A short press release cannot be expected to descend into minutiae; but the sentence about Ed Bollier's evidence is hardly an accurate reflection of his testimony at Zeist.]
A book, written by former journalist and intelligence analyst Paul Harris, produces new evidence that the Libyan Abdel Baset al-Megrahi was wrongly convicted of the Lockerbie bombing. This information comes as the Scottish Justice Minister, Kenny MacAskill is poised to intervene in the case.
The author of More Thrills than Skills: Adventures in Journalism, War & Terrorism says that the evidence of the key witness in the 2001 Camp Zeist trial must be regarded as “deeply suspect”. Swiss businessman Edwin Bollier testified that a piece of electronic circuit board found later at the crash site near Lockerbie was made by his company and supplied to the Libyans. Harris reveals that he investigated Bollier for MI6, the British intelligence agency, in the early 1970s, long before the Lockerbie bombing.
Harris regards the circuit board evidence as unreliable. Far more convincing, he says, is other evidence found at the crash site indicating that a Toshiba cassette recorder, planted by the Damascus-based terror group PFLP-GC, was responsible for the explosion aboard Pan Am 103.
Harris’s personal experiences in relation to the case are recounted in More Thrills than Skills, pages 39-47 (published by Kennedy & Boyd, Glasgow/amazon.co.uk).
Bio note: Paul Harris worked as Specialist Contributor Terrorism & Counter Insurgency for Janes Intelligence Review 1993-2003. He was also a contributing foreign correspondent for Sky News, The Scotsman and Scotland on Sunday, and Colombo correspondent for The Daily Telegraph (2001-2).
The book launch takes place at 10 London Street, Edinburgh, on July 22 at 1830 hours ...
[A short press release cannot be expected to descend into minutiae; but the sentence about Ed Bollier's evidence is hardly an accurate reflection of his testimony at Zeist.]
Wednesday, 22 July 2009
Libyan prodigal
There must still be suspicions over Gaddafi’s past involvement with Lockerbie. But it is right to deal with those who renounce terrorism, however distasteful
Nothing can heal the wound left by a child, a parent or a loved one lost to terrorism. And for the relatives of the victims murdered aboard Pan Am flight 103 over Lockerbie in 1988, the past 21 years have been especially hard. For a long time they had no idea who had carried out the atrocity. When finally the suspects were named, they suffered the frustration of Libya’s refusal to extradite the men for trial. And even after the conviction in The Hague of Abdul Baset Ali al-Megrahi, there are many who believe that the 270 victims were not killed by one man acting alone: that a conspiracy involved many others, not least the Libyan leader, Colonel Muammar Gaddafi.
To see Colonel Gaddafi received with full honours at the United Nations in September will therefore be particularly galling. Lockerbie families have voiced shock and outrage at the news that this former supporter of global terrorism will address the General Assembly on the opening day, immediately after President Obama. To them, he is still a murderer, the man who ordered the outrage; his visit has left the president of the victims’ families group “speechless”.
[From a leader in The Times of 23 July 2009.
The leader writer might also have mentioned that there are many who believe that the 270 victims were not killed by Abdelbaset Megrahi at all; and that his conviction is currently under appeal, on a reference from the Scottish Criminal Cases Review Commission. But expecting accuracy and even-handedness on the part of The Times over Lockerbie is a forlorn hope.
The news story that seemingly prompted the leader can be read here. It is interesting that the newspaper reports comments only from American relatives of Pan Am 103 victims, not from UK relatives, at least some of whom have very different views.]
Nothing can heal the wound left by a child, a parent or a loved one lost to terrorism. And for the relatives of the victims murdered aboard Pan Am flight 103 over Lockerbie in 1988, the past 21 years have been especially hard. For a long time they had no idea who had carried out the atrocity. When finally the suspects were named, they suffered the frustration of Libya’s refusal to extradite the men for trial. And even after the conviction in The Hague of Abdul Baset Ali al-Megrahi, there are many who believe that the 270 victims were not killed by one man acting alone: that a conspiracy involved many others, not least the Libyan leader, Colonel Muammar Gaddafi.
To see Colonel Gaddafi received with full honours at the United Nations in September will therefore be particularly galling. Lockerbie families have voiced shock and outrage at the news that this former supporter of global terrorism will address the General Assembly on the opening day, immediately after President Obama. To them, he is still a murderer, the man who ordered the outrage; his visit has left the president of the victims’ families group “speechless”.
[From a leader in The Times of 23 July 2009.
The leader writer might also have mentioned that there are many who believe that the 270 victims were not killed by Abdelbaset Megrahi at all; and that his conviction is currently under appeal, on a reference from the Scottish Criminal Cases Review Commission. But expecting accuracy and even-handedness on the part of The Times over Lockerbie is a forlorn hope.
The news story that seemingly prompted the leader can be read here. It is interesting that the newspaper reports comments only from American relatives of Pan Am 103 victims, not from UK relatives, at least some of whom have very different views.]
More from a former student
I watched a documentary on the Lockerbie bombing this evening on you tube
http://www.youtube.com/watch?v=mnEmsgBzLxw
and found out some more information about the case.
The Libyan man convicted, Abdelbaset Megrahi, is appealing again at the moment, and an MSP, Christine Grahame, is being threatened with legal action for questioning the actions of the Advocate General in securing his imprisonment. This is still a hugely contentious issue even twenty years on from the event, with many in Scotland, including Professor Robert Black, the legal expert who set up the special trial in Holland, feeling that Megrahi's conviction is unsound.
The documentary did not however question his guilt, pointing to CIA evidence which linked a tiny scrap of a bomb timer's motherboard being the same model as that found on some Libyan terrorists caught trying to travel with it through customs somewhere in Africa, years earlier. This, along with the fact that Megrahi had once had contact with the Swiss firm which made the devices, was held against him, seemingly justifiably. In addition was the fact that a Maltese shopkeeper, in whose shop the clothes in the suitacase which contained the bomb wer bought, recalled having sold them to 'a man with a Libyan accent'. It was not however mentioned that this shopkeeper, Tony Gauci, failed to identify Megrahi numerous times before finally doing so. Professor Black, in his scepticism about the conviction, focuses on this as the key weakness in the prosecution case. Absence of any kind of id would make the evidence against Megrahi purely circumstantial: he was stationed in Malta, where the clothes were bought, and worked as an intelligence officer for the country under suspicion. THis does not however mean that he is the man who carried out that horrendous deed of packing the case and putting it on the plane in Frankfurt, bound for New York via Heathrow, on December 21st 1988.
The subsequent compeensation payout of 8 million dollars per victim by Libya to the families seems to be an acknowledgement of guilt. But whose? Does Libya and Colonel Gadaffi implicitly accept responsibility for Megrahi's actions? Or is it simply a grace payment designed to smooth the way for a removal of sanctions. What would happen if, unlikely as it may be, Megrahi wins his appeal? We would be left with the farcical situation of Libya having paid out for a crime none of its agents were ever found responsible for in a court of law. The convenient response would be to say 'end of story': for pragmatic purposes, a country cannot be put on trial, and compensation should be accepted instead. But Saddam Hussein might argue, it's a pity the same rule didn't apply to him.
What if, on the other hand, Libya was not responsible for Lockerbie, but it suited certain international interests to frame them, or rather Megrahi, for the crime? And here we come back to the evidence: the CIA discovery of the match with the timer device previously found in Africa. Can anyone say that this evidence was genuine? Given the CIA's past record, it's hardly implausible that they produced evidence to suit a story they wanted to create. And what about the fact that, 6 months prior to Lockerbie, the US Navy had accidentally shot down an Iranian passenger jet, killing even more people than died in Pan Am 103. For this, Iran declared that it would get revenge, so isn't it strange that Libya should be the ones to down the jet?
The families, the vast majority anyway, seem opposed to the appeal, or the idea that Megrahi should be allowed back to Libya becuase he is dying of cancer. They want to see him die in a Scottish jail, as the man who perpetrated a horrific mass murder, one of the most callous acts it is possible to imagine. But, it seems to me, it would be to the discredit of the Scottish legal system to keep him there, as we cannot prove beyond reasonable doubt, that he was the man responsible for this atrocity. Surely, if ever there was a need for sanctions threat by the US, it is against Gadaffi again, if he doesn not make public the documents which must still exist relating to Libyan security service operations in 1988. If he cannot produce these documents, serious doubts must arise as to whether his country was responsible at all, and Megrahi would have to go free, at least for the last few years before he dies of cancer.
[The above is a post dated 21 July 2009 on the tinoscandle blog. For an earlier related post from the same blog, click here.]
http://www.youtube.com/watch?v=mnEmsgBzLxw
and found out some more information about the case.
The Libyan man convicted, Abdelbaset Megrahi, is appealing again at the moment, and an MSP, Christine Grahame, is being threatened with legal action for questioning the actions of the Advocate General in securing his imprisonment. This is still a hugely contentious issue even twenty years on from the event, with many in Scotland, including Professor Robert Black, the legal expert who set up the special trial in Holland, feeling that Megrahi's conviction is unsound.
The documentary did not however question his guilt, pointing to CIA evidence which linked a tiny scrap of a bomb timer's motherboard being the same model as that found on some Libyan terrorists caught trying to travel with it through customs somewhere in Africa, years earlier. This, along with the fact that Megrahi had once had contact with the Swiss firm which made the devices, was held against him, seemingly justifiably. In addition was the fact that a Maltese shopkeeper, in whose shop the clothes in the suitacase which contained the bomb wer bought, recalled having sold them to 'a man with a Libyan accent'. It was not however mentioned that this shopkeeper, Tony Gauci, failed to identify Megrahi numerous times before finally doing so. Professor Black, in his scepticism about the conviction, focuses on this as the key weakness in the prosecution case. Absence of any kind of id would make the evidence against Megrahi purely circumstantial: he was stationed in Malta, where the clothes were bought, and worked as an intelligence officer for the country under suspicion. THis does not however mean that he is the man who carried out that horrendous deed of packing the case and putting it on the plane in Frankfurt, bound for New York via Heathrow, on December 21st 1988.
The subsequent compeensation payout of 8 million dollars per victim by Libya to the families seems to be an acknowledgement of guilt. But whose? Does Libya and Colonel Gadaffi implicitly accept responsibility for Megrahi's actions? Or is it simply a grace payment designed to smooth the way for a removal of sanctions. What would happen if, unlikely as it may be, Megrahi wins his appeal? We would be left with the farcical situation of Libya having paid out for a crime none of its agents were ever found responsible for in a court of law. The convenient response would be to say 'end of story': for pragmatic purposes, a country cannot be put on trial, and compensation should be accepted instead. But Saddam Hussein might argue, it's a pity the same rule didn't apply to him.
What if, on the other hand, Libya was not responsible for Lockerbie, but it suited certain international interests to frame them, or rather Megrahi, for the crime? And here we come back to the evidence: the CIA discovery of the match with the timer device previously found in Africa. Can anyone say that this evidence was genuine? Given the CIA's past record, it's hardly implausible that they produced evidence to suit a story they wanted to create. And what about the fact that, 6 months prior to Lockerbie, the US Navy had accidentally shot down an Iranian passenger jet, killing even more people than died in Pan Am 103. For this, Iran declared that it would get revenge, so isn't it strange that Libya should be the ones to down the jet?
The families, the vast majority anyway, seem opposed to the appeal, or the idea that Megrahi should be allowed back to Libya becuase he is dying of cancer. They want to see him die in a Scottish jail, as the man who perpetrated a horrific mass murder, one of the most callous acts it is possible to imagine. But, it seems to me, it would be to the discredit of the Scottish legal system to keep him there, as we cannot prove beyond reasonable doubt, that he was the man responsible for this atrocity. Surely, if ever there was a need for sanctions threat by the US, it is against Gadaffi again, if he doesn not make public the documents which must still exist relating to Libyan security service operations in 1988. If he cannot produce these documents, serious doubts must arise as to whether his country was responsible at all, and Megrahi would have to go free, at least for the last few years before he dies of cancer.
[The above is a post dated 21 July 2009 on the tinoscandle blog. For an earlier related post from the same blog, click here.]
Tuesday, 21 July 2009
MSP asks police to investigate Crown Agent
[The Scottish edition of the Sunday Express ran the following story by Meg Milne on 19 July. It does not seem to feature on the newspaper's website. A number of other Scottish Sunday newspapers apparently decided to spike the story because of the Crown Office statement mentioned below.]
Police will decide this week if one of Scotland's most senior prosecutors is to be investigated over allegations about the Lockerbie trial.
The move comes after SNP backbencher Christine Grahame raised serious concerns in a letter to Lothian and Borders Chief Constable David Strang.
Ms Grahame wants to investigate Crown Agent Norman McFadyen, who led the 2000 prosecution of Abdelbaset Ali Mohmed Al Megrahi, who is appealing his conviction.
Ms Grahame, who said she has concerns about Mr McFadyen's role, said y esterday: "After considerable deliberation I have decided to report this matter to Lothian and Borders Police.
"It is becoming increasingly apparent that the case against Mr Megrahi, w ho is terminally ill, does not, in my view, stand up to thorough examination."
However, in an unprecedented step, the Crown Office issued a statement rebuking Ms Grahame for making "defamatory and entirely unfounded allegations".
A spokesman said: "We have been made aware of serious allegations made by Christine Grahame.
"These are defamatory and entirely unfounded allegations of the most serious kind. Norman McFadyen is a man of utmost integrity who is held in the highest regard by the Law Officers."
A Lothian and Borders Police spokeswoman said:
"If there is a statement from the Chief Constable, it will be on Monday".
Details of the allegations made by Ms Grahame - which have been seen by the Scottish Sunday Express - cannot be repeated for legal reasons.
However, the South of Scotland MSP also claims to have copies of secret US intelligence documents that show Iran may have been responsible for the terrorist outrage.
One document, dated September 24, 1989, states:
"The bombing of the Pan Am flight was conceived, authorised and financed by Ali-Akbar [Montashemi], the former Iranian Minister of Interior.
"The execution of the operation was contracted to Ahmad Jabril, Popular Front for the Liberation of Palestine General Command leader, for a sum of 1,000,000 US dollars.
"One hundred thousand dollars of this money was given to Jabril up front in Damascus, by the Iranian Ambassador to Sy (Syria) Muhammad Hussan for initial expenses.
"The remainder of the money was to be paid after successful completion of the mission."
As the Sunday Express first revealed in 2004, it also states that analysis of materials confiscated in a raid of a PFLP-GC cell in Germany in October 1988 provided strong circumstantial evidence linking the cell to the bombing and that Iran had reportedly made a large payment to the PFLP-GC following the bombing.
Justice Secretary Kenny MacAskill is currently considering a prisoner transfer request from Libya for Megrahi, 57, who is terminally ill with prostrate cancer in Greenock Prison.
Yesterday, it emerged that some of the families of the American victims are planning to block his repatriation, if it is approved, by applying for a judicial review of the decision.
Ms Grahame claims that such a move would ensure that Megrahi dies in prison and she repeated her calls for the former Libyan agent to be released on compassionate grounds.
Police will decide this week if one of Scotland's most senior prosecutors is to be investigated over allegations about the Lockerbie trial.
The move comes after SNP backbencher Christine Grahame raised serious concerns in a letter to Lothian and Borders Chief Constable David Strang.
Ms Grahame wants to investigate Crown Agent Norman McFadyen, who led the 2000 prosecution of Abdelbaset Ali Mohmed Al Megrahi, who is appealing his conviction.
Ms Grahame, who said she has concerns about Mr McFadyen's role, said y esterday: "After considerable deliberation I have decided to report this matter to Lothian and Borders Police.
"It is becoming increasingly apparent that the case against Mr Megrahi, w ho is terminally ill, does not, in my view, stand up to thorough examination."
However, in an unprecedented step, the Crown Office issued a statement rebuking Ms Grahame for making "defamatory and entirely unfounded allegations".
A spokesman said: "We have been made aware of serious allegations made by Christine Grahame.
"These are defamatory and entirely unfounded allegations of the most serious kind. Norman McFadyen is a man of utmost integrity who is held in the highest regard by the Law Officers."
A Lothian and Borders Police spokeswoman said:
"If there is a statement from the Chief Constable, it will be on Monday".
Details of the allegations made by Ms Grahame - which have been seen by the Scottish Sunday Express - cannot be repeated for legal reasons.
However, the South of Scotland MSP also claims to have copies of secret US intelligence documents that show Iran may have been responsible for the terrorist outrage.
One document, dated September 24, 1989, states:
"The bombing of the Pan Am flight was conceived, authorised and financed by Ali-Akbar [Montashemi], the former Iranian Minister of Interior.
"The execution of the operation was contracted to Ahmad Jabril, Popular Front for the Liberation of Palestine General Command leader, for a sum of 1,000,000 US dollars.
"One hundred thousand dollars of this money was given to Jabril up front in Damascus, by the Iranian Ambassador to Sy (Syria) Muhammad Hussan for initial expenses.
"The remainder of the money was to be paid after successful completion of the mission."
As the Sunday Express first revealed in 2004, it also states that analysis of materials confiscated in a raid of a PFLP-GC cell in Germany in October 1988 provided strong circumstantial evidence linking the cell to the bombing and that Iran had reportedly made a large payment to the PFLP-GC following the bombing.
Justice Secretary Kenny MacAskill is currently considering a prisoner transfer request from Libya for Megrahi, 57, who is terminally ill with prostrate cancer in Greenock Prison.
Yesterday, it emerged that some of the families of the American victims are planning to block his repatriation, if it is approved, by applying for a judicial review of the decision.
Ms Grahame claims that such a move would ensure that Megrahi dies in prison and she repeated her calls for the former Libyan agent to be released on compassionate grounds.
Monday, 20 July 2009
Editor of The Firm asks for clarification
[What follows is an e-mail sent today by Steven Raeburn, the editor of the Scottish lawyers' magazine The Firm, to various officials of the Scottish Government and the Crown Office.]
The Scottish Government advise that the news release below was sent by Crown Office.
As an editor, I am concerned at the covert nature of this, which does appear to constitute something of an off record whispering campaign, or a conscious effort to traduce Ms Grahame, who is an elected member of Parliament. Whilst not every editor may be familiar with the specific point Ms Grahame has made, which you claim is defamatory, I can advise you that the same point was made to me directly by Lhamin Khalifa Fhimah's former defence team in 2004, in terms far from less circumspect and a good deal more critical than the published claims of Ms Grahame. If her claims are true, which we must accept is a possibility, they cannot be defamatory, and accordingly Mr McFadyen may potentially have some legitimate questions to answer. The full picture may not prove to be as definitive as the release presently claims.
Hence, it is appropriate that we tread carefully. Therefore, would you be able to advise:
- Is this release attributable, and if so, to whom?
- Is this for publication?
- If the comments made my Ms Grahame are defamatory as claimed, is an action for defamation being pursued?
- If the "defamatory and entirely unfounded allegations of the most serious kind" have been published, is any action being taken against the publication(s) in question?
- And do you have any additional statement to make in respect of this?
I do await hearing from you.
---------
From: THE SCOTTISH GOVERNMENT
NOTE TO EDITORS
We have been made aware of serious allegations made by Christine Grahame against the Crown Agent, Norman McFadyen, in relation to the Lockerbie trial.
These are defamatory and entirely unfounded allegations of the most serious kind. Norman McFadyen is a man of the utmost integrity who is held in the highest regard by the Law Officers.
Not only is the allegation false in itself but Mrs Grahame appears to have misunderstood the process because the documents which she has referred to were not part of and had absolutely nothing to do with it.
The whole process was fully considered by the trial court which thanked the then Lord Advocate for the Crown s efforts to bring as much information as possible before the Court.
By the end of the process information made available to the Crown by the US authorities was made available to the defence, the trial court and also the Scottish Criminal Cases Review Commission in the form in which it was received from the US authorities.
The Commission extensively and fully investigated the process. The Commission concluded that there was no basis to refer the issue to the appeal court.
[According to a report dated 21 July on The Firm's website, the Crown Office is refusing to answer Mr Raeburn's queries.]
The Scottish Government advise that the news release below was sent by Crown Office.
As an editor, I am concerned at the covert nature of this, which does appear to constitute something of an off record whispering campaign, or a conscious effort to traduce Ms Grahame, who is an elected member of Parliament. Whilst not every editor may be familiar with the specific point Ms Grahame has made, which you claim is defamatory, I can advise you that the same point was made to me directly by Lhamin Khalifa Fhimah's former defence team in 2004, in terms far from less circumspect and a good deal more critical than the published claims of Ms Grahame. If her claims are true, which we must accept is a possibility, they cannot be defamatory, and accordingly Mr McFadyen may potentially have some legitimate questions to answer. The full picture may not prove to be as definitive as the release presently claims.
Hence, it is appropriate that we tread carefully. Therefore, would you be able to advise:
- Is this release attributable, and if so, to whom?
- Is this for publication?
- If the comments made my Ms Grahame are defamatory as claimed, is an action for defamation being pursued?
- If the "defamatory and entirely unfounded allegations of the most serious kind" have been published, is any action being taken against the publication(s) in question?
- And do you have any additional statement to make in respect of this?
I do await hearing from you.
---------
From: THE SCOTTISH GOVERNMENT
NOTE TO EDITORS
We have been made aware of serious allegations made by Christine Grahame against the Crown Agent, Norman McFadyen, in relation to the Lockerbie trial.
These are defamatory and entirely unfounded allegations of the most serious kind. Norman McFadyen is a man of the utmost integrity who is held in the highest regard by the Law Officers.
Not only is the allegation false in itself but Mrs Grahame appears to have misunderstood the process because the documents which she has referred to were not part of and had absolutely nothing to do with it.
The whole process was fully considered by the trial court which thanked the then Lord Advocate for the Crown s efforts to bring as much information as possible before the Court.
By the end of the process information made available to the Crown by the US authorities was made available to the defence, the trial court and also the Scottish Criminal Cases Review Commission in the form in which it was received from the US authorities.
The Commission extensively and fully investigated the process. The Commission concluded that there was no basis to refer the issue to the appeal court.
[According to a report dated 21 July on The Firm's website, the Crown Office is refusing to answer Mr Raeburn's queries.]
Cancer care expert voices concern for al Megrahi
An eminent psychologist and expert in cancer support who assessed the man convicted of the Lockerbie bombing has spoken for the first time about his fears for the Libyan.
Dr James Brennan, consultant clinical psychologist at the Bristol Haematology and Oncology Centre, warned that Abdelbaset Ali Mohmed al Megrahi is so culturally isolated that it is almost impossible for him to come to terms with his terminal illness.
In an exclusive interview with The Herald, Dr Brennan, who is also a senior lecturer in palliative medicine at Bristol University, said that Megrahi was "desperate", partly because he cannot spend his remaining time with his family. (...)
Dr Brennan said: "Physically he is deteriorating, and emotionally he will deteriorate further without suitable support. It would seem to me that the best form of support would be from his family in his own country.
"Human beings can only cope and conceptualise the end of life through language and it is impossible to imagine how to do this in isolation or through occasional telephone calls with family."
In May, the Libyan government applied for prisoner transfer of Megrahi and Justice Secretary Kenny MacAskill has 90 days to make a decision. The transfer cannot go ahead while legal proceedings are live.
Megrahi has signed a document saying he would drop proceedings, but the move has led to an international political impasse as Mr MacAskill says he cannot complete the transfer until Megrahi has dropped the appeal.
Supporters, including Christine Graham MSP, are pushing for his "compassionate release" as a preferable alternative. Others, including many of the relatives in the US, are furious that the transfer is even under consideration.
"What struck me is just how isolated he is," said Dr Brennan. "He has got so few people he can talk to or relate to. He is cut off from natural systems of support and there is no-one there of a similar cultural background.
"The most important thing when we are facing our mortality is the opportunity to talk about it with friends and family. I have worked in cancer for 17 years and have worked with a lot of people facing the end of their lives and the way they prepare themselves for death is through talking.
"As someone who works in the NHS, it seems inhumane to tell someone they have a fatal illness and then just take them back to their cell. He cannot attend to the things that most people would want to - including preparing their children for the fact he is going to die."
Dr Brennan added: "He seemed very motivated to get his appeal heard. Nonetheless, he seemed desperate and I felt he was very much heading for a major depression.
"He has not made friends in prison. There was someone who worked in the kitchen from India that he got to know, but he has left. This is an educated man and he is pretty offended by the language and blasphemy he hears there.
"To me, he felt very genuine and open. Even though he knows I have no power, he wanted me to know that he is not the monster he has been portrayed as, but a father and husband.
[From an article by Lucy Adams in today's edition of The Herald. The full text can be read here.]
Dr James Brennan, consultant clinical psychologist at the Bristol Haematology and Oncology Centre, warned that Abdelbaset Ali Mohmed al Megrahi is so culturally isolated that it is almost impossible for him to come to terms with his terminal illness.
In an exclusive interview with The Herald, Dr Brennan, who is also a senior lecturer in palliative medicine at Bristol University, said that Megrahi was "desperate", partly because he cannot spend his remaining time with his family. (...)
Dr Brennan said: "Physically he is deteriorating, and emotionally he will deteriorate further without suitable support. It would seem to me that the best form of support would be from his family in his own country.
"Human beings can only cope and conceptualise the end of life through language and it is impossible to imagine how to do this in isolation or through occasional telephone calls with family."
In May, the Libyan government applied for prisoner transfer of Megrahi and Justice Secretary Kenny MacAskill has 90 days to make a decision. The transfer cannot go ahead while legal proceedings are live.
Megrahi has signed a document saying he would drop proceedings, but the move has led to an international political impasse as Mr MacAskill says he cannot complete the transfer until Megrahi has dropped the appeal.
Supporters, including Christine Graham MSP, are pushing for his "compassionate release" as a preferable alternative. Others, including many of the relatives in the US, are furious that the transfer is even under consideration.
"What struck me is just how isolated he is," said Dr Brennan. "He has got so few people he can talk to or relate to. He is cut off from natural systems of support and there is no-one there of a similar cultural background.
"The most important thing when we are facing our mortality is the opportunity to talk about it with friends and family. I have worked in cancer for 17 years and have worked with a lot of people facing the end of their lives and the way they prepare themselves for death is through talking.
"As someone who works in the NHS, it seems inhumane to tell someone they have a fatal illness and then just take them back to their cell. He cannot attend to the things that most people would want to - including preparing their children for the fact he is going to die."
Dr Brennan added: "He seemed very motivated to get his appeal heard. Nonetheless, he seemed desperate and I felt he was very much heading for a major depression.
"He has not made friends in prison. There was someone who worked in the kitchen from India that he got to know, but he has left. This is an educated man and he is pretty offended by the language and blasphemy he hears there.
"To me, he felt very genuine and open. Even though he knows I have no power, he wanted me to know that he is not the monster he has been portrayed as, but a father and husband.
[From an article by Lucy Adams in today's edition of The Herald. The full text can be read here.]
Stretched to the limit
In the courts, the second appeal by the man convicted of planting the bomb on Pan Am 103, Abdelbaset Ali Mohmed al-Megrahi, appeared to stumble earlier this month. A decision was expected on grounds 1 and 2 of Megrahi's appeal on 7 July. Instead the Lord President, Lord Hamilton, stunned everyone present when he announced that one of the five judges, Lord Wheatley, had undergone heart surgery and would not be able to participate further until September.
Lord Hamilton was asked by defence counsel Maggie Scott, QC, to consider appointing a "shadow" judge to the bench in consideration of Megrahi's deteriorating health. It is understood he will nominate a "shadow" shortly.
The problem has been that even with 36 Senators of the College of Justice, its highest-ever membership, it is difficult to find another judge who has not been "cup tied" by participation in a previous Lockerbie-related case – the original Camp Zeist trial, the five-judge bench that rejected Megrahi's first appeal, a role in the original prosecution or involvement in the 1990-91 fatal accident inquiry.
Professor Robert Black says there is an alternative solution available to the Lord President founded in normal Scots law: "The statutory quorum of judges for hearing criminal appeals is normally three. There was never any technical reason why Megrahi's new appeal had to be heard before five judges. They obviously chose to do so because the original trial was before three judges and the first appeal before a bench of five. That was in itself unusual because the number was specified in terms of a special Order in Council. But that Order in Council no longer applies. It expired at the end of the first appeal."
Prof Black's solution is to nominate the junior of the remaining four judges on the bench as the "shadow" in case of further misfortune, allowing the original schedule to be resumed. In parallel to the appeal, there is a separate process initiated by the application lodged by the government of Libya under the prisoner transfer agreement signed with the UK government in November 2008.
Scottish ministers are bound by the agreement and required to consider transfer applications made under it. Megrahi is the only known Libyan presently in jail in the UK. The Scottish Government received an application from the Libyan government in respect of Megrahi on 5 May. Responsibility for considering the application has fallen to justice secretary Kenny MacAskill, who has to carry out a quasi-judicial role in assessing the merits of the competing arguments.
As part of the exercise, MacAskill invited families of the US victims to take part in a video link consultation last week. The president of US Victims of Pan Am 103, retired lawyer Frank Duggan, says about eight family representatives were present in Washington and a similar number in New York. (...)
[Mr Duggan said] "It was very, very difficult and we were all blubbering. I got the impression Mr MacAskill was listening very carefully. Of course, he couldn't make comments, as that would compromise his role, but he was clearly going about his job properly."
Stephanie Bernstein, a recently-ordained Rabbi in Washington, says: "This decision for Mr MacAskill is very difficult, but very important."
Mr Duggan dismisses stories that said the US families had taken legal advice that would underpin an application for immediate judicial review should Mr MacAskill decided to grant the Libyan government application. "That is completely wrong," he says. "We haven't sought such legal opinion, nor do we intend to. There's no suggestion of us raising judicial review – as a group we don't have standing in the Scots jurisdiction. It's not an option.
"Don't get me wrong: if Megrahi is sent back, we will raise hell. It was clear in all the correspondence between the US, UK and the United Nations, if anyone was convicted (at Camp Zeist], they would serve the whole sentence in Scotland. That was the deal."
In terms of the prisoner transfer agreement, Mr MacAskill has 90 days from the date of the Libyan application, 5 May, to reach a decision. The application cannot proceed while legal proceedings continue; Megrahi would have to abandon his appeal to activate the transfer.
The key decision might not be a legal one, however. Megrahi's medical condition might cut across both the appeal and prisoner transfer agreement. If medical opinion were to establish that he is seriously ill and close to death, Mr MacAskill could order his release on compassionate grounds. On that basis, Megrahi would be deemed to have served his sentence in terms of Scots law.
Mr Duggan says: "There are thousands of prisoners in US jails with cancer who serve many years with it. We don't want a horrible death in jail for anyone, but at his bail hearing, it was said he could live for another five years. I think we have more faith in the Scottish legal system than you appear to over there."
[From an article by John Forsyth in today's edition of The Scotsman. The full text can be read here.]
Lord Hamilton was asked by defence counsel Maggie Scott, QC, to consider appointing a "shadow" judge to the bench in consideration of Megrahi's deteriorating health. It is understood he will nominate a "shadow" shortly.
The problem has been that even with 36 Senators of the College of Justice, its highest-ever membership, it is difficult to find another judge who has not been "cup tied" by participation in a previous Lockerbie-related case – the original Camp Zeist trial, the five-judge bench that rejected Megrahi's first appeal, a role in the original prosecution or involvement in the 1990-91 fatal accident inquiry.
Professor Robert Black says there is an alternative solution available to the Lord President founded in normal Scots law: "The statutory quorum of judges for hearing criminal appeals is normally three. There was never any technical reason why Megrahi's new appeal had to be heard before five judges. They obviously chose to do so because the original trial was before three judges and the first appeal before a bench of five. That was in itself unusual because the number was specified in terms of a special Order in Council. But that Order in Council no longer applies. It expired at the end of the first appeal."
Prof Black's solution is to nominate the junior of the remaining four judges on the bench as the "shadow" in case of further misfortune, allowing the original schedule to be resumed. In parallel to the appeal, there is a separate process initiated by the application lodged by the government of Libya under the prisoner transfer agreement signed with the UK government in November 2008.
Scottish ministers are bound by the agreement and required to consider transfer applications made under it. Megrahi is the only known Libyan presently in jail in the UK. The Scottish Government received an application from the Libyan government in respect of Megrahi on 5 May. Responsibility for considering the application has fallen to justice secretary Kenny MacAskill, who has to carry out a quasi-judicial role in assessing the merits of the competing arguments.
As part of the exercise, MacAskill invited families of the US victims to take part in a video link consultation last week. The president of US Victims of Pan Am 103, retired lawyer Frank Duggan, says about eight family representatives were present in Washington and a similar number in New York. (...)
[Mr Duggan said] "It was very, very difficult and we were all blubbering. I got the impression Mr MacAskill was listening very carefully. Of course, he couldn't make comments, as that would compromise his role, but he was clearly going about his job properly."
Stephanie Bernstein, a recently-ordained Rabbi in Washington, says: "This decision for Mr MacAskill is very difficult, but very important."
Mr Duggan dismisses stories that said the US families had taken legal advice that would underpin an application for immediate judicial review should Mr MacAskill decided to grant the Libyan government application. "That is completely wrong," he says. "We haven't sought such legal opinion, nor do we intend to. There's no suggestion of us raising judicial review – as a group we don't have standing in the Scots jurisdiction. It's not an option.
"Don't get me wrong: if Megrahi is sent back, we will raise hell. It was clear in all the correspondence between the US, UK and the United Nations, if anyone was convicted (at Camp Zeist], they would serve the whole sentence in Scotland. That was the deal."
In terms of the prisoner transfer agreement, Mr MacAskill has 90 days from the date of the Libyan application, 5 May, to reach a decision. The application cannot proceed while legal proceedings continue; Megrahi would have to abandon his appeal to activate the transfer.
The key decision might not be a legal one, however. Megrahi's medical condition might cut across both the appeal and prisoner transfer agreement. If medical opinion were to establish that he is seriously ill and close to death, Mr MacAskill could order his release on compassionate grounds. On that basis, Megrahi would be deemed to have served his sentence in terms of Scots law.
Mr Duggan says: "There are thousands of prisoners in US jails with cancer who serve many years with it. We don't want a horrible death in jail for anyone, but at his bail hearing, it was said he could live for another five years. I think we have more faith in the Scottish legal system than you appear to over there."
[From an article by John Forsyth in today's edition of The Scotsman. The full text can be read here.]
Saturday, 18 July 2009
US relatives push for review that could keep Megrahi in jail
[This is the headline over a story by Lucy Adams in today's edition of The Herald. It reads in part:]
American relatives of the victims of Pan Am 103 are expected to push for a judicial review if Justice Secretary Kenny MacAskill agrees to transfer the man convicted of the Lockerbie bombing.
The families have taken legal advice in both London and Scotland and will seek the move if Mr MacAskill agrees to a request already submitted by the Libyan government made under a Prisoner Transfer Agreement signed by Tony Blair in 2007.
It could significantly delay the return to Libya of Abdelbaset Ali Mohmed al Megrahi, 57, who is currently serving 27 years in HMP Greenock for the bombing and is receiving treatment for advanced stage prostate cancer.
SNP MSP Christine Grahame, who has visited Megrahi twice in prison recently, said this could effectively seal his fate, ensuring he dies here in prison. (...)
She is also to contact Mr MacAskill with concerns about the Crown Office signing a non-disclosure agreement with the US government in June 2000.
Frank Mulholland, the solicitor-general, recently wrote to Ms Grahame to explain that Norman McFadyen, the Crown Agent and now chief executive of the Crown Office, signed the document that allowed him to see certain documents but not share them with the defence. (...)
Ms Grahame believes that this failure to pass on the information poses very serious questions about the manner in which Crown officials conducted themselves.
Some redacted parts of the documents were later released to the court and subsequently discredited a Crown witness.
Senior Scottish Prison Service officials have said that there is nowhere within the prison estate properly suited to managing Megrahi's condition.
Ms Grahame said: "This makes the case for compassionate release absolutely imperative.
"That option is not subject to judicial review and is the only sensible compromise position in light of the fresh evidence and Mr Megrahi's deteriorating health.
"The weight of evidence which has emerged combined with the serious doubts raised over the original evidence that was led at the trial have left me in no doubt of Mr Megrahi's innocence.
"The likelihood of a drawn-out process resulting from a judicial review launched by US relatives would effectively condemn Mr Megrahi to die in prison. There has already been considerable delay which means he will not live to see the end of the appeal he has ongoing against his conviction.
"Senior officials in the Scottish Prison Service have already told me that there is nowhere within the prison estate suitable for Mr Megrahi as he undergoes his treatment.
"If he is allowed to die in prison and it is subsequently established he was innocent then many people will be looking at the reasons why the Scottish justice system failed so dramatically."
[An article by Tom Peterkin in today's edition of The Scotsman contains the following:]
Families of Lockerbie victims in the United States might apply for a judicial review if the Scottish Government decides Abdelbaset Ali Mohmed al-Megrahi should be sent home to Libya.
The possibility will be raised by the US-based organisation Victims of Pan Am 103 Group when its board meets next week in New Jersey.
Its president, Frank Duggan, a Washington lawyer, said there would be "uproar" if justice secretary Kenny MacAskill let Megrahi return home under a prisoner transfer agreement between the UK and Libya. (...)
Mr Duggan confirmed that a judicial review would be on the agenda when the group's board meets on Monday.
He said families of the US victims were assuming that MacAskill would "do the right thing" and decide that Megrahi should serve out his life sentence in a Scottish jail.
But he added: "The board is going to meet next Monday in New Jersey, and we could take a vote at the board on this issue." (...)
A spokesman for the Scottish Government said it "would not be appropriate to comment" while Mr MacAskill was considering representations on the prisoner transfer agreement.
A spokesman for the Crown Office said: "The decision in relation to prison transfer application from the Libyan authorities is wholly a matter for the Scottish ministers. The Crown has no role in this process."
[The Times publishes an article focusing on the furious reaction by the Crown Office to Christine Grahame MSP's
criticism of the Crown's having accepted access to evidence in the course of the Lockerbie trial under conditions that disabled it from passing that material on to the defence without the consent of the United States authorities. The article reads in part:]
The Crown Office last night took the unprecedented step of issuing a statement slapping down a Nationalist politician for making “defamatory and entirely unfounded allegations of the most serious kind”.
The rebuke came in a strongly worded statement after Christine Grahame, the SNP MSP, made serious allegations against Crown Office agent Norman McFadyen in relation to the handling of evidence in the Lockerbie trial.
A Crown Office spokesman said: “Norman McFadyen is a man of the utmost integrity who is held in the highest regard by the law officers. Not only is the allegation false in itself but Ms Grahame appears to have misunderstood the process because she has referred to documents which were not part of it.” The Crown Office made it clear that it had made all the material it held available to the trial court and also the Scottish Criminal Cases Review Commission.
[Note by RB: Whether the Crown Office made available to the defence and to the court all the material that it held is a highly contentious issue and is a matter that will be explored in some depth in future tranches of the current appeal by Abdelbaset Megrahi, assuming that his state of health does not compel him to abandon that appeal in order to benefit from prisoner transfer. It is also noteworthy that, as reported by The Times, the Crown Office statement refers only to "material that it held" and does not address the issue of material which it did not hold, but to which it was given access under terms that prevented the Crown from disclosing it to the defence.]
American relatives of the victims of Pan Am 103 are expected to push for a judicial review if Justice Secretary Kenny MacAskill agrees to transfer the man convicted of the Lockerbie bombing.
The families have taken legal advice in both London and Scotland and will seek the move if Mr MacAskill agrees to a request already submitted by the Libyan government made under a Prisoner Transfer Agreement signed by Tony Blair in 2007.
It could significantly delay the return to Libya of Abdelbaset Ali Mohmed al Megrahi, 57, who is currently serving 27 years in HMP Greenock for the bombing and is receiving treatment for advanced stage prostate cancer.
SNP MSP Christine Grahame, who has visited Megrahi twice in prison recently, said this could effectively seal his fate, ensuring he dies here in prison. (...)
She is also to contact Mr MacAskill with concerns about the Crown Office signing a non-disclosure agreement with the US government in June 2000.
Frank Mulholland, the solicitor-general, recently wrote to Ms Grahame to explain that Norman McFadyen, the Crown Agent and now chief executive of the Crown Office, signed the document that allowed him to see certain documents but not share them with the defence. (...)
Ms Grahame believes that this failure to pass on the information poses very serious questions about the manner in which Crown officials conducted themselves.
Some redacted parts of the documents were later released to the court and subsequently discredited a Crown witness.
Senior Scottish Prison Service officials have said that there is nowhere within the prison estate properly suited to managing Megrahi's condition.
Ms Grahame said: "This makes the case for compassionate release absolutely imperative.
"That option is not subject to judicial review and is the only sensible compromise position in light of the fresh evidence and Mr Megrahi's deteriorating health.
"The weight of evidence which has emerged combined with the serious doubts raised over the original evidence that was led at the trial have left me in no doubt of Mr Megrahi's innocence.
"The likelihood of a drawn-out process resulting from a judicial review launched by US relatives would effectively condemn Mr Megrahi to die in prison. There has already been considerable delay which means he will not live to see the end of the appeal he has ongoing against his conviction.
"Senior officials in the Scottish Prison Service have already told me that there is nowhere within the prison estate suitable for Mr Megrahi as he undergoes his treatment.
"If he is allowed to die in prison and it is subsequently established he was innocent then many people will be looking at the reasons why the Scottish justice system failed so dramatically."
[An article by Tom Peterkin in today's edition of The Scotsman contains the following:]
Families of Lockerbie victims in the United States might apply for a judicial review if the Scottish Government decides Abdelbaset Ali Mohmed al-Megrahi should be sent home to Libya.
The possibility will be raised by the US-based organisation Victims of Pan Am 103 Group when its board meets next week in New Jersey.
Its president, Frank Duggan, a Washington lawyer, said there would be "uproar" if justice secretary Kenny MacAskill let Megrahi return home under a prisoner transfer agreement between the UK and Libya. (...)
Mr Duggan confirmed that a judicial review would be on the agenda when the group's board meets on Monday.
He said families of the US victims were assuming that MacAskill would "do the right thing" and decide that Megrahi should serve out his life sentence in a Scottish jail.
But he added: "The board is going to meet next Monday in New Jersey, and we could take a vote at the board on this issue." (...)
A spokesman for the Scottish Government said it "would not be appropriate to comment" while Mr MacAskill was considering representations on the prisoner transfer agreement.
A spokesman for the Crown Office said: "The decision in relation to prison transfer application from the Libyan authorities is wholly a matter for the Scottish ministers. The Crown has no role in this process."
[The Times publishes an article focusing on the furious reaction by the Crown Office to Christine Grahame MSP's
criticism of the Crown's having accepted access to evidence in the course of the Lockerbie trial under conditions that disabled it from passing that material on to the defence without the consent of the United States authorities. The article reads in part:]
The Crown Office last night took the unprecedented step of issuing a statement slapping down a Nationalist politician for making “defamatory and entirely unfounded allegations of the most serious kind”.
The rebuke came in a strongly worded statement after Christine Grahame, the SNP MSP, made serious allegations against Crown Office agent Norman McFadyen in relation to the handling of evidence in the Lockerbie trial.
A Crown Office spokesman said: “Norman McFadyen is a man of the utmost integrity who is held in the highest regard by the law officers. Not only is the allegation false in itself but Ms Grahame appears to have misunderstood the process because she has referred to documents which were not part of it.” The Crown Office made it clear that it had made all the material it held available to the trial court and also the Scottish Criminal Cases Review Commission.
[Note by RB: Whether the Crown Office made available to the defence and to the court all the material that it held is a highly contentious issue and is a matter that will be explored in some depth in future tranches of the current appeal by Abdelbaset Megrahi, assuming that his state of health does not compel him to abandon that appeal in order to benefit from prisoner transfer. It is also noteworthy that, as reported by The Times, the Crown Office statement refers only to "material that it held" and does not address the issue of material which it did not hold, but to which it was given access under terms that prevented the Crown from disclosing it to the defence.]
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