[This is the headline over a report in today's edition of The Wall Street Journal. It reads in part:]
Libyan leader Moammar Gadhafi said he could "comprehend" the anger directed at him by Americans who lost relatives in the Lockerbie bombing, trying to strike a conciliatory tone a day after calling the United Nations Security Council a "terror council."
In an hour-long interview, Col. Gadhafi said he hoped to build a new era of relations with U.S. President Barack Obama -- whom he called "my son" during the same U.N. address -- and said he wanted to place his nation's decades-long conflict with Washington in the past.
The Libyan strongman denied his government had purposefully stoked nationalist sentiment surrounding the return home of Abdel Baset al-Megrahi, who was convicted of the 1988 bombing of a Pan Am jet that blew up over Lockerbie, Scotland. Mr. al-Megrahi, who has cancer, was released by Scottish authorities last month on humanitarian grounds.
Lockerbie families have particularly criticized the British and Scottish governments for the release of Mr. al-Megrahi, a former Libyan intelligence officer. Legislators in the U.S. and U.K. have called for inquiries into whether the move was tied to lucrative Libyan oil deals. Libyan and U.K. leaders have denied this.
Col. Gadhafi also said Mr. al-Megrahi's release came through proper legal channels. But he added that British companies have benefited in the past from the absence of U.S. firms inside Libya. Sanctions imposed on Libya after the Lockerbie bombing barred American oil companies from operating in the North African country until 2004.
"You see, Britain, even though it makes it look like it's in alliance with America, and being America's ally, kept its companies in Libya and they were doing business when the American companies left the Libyan market," Col. Gadhafi said.
He said he believed Mr. al-Megrahi's release, and the billions of dollars paid out by his government to the Lockerbie victims' families, could now allow U.S.-Libyan relations to move forward. "As a case, the Lockerbie question: I would say it's come to an end, legally, politically, financially, it is all over," Col. Gadhafi, wearing black boots and an ankle-length cape, said. "I would say, thank Allah that this problem has been solved to the satisfaction of all parties. We all feel the pain for such a tragedy."
Family members of the Lockerbie victims voiced outrage Thursday that Col. Gadhafi was allowed to visit New York this week, in the Libyan leader's first trip to the U.S. following decades of conflict with Washington.
"I don't think he's capable of remorse. I think he is the devil himself. He is a murderer," said Kara M. Weipz, whose brother died in the bombing. "This last month has been devastating to my family and myself."
Friday, 25 September 2009
Thursday, 24 September 2009
Crown challenged to prove semtex link to Pan Am 103
[This is the headline over an article published today on the website of the Scottish lawyers' magazine The Firm. The following are excerpts.]
[A] campaign initiated by the Lockerbie Justice Group ... challenges the Lord Advocate to openly demonstrate that Pan Am 103 could have been brought down by a semtex bomb, under controlled laboratory conditions.
The group state that fabric and circuit board fragments cannot survive a semtex explosion, and accordingly the entire Crown case against Abdelbaset Ali Mohmed Al Megrahi falls. In 2007 Ulrich Lumpert of timer company MEBO released an affidavit stating he had manufactured the circuit board “evidence” relied upon by the Crown at the Zeist trial. Earlier this year a report by Dr Ludwig de Braeckeleer concluded that the Crown’s case was “scientifically implausible”.
“The Crown theory utterly depended upon Judges believing that this white-hot sphere with a temperature of 6,800F, travelling in all available directions at 20,000mph did not scorch, never mind totally annihilate, a printed circuit board and a fabric label, which it was able to wholly detach from the shirt. Our group finds this utterly incredible,” the group said.
“We, as members of the concerned Scottish public, invite the Crown to openly demonstrate their theory under controlled laboratory conditions. Either the circuit board survives with its legible ID and soft solder, or it is annihilated in a white-hot gas. In the event of PCB annihilation, we demand a proper and independent committee of inquiry into ‘What brought this plane down?’ Will you please publicly demonstrate your theory, ... Lord Advocate?”
The challenge has been backed by Dr Hans Koechler, who observed the trial [as a UN-appointed observer] and called for a full public inquiry afterwards.
“It is highly important to address this question to the Scottish prosecutor’s office and I shall add my name to such an initiative,” he said.
“It is equally important that an explosives expert with impeccable academic credentials, ideally a University professor from a European country, endorses this initiative or confirms the basic physical facts in writing. Under this condition I can join the initiative.”
De Braeckeleer and researchers at the Centre of Explosives Technology Research in Socorro, New Mexico estimated that up to thirty pounds of explosive was needed to destroy a Boeing 747, if the explosion had occurred in the hold as the Crown claimed
“As the explosion of one pound of Semtex H inside the luggage container does not generate a blast wave sufficiently powerful to fracture the skin of the fuselage, we have little choice but to conclude that the verdict appears scientifically very implausible,” they said.
The group’s initiative is bolstered by the new testimony of former Ferranti electrical engineer Aitken Brotherston, experienced in testing circuitry for use in military applications.
“Although no doubt there have been some advances in the construction of circuit boards the predominance of boards in current use are the same as those I tested. In most cases the boards would happily catch light with a flame source similar to that of a Swan Vesta (...)
“While we did not test them to the 3000 plus degrees C temperatures of a Semtex explosion bright spot, even as an apprentice electronics engineer with Ferranti, my experience at much lower temperatures would persuade me that nothing of the circuit boards would survive that environment.
“The proposal that fragments of the board, of sufficient size to permit identification, packed with the bomb had survived a temperature environment of more than 3000 degree C in the explosion is to me just not credible.
“What it does demonstrate is the extent to which anyone promulgating that theory believes us out here in the real world to be completely stupid.”
[A] campaign initiated by the Lockerbie Justice Group ... challenges the Lord Advocate to openly demonstrate that Pan Am 103 could have been brought down by a semtex bomb, under controlled laboratory conditions.
The group state that fabric and circuit board fragments cannot survive a semtex explosion, and accordingly the entire Crown case against Abdelbaset Ali Mohmed Al Megrahi falls. In 2007 Ulrich Lumpert of timer company MEBO released an affidavit stating he had manufactured the circuit board “evidence” relied upon by the Crown at the Zeist trial. Earlier this year a report by Dr Ludwig de Braeckeleer concluded that the Crown’s case was “scientifically implausible”.
“The Crown theory utterly depended upon Judges believing that this white-hot sphere with a temperature of 6,800F, travelling in all available directions at 20,000mph did not scorch, never mind totally annihilate, a printed circuit board and a fabric label, which it was able to wholly detach from the shirt. Our group finds this utterly incredible,” the group said.
“We, as members of the concerned Scottish public, invite the Crown to openly demonstrate their theory under controlled laboratory conditions. Either the circuit board survives with its legible ID and soft solder, or it is annihilated in a white-hot gas. In the event of PCB annihilation, we demand a proper and independent committee of inquiry into ‘What brought this plane down?’ Will you please publicly demonstrate your theory, ... Lord Advocate?”
The challenge has been backed by Dr Hans Koechler, who observed the trial [as a UN-appointed observer] and called for a full public inquiry afterwards.
“It is highly important to address this question to the Scottish prosecutor’s office and I shall add my name to such an initiative,” he said.
“It is equally important that an explosives expert with impeccable academic credentials, ideally a University professor from a European country, endorses this initiative or confirms the basic physical facts in writing. Under this condition I can join the initiative.”
De Braeckeleer and researchers at the Centre of Explosives Technology Research in Socorro, New Mexico estimated that up to thirty pounds of explosive was needed to destroy a Boeing 747, if the explosion had occurred in the hold as the Crown claimed
“As the explosion of one pound of Semtex H inside the luggage container does not generate a blast wave sufficiently powerful to fracture the skin of the fuselage, we have little choice but to conclude that the verdict appears scientifically very implausible,” they said.
The group’s initiative is bolstered by the new testimony of former Ferranti electrical engineer Aitken Brotherston, experienced in testing circuitry for use in military applications.
“Although no doubt there have been some advances in the construction of circuit boards the predominance of boards in current use are the same as those I tested. In most cases the boards would happily catch light with a flame source similar to that of a Swan Vesta (...)
“While we did not test them to the 3000 plus degrees C temperatures of a Semtex explosion bright spot, even as an apprentice electronics engineer with Ferranti, my experience at much lower temperatures would persuade me that nothing of the circuit boards would survive that environment.
“The proposal that fragments of the board, of sufficient size to permit identification, packed with the bomb had survived a temperature environment of more than 3000 degree C in the explosion is to me just not credible.
“What it does demonstrate is the extent to which anyone promulgating that theory believes us out here in the real world to be completely stupid.”
Gaddafi's UN General Assembly speech
[Most of today's British newspapers contain accounts of Colonel Gaddafi's long speech to the UN General Assembly. None of the reports that I have seen (including the UN's own summary) indicates that he referred to Lockerbie or to Abdelbaset Megrahi. For an Arab perspective, there is a report on the English language website of Al Jazeera. The following are excerpts.]
Libya's president has attacked the permanent members of the United Nations Security Council during his first ever address to the UN General Assembly.
In a one-and-a-half hour speech in New York on Wednesday, Muammar Gaddafi said the veto-wielding nations of the Security Council were ignoring the views of the full 192 members of the General Assembly and the principles of the UN charter.
"The preamble [of the charter] says all nations are equal whether they are small or big," Gaddafi said in his address.
But he accused the permanent members of the council of undermining other states.
"The veto [held by the five permanent UN members] is against the charter, we do not accept it and we do not acknowledge it," he said.
"Veto power should be annulled."
In a speech that far exceeded the 15-minute slot he was allocated, Gaddafi read aloud sections from a paperback copy of the UN charter; at one point, he held it up and made a small tear in the cover, signalling his disdain.
"The Security Council did not provide us with security but with terror and sanctions," he said.
Gaddafi said the council, comprising the US, Britain, France, Russia and China, had failed to prevent or intervene in 65 wars that have taken place since the United Nations was established in 1945.
"How can we be happy about the world security if the world is controlled by four or five powers?" he complained. "We are just like a decor."
In his opinion, the General Assembly is the "the parliament of the world" - a 192-member body that should be dictating decisions to the Security Council. (...)
Gaddafi said adding more permanent seats would be counterproductive.
Instead, he called on regional federations and organisations, such as the Arab League, Organisation of American States, the African Union, and the Non-Aligned Movement to be given permanent seats at the Security Council.
The five permanent members should lose their veto, or the UN should expand the council with additional member states, Gaddafi said. (...)
Mohamed Ben-Madani, editor of the Maghreb Review, told Al Jazeera's that Gaddafi's speech was a "disaster" for the African Union and Arab and Muslim delegations at the General Assembly.
"I think the Libyans deserve much better than this. It is a disaster for Arab world opinion. Tearing up the UN charter is shocking, but this should have been expected from the beginning," he said.
"He said nothing about Libyan human rights and better education [for Libyans]. He said nothing about climate change or the environment."
As Gaddafi spoke, the US senate approved a [non-binding] resolution condemning the "lavish" welcome-home ceremony that Libya gave last month for Abdel Basset al-Megrahi, who was convicted of the bombing over a US passenger aircraft over the Scottish town of Lockerbie in 1989.
The US senate demanded that Tripoli apologise for the celebration, which came after Scotland's justice minister released al-Megrahi, a former agent, on compassionate grounds.
Libya has a temporary seat on the Security Council until the end of 2010.
[Families of US victims of the Lockerbie disaster were amongst those at the UN headquarters in New York to protest at Gaddafi's attendance. The report on the demonstration in today's edition of The Times can be read here.]
Libya's president has attacked the permanent members of the United Nations Security Council during his first ever address to the UN General Assembly.
In a one-and-a-half hour speech in New York on Wednesday, Muammar Gaddafi said the veto-wielding nations of the Security Council were ignoring the views of the full 192 members of the General Assembly and the principles of the UN charter.
"The preamble [of the charter] says all nations are equal whether they are small or big," Gaddafi said in his address.
But he accused the permanent members of the council of undermining other states.
"The veto [held by the five permanent UN members] is against the charter, we do not accept it and we do not acknowledge it," he said.
"Veto power should be annulled."
In a speech that far exceeded the 15-minute slot he was allocated, Gaddafi read aloud sections from a paperback copy of the UN charter; at one point, he held it up and made a small tear in the cover, signalling his disdain.
"The Security Council did not provide us with security but with terror and sanctions," he said.
Gaddafi said the council, comprising the US, Britain, France, Russia and China, had failed to prevent or intervene in 65 wars that have taken place since the United Nations was established in 1945.
"How can we be happy about the world security if the world is controlled by four or five powers?" he complained. "We are just like a decor."
In his opinion, the General Assembly is the "the parliament of the world" - a 192-member body that should be dictating decisions to the Security Council. (...)
Gaddafi said adding more permanent seats would be counterproductive.
Instead, he called on regional federations and organisations, such as the Arab League, Organisation of American States, the African Union, and the Non-Aligned Movement to be given permanent seats at the Security Council.
The five permanent members should lose their veto, or the UN should expand the council with additional member states, Gaddafi said. (...)
Mohamed Ben-Madani, editor of the Maghreb Review, told Al Jazeera's that Gaddafi's speech was a "disaster" for the African Union and Arab and Muslim delegations at the General Assembly.
"I think the Libyans deserve much better than this. It is a disaster for Arab world opinion. Tearing up the UN charter is shocking, but this should have been expected from the beginning," he said.
"He said nothing about Libyan human rights and better education [for Libyans]. He said nothing about climate change or the environment."
As Gaddafi spoke, the US senate approved a [non-binding] resolution condemning the "lavish" welcome-home ceremony that Libya gave last month for Abdel Basset al-Megrahi, who was convicted of the bombing over a US passenger aircraft over the Scottish town of Lockerbie in 1989.
The US senate demanded that Tripoli apologise for the celebration, which came after Scotland's justice minister released al-Megrahi, a former agent, on compassionate grounds.
Libya has a temporary seat on the Security Council until the end of 2010.
[Families of US victims of the Lockerbie disaster were amongst those at the UN headquarters in New York to protest at Gaddafi's attendance. The report on the demonstration in today's edition of The Times can be read here.]
Wednesday, 23 September 2009
We need an open mind and a fresh start at the Crown Office
[This is the heading over an article in the online edition of the Scottish Review by its editor, Kenneth Roy. It reads in part:]
There is nothing to deplore
Part of the job of the Lord Advocate under the devolved settlement is to give legal advice to the Scottish Government; at the same time she is the chief prosecutor of Scotland, responsible for bringing the most serious charges to court. There has always been an inherent dichotomy between these two roles. How can the public prosecutor, committed to the pursuit of conviction, offer ministers impartial legal advice? The long years of the Lockerbie case have made this balancing act almost impossible. Lockerbie was big politics when Alex Salmond 'de-politicised' the post of Lord Advocate; it is bigger politics now; it is likely to remain a huge and troubling issue.
There is a suggestion that Elish Angiolini was not fully consulted, if she was consulted at all, about the justice secretary's decision to release the man convicted of the Lockerbie bombing – loosely described by the BBC and others as 'the bomber' – on compassionate grounds. Perhaps she feels aggrieved. Perhaps she is entitled to feel aggrieved. Whatever the explanation, last weekend she made a statement which indicated a loss of composure. She said she 'deplored' the attempt by Megrahi to challenge his conviction by releasing on the internet the papers he would have used in his abandoned appeal.
What is there to deplore? The case, from the point of view of the person whose behaviour is being deplored, is clear enough. He is in pain. He has been in prison for eight years. He says that he is the victim of a miscarriage of justice. He says that he is innocent of the crimes for which he has been convicted. He says that he has treated the judiciary of the country of his imprisonment with courtesy and respect at all times. But now, at the age of 57, he is dying. Who can tell when? Only God knows; or, in the absence of God, no one. The little gods of the media demand no less; within three months at that. His death will occur soon enough no doubt, with or without journalistic temptations of providence. He wishes to clear his name while there is still a little time left. That much should be understandable to any fully paid-up member of the human race.
The Lord Advocate declares that the appropriate forum for innocence or guilt to be decided is a court of law, and that it was Megrahi's decision to withdraw from the legal determination of his case. This claim ignores two realities of the situation. First, there have been too many grave miscarriages of justice in this country for the authority of the judicial system ever to be completely trusted. Earlier this week it was announced that, in the light of the release of Sean Hodgson after 27 years in jail for a crime he did not commit, DNA evidence having proved that he could not have committed it, no fewer than 240 murder and rape convictions are now being 'reviewed' in England and Wales. Second, the failure of Megrahi's appeal against conviction to be heard is not his fault, but the result of a succession of official delays which have never been satisfactorily explained.
Yet, audaciously, the Lord Advocate suggests that, in dropping the appeal, he has made his subsequent action deplorable. Consider the position in which he finds himself. He wishes to return to his own country, to his family, as any of us would wish to do. He believes that dropping the appeal will hasten this outcome. He drops the appeal. He achieves the desired outcome. But still he is anxious to tell the world what he would have said if the long-delayed hearing had ever gone ahead.
All this is simple humanity. It is how any of us might choose to defend the integrity of our life as it comes to an end. It is basic stuff. But I agree that it is essentially an emotional response, in the same way that Mrs Angiolini reached for a word of feeling, the word 'deplore'.
As it happens, however, it is not just simple humanity. It is not just basic stuff. The dying man's entitlement to do what he did last week is actually enshrined in a piece of legislation called the Human Rights Act 1998. Mrs Angiolini is more familiar with this act than most of us. In 1997, she ceased for a while to be a prosecutor in the criminal courts and joined the Crown Office as head of policy. One of her responsibilities was to prepare her department for the introduction of the Human Rights Act 1998. I imagine that, a brief 11 years later, she will not have forgotten what it says.
She will not have forgotten, for example, Article 10 on free expression. Free expression, to which you and I have a human right, is defined in the legislation as the holding of views or opinions, the speaking of them aloud or their publication in articles or books or leaflets, or the broadcasting of them on television or radio, or their communication through the internet. Under Article 10, you and I may use language which others find offensive or shocking, so long as we are not doing so in a racial or ethnic context. This means that, although you and I may find the Lord Advocate's use of language last Friday slightly offensive, she is perfectly entitled to use such language. But the dying man is equally entitled to express his opinions and the law specifically permits him to use the internet as a medium for doing so.
Since, then, the dying man is exercising his legal entitlement under the Human Rights Act 1998, I must put the question again: what is there to deplore? The use of the word tells us more about the Lord Advocate than it does about the case. It is possible that Mrs Angiolini is so exasperated by the constant questioning of the Crown Office's motives and conduct during her years as Solicitor General (2001-06) and Lord Advocate (since 2006) that she could restrain herself no longer. The questioning, however, continues; it will not go away. An essay in the current edition of the London Review of Books by her fellow solicitor, Gareth Peirce, concludes after a devastating forensic deconstruction of the Lockerbie prosecution that there has been 'a form of death in this case – the death of justice'. Such perceptions do serious damage. What follows 'the death of justice'? From Mrs Angiolini or her successor we should hear no more talk of deploring. We need an open mind, a fresh start, a spirit of humility. But beyond that, a structural change is required. It is time to separate the two functions of the office of Lord Advocate, disempowering the holder of the office from any responsibility for public prosecutions. This change has long been mooted; it has become overdue. If it is too late to save the reputation of Megrahi, it should not be too late to save the reputation of Scottish justice.
There is nothing to deplore
Part of the job of the Lord Advocate under the devolved settlement is to give legal advice to the Scottish Government; at the same time she is the chief prosecutor of Scotland, responsible for bringing the most serious charges to court. There has always been an inherent dichotomy between these two roles. How can the public prosecutor, committed to the pursuit of conviction, offer ministers impartial legal advice? The long years of the Lockerbie case have made this balancing act almost impossible. Lockerbie was big politics when Alex Salmond 'de-politicised' the post of Lord Advocate; it is bigger politics now; it is likely to remain a huge and troubling issue.
There is a suggestion that Elish Angiolini was not fully consulted, if she was consulted at all, about the justice secretary's decision to release the man convicted of the Lockerbie bombing – loosely described by the BBC and others as 'the bomber' – on compassionate grounds. Perhaps she feels aggrieved. Perhaps she is entitled to feel aggrieved. Whatever the explanation, last weekend she made a statement which indicated a loss of composure. She said she 'deplored' the attempt by Megrahi to challenge his conviction by releasing on the internet the papers he would have used in his abandoned appeal.
What is there to deplore? The case, from the point of view of the person whose behaviour is being deplored, is clear enough. He is in pain. He has been in prison for eight years. He says that he is the victim of a miscarriage of justice. He says that he is innocent of the crimes for which he has been convicted. He says that he has treated the judiciary of the country of his imprisonment with courtesy and respect at all times. But now, at the age of 57, he is dying. Who can tell when? Only God knows; or, in the absence of God, no one. The little gods of the media demand no less; within three months at that. His death will occur soon enough no doubt, with or without journalistic temptations of providence. He wishes to clear his name while there is still a little time left. That much should be understandable to any fully paid-up member of the human race.
The Lord Advocate declares that the appropriate forum for innocence or guilt to be decided is a court of law, and that it was Megrahi's decision to withdraw from the legal determination of his case. This claim ignores two realities of the situation. First, there have been too many grave miscarriages of justice in this country for the authority of the judicial system ever to be completely trusted. Earlier this week it was announced that, in the light of the release of Sean Hodgson after 27 years in jail for a crime he did not commit, DNA evidence having proved that he could not have committed it, no fewer than 240 murder and rape convictions are now being 'reviewed' in England and Wales. Second, the failure of Megrahi's appeal against conviction to be heard is not his fault, but the result of a succession of official delays which have never been satisfactorily explained.
Yet, audaciously, the Lord Advocate suggests that, in dropping the appeal, he has made his subsequent action deplorable. Consider the position in which he finds himself. He wishes to return to his own country, to his family, as any of us would wish to do. He believes that dropping the appeal will hasten this outcome. He drops the appeal. He achieves the desired outcome. But still he is anxious to tell the world what he would have said if the long-delayed hearing had ever gone ahead.
All this is simple humanity. It is how any of us might choose to defend the integrity of our life as it comes to an end. It is basic stuff. But I agree that it is essentially an emotional response, in the same way that Mrs Angiolini reached for a word of feeling, the word 'deplore'.
As it happens, however, it is not just simple humanity. It is not just basic stuff. The dying man's entitlement to do what he did last week is actually enshrined in a piece of legislation called the Human Rights Act 1998. Mrs Angiolini is more familiar with this act than most of us. In 1997, she ceased for a while to be a prosecutor in the criminal courts and joined the Crown Office as head of policy. One of her responsibilities was to prepare her department for the introduction of the Human Rights Act 1998. I imagine that, a brief 11 years later, she will not have forgotten what it says.
She will not have forgotten, for example, Article 10 on free expression. Free expression, to which you and I have a human right, is defined in the legislation as the holding of views or opinions, the speaking of them aloud or their publication in articles or books or leaflets, or the broadcasting of them on television or radio, or their communication through the internet. Under Article 10, you and I may use language which others find offensive or shocking, so long as we are not doing so in a racial or ethnic context. This means that, although you and I may find the Lord Advocate's use of language last Friday slightly offensive, she is perfectly entitled to use such language. But the dying man is equally entitled to express his opinions and the law specifically permits him to use the internet as a medium for doing so.
Since, then, the dying man is exercising his legal entitlement under the Human Rights Act 1998, I must put the question again: what is there to deplore? The use of the word tells us more about the Lord Advocate than it does about the case. It is possible that Mrs Angiolini is so exasperated by the constant questioning of the Crown Office's motives and conduct during her years as Solicitor General (2001-06) and Lord Advocate (since 2006) that she could restrain herself no longer. The questioning, however, continues; it will not go away. An essay in the current edition of the London Review of Books by her fellow solicitor, Gareth Peirce, concludes after a devastating forensic deconstruction of the Lockerbie prosecution that there has been 'a form of death in this case – the death of justice'. Such perceptions do serious damage. What follows 'the death of justice'? From Mrs Angiolini or her successor we should hear no more talk of deploring. We need an open mind, a fresh start, a spirit of humility. But beyond that, a structural change is required. It is time to separate the two functions of the office of Lord Advocate, disempowering the holder of the office from any responsibility for public prosecutions. This change has long been mooted; it has become overdue. If it is too late to save the reputation of Megrahi, it should not be too late to save the reputation of Scottish justice.
Deception over Lockerbie?
[This is the title of a lengthy review article by Dr Malise Ruthven in the October 2009 issue of The New York Review of Books. The following are excerpts.]
After it became clear that Megrahi could not be excluded from the prisoner transfer agreement, it seems the Scottish and British governments actively encouraged him and his legal team to seek a release on compassionate grounds.
At stake, for the British, were contracts for oil and gas exploration worth up to £15 billion ($24 billion) for British Petroleum (BP), announced in May 2007, as well as plans to open a London office of the Libyan Investment Authority, a sovereign fund with £83 billion ($136 billion) to invest. Libya refused to ratify the contracts until Straw abandoned his insistence on excluding Megrahi from the prisoner transfer agreement. Shortly after Brown's statement, Straw admitted—in apparent contradiction to his prime minister—that oil had been "a very big part" of his negotiations. British leaders were also warned that trade deals worth billions could be canceled. "The wider negotiations with the Libyans are reaching a critical stage," Straw wrote to MacAskill in December 2007, "and in view of the overwhelming interests for the United Kingdom I have agreed that in this instance the PTA [prisoner transfer agreement] should be in the standard form and not mention any individual." Within six weeks of the British government's concession, Libya had ratified the BP deal. The prisoner transfer agreement was finalized in May of this year, leading to Libya formally applying for Megrahi to be transferred to its custody.
For the SNP government in Edinburgh, the "compassion loophole" made it possible to avoid authorizing Megrahi's release under an agreement negotiated by London. The decision was widely condemned in Scotland, with the minority SNP administration losing a vote by 73–50 in the Scottish parliament on a government motion that the release of Megrahi on compassionate grounds was "consistent with the principles of Scottish justice." But there was a further twist to this story. Before his release from Greenock prison near Glasgow and his flight to Tripoli in a chartered Libyan jet, Megrahi agreed to drop his appeal against the life sentence he received from the specially convened Scottish court sitting at Camp Zeist in the Netherlands in 2001.
Megrahi has always insisted on his innocence, and doubts about his conviction have been expressed by several influential figures, most notably Dr. Jim Swire, a spokesman for the UK families of Flight 103, whose daughter Flora died in the crash, and Professor Hans Köchler, official UN observer at Megrahi's trial at Camp Zeist. In his reports to the UN secretary-general, Köchler deplored the political atmosphere of the trial and the failure of the court to consider evidence of foreign (i.e., non-Libyan) government involvement that formed part of a special defense—inculpating others—that is available under Scottish law.
He was even more forthright in condemning the rejection of Megrahi's first appeal in March 2002—calling it a "spectacular miscarriage of justice"—which took place at the same time as discussions with Libya over compensation for the victims' families. The presence of a Libyan "defense support team" hampered the efforts of the Scottish defense lawyers, who failed to raise vital questions about the withholding of evidence and the reliability of witnesses. Two notable omissions Köchler highlighted were the alleged coaching of a key prosecution witness by Scottish police and the appeal court's failure to consider evidence of a break-in at the baggage storage area in London's Heathrow airport on the night before the bombing. (...)
A widely held suspicion at the beginning of the investigation pointed toward the culpability of a Palestinian faction, the Popular Front for the Liberation of Palestine–General Command (PFLP-GC), working under the protection of Syria. The theory held that the PFLP-GC, who specialized in aircraft hijackings using semtex bombs concealed in tape recorders, may have been "sub- contracted" by Syria's Iranian allies to bring down Pan Am Flight 103 in revenge for the accidental shooting down of an Iranian civilian airliner by the USS Vincennes in July 1988, just months before the bombing of Flight 103.
At the time Iran's Supreme Leader Ayatollah Khomeini vowed that the skies would "rain blood" in revenge for the loss of 290 civilian lives, including 66 children. Two defectors from Iranian intelligence agencies—or alleged defectors—subsequently accused the Iranian government of being behind the attacks for which the PFLP-GC was said to have been paid $10 million. Some analysts have argued that leads pointing toward the Palestinian-Syrian-Iranian connection were purposefully deflected after the 1990 Iraqi invasion of Kuwait, when Syria became—albeit temporarily—a US coalition ally. Libya, the only Arab state to support Saddam's invasion, remained a more tenable target for exacting exemplary justice.
After a decade of sanctions and interventions by UN Secretary-General Kofi Annan and South African President Nelson Mandela, the Libyans in 1999 gave up Megrahi and his alleged associate Lamin Khalifah Fhimah, who would later be acquitted. The case against Megrahi hinged on a fragment recovered at Lockerbie of a timing device traced to a Swiss manufacturer, Mebo. The firm had sold timers to Libya that differed in design from those allegedly used in cassette bombs of the type attributed to the PFLP-GC. The clothing in which the bomb was said to have been wrapped inside a suitcase was traced to a shop in Malta that Megrahi was alleged to have visited, traveling under an assumed name, on December 20–21, 1988.
Although the evidence was purely circumstantial (there was no direct evidence that either he or Fhimah had placed the device aboard the aircraft), the judges wrote in their decision that the preponderance of the evidence led them to believe that Megrahi was guilty as charged. He was sentenced to life imprisonment, with a recommended minimum of twenty-seven years, to be served in a Scottish jail. A major reason for US anger at Megrahi's release has been the repeated assurances given by the British government that he would serve out his full term.
In December 2003, as part of its campaign to end UN sanctions and abandon its pariah status, Libya accepted responsibility for the bombing, and agreed to pay compensation to the victims' families—although it continued to maintain Megrahi's innocence, as he had done throughout his trial. His position divided observers: some see his continuing denial as the standard response of a professional intelligence officer, as summarized by the unofficial motto of the CIA's Office of Technical Services—"admit nothing, deny everything, make counter-accusations."
Others, including a significant group of Scottish lawyers and laypersons, take a different view. In June 2007, after an investigation lasting nearly four years, the Scottish Criminal Case Review Commission delivered an eight-hundred-page report—with thirteen annexes—that identified several areas where "a miscarriage of justice may have occurred" and referred Megrahi's case to the Court of Criminal Appeal in Edinburgh. The commission considered evidence that cast doubt on the dates on which Megrahi was supposed to have been in Malta as well as the testimony of the Maltese shopkeeper who claimed to have sold clothing to Megrahi. He had changed his testimony several times, and had been shown Megrahi's photograph before picking him out of a line-up. It was expected that the fresh appeal would also consider new evidence about the timing device, as well as the reported break-in at Heathrow airport, which indicate that the bomb could have been planted in London rather than in a suitcase checked from Malta to New York, as the prosecution had claimed.
In July 2007, Ulrich Lumpert, a former engineer at Mebo and a key technical witness, admitted that he had committed perjury at the Camp Zeist trial. In a sworn affidavit he declared that he had stolen a handmade sample of an MST-13 Timer PC-board from Mebo in Zurich and handed it to an unnamed official investigating the Lockerbie case. He also affirmed that the fragment of the timer presented in court as part of the Lockerbie wreckage had in fact been part of this stolen sample. When he became aware that this piece was to be used as evidence for an "intentionally politically motivated criminal undertaking," he said, he decided to keep silent out of fear for his life.
Although it would have been necessary for Megrahi to drop his appeal under the prisoner transfer scheme, this was not a precondition for release on compassionate grounds. Nevertheless it seems likely that he was pressured into abandoning the appeal. Oliver Miles, a former British ambassador to Libya, has suggested that the dropping of the appeal, rather than "a deal involving business," was the real quid pro quo behind Megrahi's release. According to Miles, Scottish legal sources had been talking of a mood of "growing anxiety in the Scottish justice department that a successful appeal...would severely damage the reputation of the Scottish justice system."
After it became clear that Megrahi could not be excluded from the prisoner transfer agreement, it seems the Scottish and British governments actively encouraged him and his legal team to seek a release on compassionate grounds.
At stake, for the British, were contracts for oil and gas exploration worth up to £15 billion ($24 billion) for British Petroleum (BP), announced in May 2007, as well as plans to open a London office of the Libyan Investment Authority, a sovereign fund with £83 billion ($136 billion) to invest. Libya refused to ratify the contracts until Straw abandoned his insistence on excluding Megrahi from the prisoner transfer agreement. Shortly after Brown's statement, Straw admitted—in apparent contradiction to his prime minister—that oil had been "a very big part" of his negotiations. British leaders were also warned that trade deals worth billions could be canceled. "The wider negotiations with the Libyans are reaching a critical stage," Straw wrote to MacAskill in December 2007, "and in view of the overwhelming interests for the United Kingdom I have agreed that in this instance the PTA [prisoner transfer agreement] should be in the standard form and not mention any individual." Within six weeks of the British government's concession, Libya had ratified the BP deal. The prisoner transfer agreement was finalized in May of this year, leading to Libya formally applying for Megrahi to be transferred to its custody.
For the SNP government in Edinburgh, the "compassion loophole" made it possible to avoid authorizing Megrahi's release under an agreement negotiated by London. The decision was widely condemned in Scotland, with the minority SNP administration losing a vote by 73–50 in the Scottish parliament on a government motion that the release of Megrahi on compassionate grounds was "consistent with the principles of Scottish justice." But there was a further twist to this story. Before his release from Greenock prison near Glasgow and his flight to Tripoli in a chartered Libyan jet, Megrahi agreed to drop his appeal against the life sentence he received from the specially convened Scottish court sitting at Camp Zeist in the Netherlands in 2001.
Megrahi has always insisted on his innocence, and doubts about his conviction have been expressed by several influential figures, most notably Dr. Jim Swire, a spokesman for the UK families of Flight 103, whose daughter Flora died in the crash, and Professor Hans Köchler, official UN observer at Megrahi's trial at Camp Zeist. In his reports to the UN secretary-general, Köchler deplored the political atmosphere of the trial and the failure of the court to consider evidence of foreign (i.e., non-Libyan) government involvement that formed part of a special defense—inculpating others—that is available under Scottish law.
He was even more forthright in condemning the rejection of Megrahi's first appeal in March 2002—calling it a "spectacular miscarriage of justice"—which took place at the same time as discussions with Libya over compensation for the victims' families. The presence of a Libyan "defense support team" hampered the efforts of the Scottish defense lawyers, who failed to raise vital questions about the withholding of evidence and the reliability of witnesses. Two notable omissions Köchler highlighted were the alleged coaching of a key prosecution witness by Scottish police and the appeal court's failure to consider evidence of a break-in at the baggage storage area in London's Heathrow airport on the night before the bombing. (...)
A widely held suspicion at the beginning of the investigation pointed toward the culpability of a Palestinian faction, the Popular Front for the Liberation of Palestine–General Command (PFLP-GC), working under the protection of Syria. The theory held that the PFLP-GC, who specialized in aircraft hijackings using semtex bombs concealed in tape recorders, may have been "sub- contracted" by Syria's Iranian allies to bring down Pan Am Flight 103 in revenge for the accidental shooting down of an Iranian civilian airliner by the USS Vincennes in July 1988, just months before the bombing of Flight 103.
At the time Iran's Supreme Leader Ayatollah Khomeini vowed that the skies would "rain blood" in revenge for the loss of 290 civilian lives, including 66 children. Two defectors from Iranian intelligence agencies—or alleged defectors—subsequently accused the Iranian government of being behind the attacks for which the PFLP-GC was said to have been paid $10 million. Some analysts have argued that leads pointing toward the Palestinian-Syrian-Iranian connection were purposefully deflected after the 1990 Iraqi invasion of Kuwait, when Syria became—albeit temporarily—a US coalition ally. Libya, the only Arab state to support Saddam's invasion, remained a more tenable target for exacting exemplary justice.
After a decade of sanctions and interventions by UN Secretary-General Kofi Annan and South African President Nelson Mandela, the Libyans in 1999 gave up Megrahi and his alleged associate Lamin Khalifah Fhimah, who would later be acquitted. The case against Megrahi hinged on a fragment recovered at Lockerbie of a timing device traced to a Swiss manufacturer, Mebo. The firm had sold timers to Libya that differed in design from those allegedly used in cassette bombs of the type attributed to the PFLP-GC. The clothing in which the bomb was said to have been wrapped inside a suitcase was traced to a shop in Malta that Megrahi was alleged to have visited, traveling under an assumed name, on December 20–21, 1988.
Although the evidence was purely circumstantial (there was no direct evidence that either he or Fhimah had placed the device aboard the aircraft), the judges wrote in their decision that the preponderance of the evidence led them to believe that Megrahi was guilty as charged. He was sentenced to life imprisonment, with a recommended minimum of twenty-seven years, to be served in a Scottish jail. A major reason for US anger at Megrahi's release has been the repeated assurances given by the British government that he would serve out his full term.
In December 2003, as part of its campaign to end UN sanctions and abandon its pariah status, Libya accepted responsibility for the bombing, and agreed to pay compensation to the victims' families—although it continued to maintain Megrahi's innocence, as he had done throughout his trial. His position divided observers: some see his continuing denial as the standard response of a professional intelligence officer, as summarized by the unofficial motto of the CIA's Office of Technical Services—"admit nothing, deny everything, make counter-accusations."
Others, including a significant group of Scottish lawyers and laypersons, take a different view. In June 2007, after an investigation lasting nearly four years, the Scottish Criminal Case Review Commission delivered an eight-hundred-page report—with thirteen annexes—that identified several areas where "a miscarriage of justice may have occurred" and referred Megrahi's case to the Court of Criminal Appeal in Edinburgh. The commission considered evidence that cast doubt on the dates on which Megrahi was supposed to have been in Malta as well as the testimony of the Maltese shopkeeper who claimed to have sold clothing to Megrahi. He had changed his testimony several times, and had been shown Megrahi's photograph before picking him out of a line-up. It was expected that the fresh appeal would also consider new evidence about the timing device, as well as the reported break-in at Heathrow airport, which indicate that the bomb could have been planted in London rather than in a suitcase checked from Malta to New York, as the prosecution had claimed.
In July 2007, Ulrich Lumpert, a former engineer at Mebo and a key technical witness, admitted that he had committed perjury at the Camp Zeist trial. In a sworn affidavit he declared that he had stolen a handmade sample of an MST-13 Timer PC-board from Mebo in Zurich and handed it to an unnamed official investigating the Lockerbie case. He also affirmed that the fragment of the timer presented in court as part of the Lockerbie wreckage had in fact been part of this stolen sample. When he became aware that this piece was to be used as evidence for an "intentionally politically motivated criminal undertaking," he said, he decided to keep silent out of fear for his life.
Although it would have been necessary for Megrahi to drop his appeal under the prisoner transfer scheme, this was not a precondition for release on compassionate grounds. Nevertheless it seems likely that he was pressured into abandoning the appeal. Oliver Miles, a former British ambassador to Libya, has suggested that the dropping of the appeal, rather than "a deal involving business," was the real quid pro quo behind Megrahi's release. According to Miles, Scottish legal sources had been talking of a mood of "growing anxiety in the Scottish justice department that a successful appeal...would severely damage the reputation of the Scottish justice system."
Gaddafi at the UN
[Most of today's London and Scottish newspapers carry reports on Colonel Gaddafi's attendance at the United Nations and the speech which he is to deliver later today at the 64th session of the General Assembly. The following are excerpts from the story in The Herald.]
Protests will greet Colonel Muammar Gaddafi as he heads to the United Nations in New York today.
The Libyan leader is due to address the general assembly in the morning session with demonstrations planned for outside the compound from relatives of the Lockerbie bombing and other terrorist atrocities. (...)
But it is the appearance of Mr Gaddafi so soon after the release of Abdelbaset Ali Mohmed Al Megrahi - the man convicted of the 1988 bombing of Pan Am Flight 103 - that is likely to draw most attention in the US.
Of the 270 lives lost when the plane crashed after exploding over the Scottish town of Lockerbie, 189 were American.
The release of the terminally ill Megrahi on compassionate grounds by the Scottish government drew widespread condemnation in the US.
As such, the appearance of Mr Gaddafi in New York could not have come at a more sensitive time. (...)
He arrived yesterday ahead of the UN meeting and anticipated associated demonstrations.
Attending today’s action will be relatives of those killed in the Lockerbie bombing. They will march on the UN compound alongside others affected by terrorist atrocities, including loved ones of those killed in the September 11 attacks in New York.
Frank Duggan, president of the Victims of Pan Am 103, said: “We are planning a massive demonstration in New York City when Gaddafi will arrive here - objecting to the presence of the Libyan leader on the US soil.
“I personally understand the motives of the US government in trying to bring Libya into the community of peaceful nations, but that does not mean that we have to roll out the red carpet for him to strut on.
“He delights in rubbing salt into our wounds, and he has already misled the UN as to his intentions.”
Protests will greet Colonel Muammar Gaddafi as he heads to the United Nations in New York today.
The Libyan leader is due to address the general assembly in the morning session with demonstrations planned for outside the compound from relatives of the Lockerbie bombing and other terrorist atrocities. (...)
But it is the appearance of Mr Gaddafi so soon after the release of Abdelbaset Ali Mohmed Al Megrahi - the man convicted of the 1988 bombing of Pan Am Flight 103 - that is likely to draw most attention in the US.
Of the 270 lives lost when the plane crashed after exploding over the Scottish town of Lockerbie, 189 were American.
The release of the terminally ill Megrahi on compassionate grounds by the Scottish government drew widespread condemnation in the US.
As such, the appearance of Mr Gaddafi in New York could not have come at a more sensitive time. (...)
He arrived yesterday ahead of the UN meeting and anticipated associated demonstrations.
Attending today’s action will be relatives of those killed in the Lockerbie bombing. They will march on the UN compound alongside others affected by terrorist atrocities, including loved ones of those killed in the September 11 attacks in New York.
Frank Duggan, president of the Victims of Pan Am 103, said: “We are planning a massive demonstration in New York City when Gaddafi will arrive here - objecting to the presence of the Libyan leader on the US soil.
“I personally understand the motives of the US government in trying to bring Libya into the community of peaceful nations, but that does not mean that we have to roll out the red carpet for him to strut on.
“He delights in rubbing salt into our wounds, and he has already misled the UN as to his intentions.”
Tuesday, 22 September 2009
MSPs to hold bomber release probe
[This is the headline over a report on the BBC News website. It reads in part:]
The Scottish Parliament's justice committee has announced it will hold a short inquiry into the release of the Lockerbie bomber Abdelbaset al-Megrahi.
Scotland's Justice Secretary Kenny MacAskill released Megrahi, who is terminally ill, on compassionate grounds last month.
Opposition parties in the Scottish Parliament later united in a vote to condemn the SNP minister's move.
Now the justice committee has voted by a majority to probe the decision. (...)
The decision to release him sparked outrage in the US, where many of the victims were from.
Tory justice spokesman and justice committee convener, Bill Aitken, said: "This inquiry will be an opportunity for the Scottish Government to allay the concerns which many hold regarding the processes followed in the decision to release the Lockerbie bomber - irrespective of the rights and wrongs of the decision itself."
The Scottish Parliament's justice committee has announced it will hold a short inquiry into the release of the Lockerbie bomber Abdelbaset al-Megrahi.
Scotland's Justice Secretary Kenny MacAskill released Megrahi, who is terminally ill, on compassionate grounds last month.
Opposition parties in the Scottish Parliament later united in a vote to condemn the SNP minister's move.
Now the justice committee has voted by a majority to probe the decision. (...)
The decision to release him sparked outrage in the US, where many of the victims were from.
Tory justice spokesman and justice committee convener, Bill Aitken, said: "This inquiry will be an opportunity for the Scottish Government to allay the concerns which many hold regarding the processes followed in the decision to release the Lockerbie bomber - irrespective of the rights and wrongs of the decision itself."
US State Department briefing
[What follows is an excerpt from yesterday's US State Department daily press briefing by Department spokesman Ian Kelly.]
QUESTION: Glenn Campbell from the BBC. Has the United States forgiven the Scottish Government for releasing the man convicted of the Lockerbie bombing?
MR. KELLY: Well, our views on that issue, of course, are extremely well known. Again, we’ve passed these views both in private channels and in – also publicly. I think just about everything that we have said to the governments in London and Edinburgh through diplomatic channels have mirrored what we’ve said publicly. I don’t think it’s a matter of forgiving anybody. I think all along, we recognized that Mr. MacAskill had the right to do what he did. We objected extremely strenuously at many different levels and in many different channels to the release of Mr. Megrahi.
I think at this point, we’re looking to move on. We’re looking to continue the very important cooperation that we have with the United Kingdom and with Scotland. We have very deep and abiding ties with Scotland. These ties are cultural. They’re – we share political values. We have many family ties. My own father, as you probably can guess from my first name, is Scottish. He was born in Edinburgh. So we’re looking to move on. We’re looking for a – to continue this important relationship that we have with Scotland.
QUESTION: Is there any diplomatic price for the Scottish Government to pay?
MR. KELLY: We are very close allies, and I think allies – I don’t think we’re looking to punish anybody, per se. There’s no tit-for-tat here.
[Today's edition of the Financial Times runs an interview with Louis Susman, the new US ambassador to the UK, in which he expresses his views about the Megrahi release and the "special relationship".]
QUESTION: Glenn Campbell from the BBC. Has the United States forgiven the Scottish Government for releasing the man convicted of the Lockerbie bombing?
MR. KELLY: Well, our views on that issue, of course, are extremely well known. Again, we’ve passed these views both in private channels and in – also publicly. I think just about everything that we have said to the governments in London and Edinburgh through diplomatic channels have mirrored what we’ve said publicly. I don’t think it’s a matter of forgiving anybody. I think all along, we recognized that Mr. MacAskill had the right to do what he did. We objected extremely strenuously at many different levels and in many different channels to the release of Mr. Megrahi.
I think at this point, we’re looking to move on. We’re looking to continue the very important cooperation that we have with the United Kingdom and with Scotland. We have very deep and abiding ties with Scotland. These ties are cultural. They’re – we share political values. We have many family ties. My own father, as you probably can guess from my first name, is Scottish. He was born in Edinburgh. So we’re looking to move on. We’re looking for a – to continue this important relationship that we have with Scotland.
QUESTION: Is there any diplomatic price for the Scottish Government to pay?
MR. KELLY: We are very close allies, and I think allies – I don’t think we’re looking to punish anybody, per se. There’s no tit-for-tat here.
[Today's edition of the Financial Times runs an interview with Louis Susman, the new US ambassador to the UK, in which he expresses his views about the Megrahi release and the "special relationship".]
Monday, 21 September 2009
The Scotsman legal debate: Megrahi
With the decision to release the Lockerbie bomber still reverberating around the Scottish legal profession, it was unsurprising that the topic was first on the agenda for the annual Scotsman live legal debate held on Wednesday in Edinburgh. (...)
Marshalled by journalist and commentator Ian Fraser, the panellists were: Jonathan Mitchell QC, a member of the Faculty of Advocates' council; Ian Smart, the president of the Law Society of Scotland; Catriona Headley, the secretary of the Scottish Young Lawyers Association and Lorne Crerar, the chairman of Harper Macleod.
Has the Megrahi decision damaged the Scottish justice system?
Jonathan Mitchell: I don't believe anyone, a couple of years from now, in Scotland or anywhere else is going to have this near the front of their minds. Enough murderers have been freed in Scotland, England and elsewhere in Europe in recent years without anybody paying much attention. We freed 78 murderers in Northern Ireland following the Good Friday Agreement.
There might be an issue as to whether we should change policy in the future. We should perhaps follow the example of other countries and say ministers should not take the decision on compassionate release – this is something for judges, or the parole board. The parole board advised that Megrahi should be released, the governor of the prison advised he should be released, the medical advice was that he was terminally ill. I don't see how you can turn round and say: "you're just the parole board, you're just the governor of the prison, you're only doctors, I am an elected politician responsible to the electorate and I say you're wrong". That would be outrageous.
Ian Smart: All civilised legal systems have compassionate release. The minister made a decision based on the evidence that was presented to him and the law of Scotland. The theory that suggests he, Peter Mandelson, Colonel Gaddafi's son and others formed a conspiracy is just absurd. No sane person thinks he made the decision other than in good faith. We have to move on.
Lorne Crerar: I was very proud we dealt with it the way we did and that we are seen as being a nation of compassion rather than a nation of cruelty. I see it as being a positive that the Scottish legal system is seen as being robust and independent and has compassion as a part of what it does.
Catriona Headley: The problem with the Megrahi decision is it appears to have been made by a politician for political reasons. If you look at the guidance that was available and the legislation followed by the justice minister, I don't think there was any other option but to release Megrahi.
[From the report on the debate in today's edition of The Scotsman.]
Marshalled by journalist and commentator Ian Fraser, the panellists were: Jonathan Mitchell QC, a member of the Faculty of Advocates' council; Ian Smart, the president of the Law Society of Scotland; Catriona Headley, the secretary of the Scottish Young Lawyers Association and Lorne Crerar, the chairman of Harper Macleod.
Has the Megrahi decision damaged the Scottish justice system?
Jonathan Mitchell: I don't believe anyone, a couple of years from now, in Scotland or anywhere else is going to have this near the front of their minds. Enough murderers have been freed in Scotland, England and elsewhere in Europe in recent years without anybody paying much attention. We freed 78 murderers in Northern Ireland following the Good Friday Agreement.
There might be an issue as to whether we should change policy in the future. We should perhaps follow the example of other countries and say ministers should not take the decision on compassionate release – this is something for judges, or the parole board. The parole board advised that Megrahi should be released, the governor of the prison advised he should be released, the medical advice was that he was terminally ill. I don't see how you can turn round and say: "you're just the parole board, you're just the governor of the prison, you're only doctors, I am an elected politician responsible to the electorate and I say you're wrong". That would be outrageous.
Ian Smart: All civilised legal systems have compassionate release. The minister made a decision based on the evidence that was presented to him and the law of Scotland. The theory that suggests he, Peter Mandelson, Colonel Gaddafi's son and others formed a conspiracy is just absurd. No sane person thinks he made the decision other than in good faith. We have to move on.
Lorne Crerar: I was very proud we dealt with it the way we did and that we are seen as being a nation of compassion rather than a nation of cruelty. I see it as being a positive that the Scottish legal system is seen as being robust and independent and has compassion as a part of what it does.
Catriona Headley: The problem with the Megrahi decision is it appears to have been made by a politician for political reasons. If you look at the guidance that was available and the legislation followed by the justice minister, I don't think there was any other option but to release Megrahi.
[From the report on the debate in today's edition of The Scotsman.]
Over the top on Abdelbaset al-Megrahi's dossier
[This is the heading over an article by Marcel Berlins on The Guardian's Comment is free website. It reads as follows:]
Scotland's chief law officer, lord advocate Elish Angiolini, was wrong to "deplore the efforts by Abdelbaset al-Megrahi to challenge his conviction through selective publication of his view of the evidence in the media".
A 298-page dossier has been published online, aimed at contesting Megrahi's conviction for the Lockerbie bombing. With further documents to be made public soon, the online material will amount to what would have been put to the Scottish court of appeal later this year had Megrahi not been returned to Libya on compassionate grounds.
Why is the lord advocate so exercised? "The only appropriate forum for the determination of guilt or innocence is the criminal court," she says. Yes, of course – but that's never been a barrier to campaigns over purported miscarriages of justice before. Indeed, almost all the famous cases were first brought to public attention not in a courtroom but by way of a media drive.
It is true, as Angiolini points out, that Megrahi voluntarily abandoned his appeal. But he did so because he and his advisers believed that it would improve his chances of release. I do not know whether or not his actions had that effect, but it was always made clear that withdrawing the appeal was not to be taken as a lack of confidence, or an admission of guilt.
Angiolini reminds us that Megrahi was convicted unanimously by three senior Scottish judges, with the conviction unanimously upheld on appeal by five judges. She fails to add that the second appeal had been initiated by the independent Scottish Criminal Cases Review Commission (SCCRC), which had referred the case back to the court of appeal in 2007 because it had doubts about the safety of Megrahi's conviction. The SCCRC does not reach such decisions lightly, and two-thirds of the cases it has referred to the court over the past few years have resulted in successful appeals.
In particular, the second appeal claimed that judges in the original trial had made errors in the way they treated the evidence of a Maltese shopkeeper, Tony Gauci – evidence that was crucial in linking Megrahi to the bombing. Gauci claimed to have identified Megrahi as the purchaser of clothing later found in the suitcase containing the Lockerbie bomb. That identification is at the centre of the doubt raised by the SCCRC.
Angiolini says that the crown was "ready, willing and able" to fight the appeal. I'm sure that's so, and I'm sure she was confident of winning, but that doesn't explain or justify her inflated reaction to Megrahi's online dossier.
We will probably never know for sure whether Megrahi planted the bomb on Pan Am flight 103 more than 20 years ago. But it would have been more dignified and more effective had the lord advocate merely emphasised the one-sided nature of Megrahi's online campaign, rather than giving the impression that she would have preferred the opposing argument to have been banned altogether.
[Unlike Mr Berlins, I am not sure that the Lord Advocate was confident of winning the appeal. The relief in the Crown Office when Mr Megrahi abandoned it was palpable and undisguised. And the later stages of the appeal would have shone a light on prosecution failure to make available to the defence material that could have assisted them, which would have been embarrassing, to say the least, to the Crown Office.]
Scotland's chief law officer, lord advocate Elish Angiolini, was wrong to "deplore the efforts by Abdelbaset al-Megrahi to challenge his conviction through selective publication of his view of the evidence in the media".
A 298-page dossier has been published online, aimed at contesting Megrahi's conviction for the Lockerbie bombing. With further documents to be made public soon, the online material will amount to what would have been put to the Scottish court of appeal later this year had Megrahi not been returned to Libya on compassionate grounds.
Why is the lord advocate so exercised? "The only appropriate forum for the determination of guilt or innocence is the criminal court," she says. Yes, of course – but that's never been a barrier to campaigns over purported miscarriages of justice before. Indeed, almost all the famous cases were first brought to public attention not in a courtroom but by way of a media drive.
It is true, as Angiolini points out, that Megrahi voluntarily abandoned his appeal. But he did so because he and his advisers believed that it would improve his chances of release. I do not know whether or not his actions had that effect, but it was always made clear that withdrawing the appeal was not to be taken as a lack of confidence, or an admission of guilt.
Angiolini reminds us that Megrahi was convicted unanimously by three senior Scottish judges, with the conviction unanimously upheld on appeal by five judges. She fails to add that the second appeal had been initiated by the independent Scottish Criminal Cases Review Commission (SCCRC), which had referred the case back to the court of appeal in 2007 because it had doubts about the safety of Megrahi's conviction. The SCCRC does not reach such decisions lightly, and two-thirds of the cases it has referred to the court over the past few years have resulted in successful appeals.
In particular, the second appeal claimed that judges in the original trial had made errors in the way they treated the evidence of a Maltese shopkeeper, Tony Gauci – evidence that was crucial in linking Megrahi to the bombing. Gauci claimed to have identified Megrahi as the purchaser of clothing later found in the suitcase containing the Lockerbie bomb. That identification is at the centre of the doubt raised by the SCCRC.
Angiolini says that the crown was "ready, willing and able" to fight the appeal. I'm sure that's so, and I'm sure she was confident of winning, but that doesn't explain or justify her inflated reaction to Megrahi's online dossier.
We will probably never know for sure whether Megrahi planted the bomb on Pan Am flight 103 more than 20 years ago. But it would have been more dignified and more effective had the lord advocate merely emphasised the one-sided nature of Megrahi's online campaign, rather than giving the impression that she would have preferred the opposing argument to have been banned altogether.
[Unlike Mr Berlins, I am not sure that the Lord Advocate was confident of winning the appeal. The relief in the Crown Office when Mr Megrahi abandoned it was palpable and undisguised. And the later stages of the appeal would have shone a light on prosecution failure to make available to the defence material that could have assisted them, which would have been embarrassing, to say the least, to the Crown Office.]
Sunday, 20 September 2009
Legal doubt over Megrahi's guilt
[This is the headline over an article by Jason Allardyce in today's edition of The Sunday Times. The following are excerpts.]
The legal body charged with assessing the guilt of the man convicted of the Lockerbie bombing concluded his conviction may be unsafe because it relied on evidence provided by a discredited witness who had been paid by American intelligence services.
A report by the Scottish Criminal Cases Review Commission (SCCRC), due to be published later this year, is said to suggest that the testimony of Abdul Majid Giaka, a paid informer for the Central Intelligence Agency (CIA) should have been discounted by judges at Abdelbaset Ali Mohmed al-Megrahi’s trial in the Hague in 2001. [Note by RB: This is a reference to the SCCRC's full 2007 report, only a brief summary of which has so far been published.]
Giaka testified that Megrahi was an agent for the Jamahiriya Security Organisation (JSO), the Libyan intelligence service. He claimed to have seen Megrahi carrying a suitcase containing the bomb used to blow up Pan Am Flight 103, which exploded over Lockerbie in December 1988 killing 270 people, and to have discussed the plot with him.
However, declassified documents released during the trial revealed that American intelligence officials doubted Giaka’s claims to be connected to the highest level of Libyan intelligence and threatened to stop paying him $1,000 (£612) a month unless he provided better information.
The informant claimed that he worked in the secret files section of the JSO, but he was a garage mechanic. Giaka’s credibility was further undermined when he claimed to be related to royalty and that the Libyan leader was a freemason.
The defence alleged Giaka had been paid £1.6m by the American government to help secure a guilty verdict against Megrahi and his co-accused Lameen Fhima.
The judges at Camp Zeist in The Hague discounted most of Giaka’s testimony on the grounds that his co-operation with the American authorities was “largely motivated by financial considerations”. However, they accepted his testimony that Megrahi was a member of the JSO, a suggestion the accused denied. (...)
While the commission’s concerns about the reliability of Tony Gauci, a key Crown witness at Megrahi’s trial, have been made public, its doubts about Giaka’s testimony were kept secret.
A source who has seen the SCCRC document, told The Sunday Times: “The report says there was no sufficient explanation made of why the court discounted him as a credible witness yet seemed to accept elements within his evidence which asserted that Megrahi was a senior member of the Libyan intelligence service and was involved in the wider conspiracy.
“There was no actual evidence to support that, but the court accepted it. It undermined [sic; presumably "underlined" or "supported" is what is meant] the Crown’s narrative of the offence — that Megrahi was acting on behalf of Libyan intelligence. That information came from Giaka and all his other evidence was utterly discredited — yet they accepted that element.” (...)
At the trial, Megrahi’s defence team denied their client was employed by the JSO and dismissed Giaka’s testimony as “pure fantasy”.
The SCCRC’s concerns about Giaka’s testimony are shared by Michael Scharf, who was the counsel to the US counterterrorism bureau when Megrahi and Fhima were indicted for the bombing. He believes that the case should never have gone to trial.
He claimed the CIA had assured State Department officials that Giaka was “the perfect witness” and there was an “airtight” case against Megrahi and Fhima, who was cleared. “This is a bit like the OJ Simpson case, where the prosecution, together with the US government, tried to sex up the case and tried to hide the flaws,” he said.
“Unfortunately, because Megrahi’s appeal is not going to go forward we’ll never really know the full story.”
The commission’s full report, expected to be published in redacted (edited) form within weeks, is said to conclude that the failure to disclose a document thought to pertain to the bomb’s timer device, may have led to a miscarriage of justice. The evidence belonged to an unnamed foreign country, which refused to hand the material over. The British government at the time claimed public interest immunity against disclosure.
The legal body charged with assessing the guilt of the man convicted of the Lockerbie bombing concluded his conviction may be unsafe because it relied on evidence provided by a discredited witness who had been paid by American intelligence services.
A report by the Scottish Criminal Cases Review Commission (SCCRC), due to be published later this year, is said to suggest that the testimony of Abdul Majid Giaka, a paid informer for the Central Intelligence Agency (CIA) should have been discounted by judges at Abdelbaset Ali Mohmed al-Megrahi’s trial in the Hague in 2001. [Note by RB: This is a reference to the SCCRC's full 2007 report, only a brief summary of which has so far been published.]
Giaka testified that Megrahi was an agent for the Jamahiriya Security Organisation (JSO), the Libyan intelligence service. He claimed to have seen Megrahi carrying a suitcase containing the bomb used to blow up Pan Am Flight 103, which exploded over Lockerbie in December 1988 killing 270 people, and to have discussed the plot with him.
However, declassified documents released during the trial revealed that American intelligence officials doubted Giaka’s claims to be connected to the highest level of Libyan intelligence and threatened to stop paying him $1,000 (£612) a month unless he provided better information.
The informant claimed that he worked in the secret files section of the JSO, but he was a garage mechanic. Giaka’s credibility was further undermined when he claimed to be related to royalty and that the Libyan leader was a freemason.
The defence alleged Giaka had been paid £1.6m by the American government to help secure a guilty verdict against Megrahi and his co-accused Lameen Fhima.
The judges at Camp Zeist in The Hague discounted most of Giaka’s testimony on the grounds that his co-operation with the American authorities was “largely motivated by financial considerations”. However, they accepted his testimony that Megrahi was a member of the JSO, a suggestion the accused denied. (...)
While the commission’s concerns about the reliability of Tony Gauci, a key Crown witness at Megrahi’s trial, have been made public, its doubts about Giaka’s testimony were kept secret.
A source who has seen the SCCRC document, told The Sunday Times: “The report says there was no sufficient explanation made of why the court discounted him as a credible witness yet seemed to accept elements within his evidence which asserted that Megrahi was a senior member of the Libyan intelligence service and was involved in the wider conspiracy.
“There was no actual evidence to support that, but the court accepted it. It undermined [sic; presumably "underlined" or "supported" is what is meant] the Crown’s narrative of the offence — that Megrahi was acting on behalf of Libyan intelligence. That information came from Giaka and all his other evidence was utterly discredited — yet they accepted that element.” (...)
At the trial, Megrahi’s defence team denied their client was employed by the JSO and dismissed Giaka’s testimony as “pure fantasy”.
The SCCRC’s concerns about Giaka’s testimony are shared by Michael Scharf, who was the counsel to the US counterterrorism bureau when Megrahi and Fhima were indicted for the bombing. He believes that the case should never have gone to trial.
He claimed the CIA had assured State Department officials that Giaka was “the perfect witness” and there was an “airtight” case against Megrahi and Fhima, who was cleared. “This is a bit like the OJ Simpson case, where the prosecution, together with the US government, tried to sex up the case and tried to hide the flaws,” he said.
“Unfortunately, because Megrahi’s appeal is not going to go forward we’ll never really know the full story.”
The commission’s full report, expected to be published in redacted (edited) form within weeks, is said to conclude that the failure to disclose a document thought to pertain to the bomb’s timer device, may have led to a miscarriage of justice. The evidence belonged to an unnamed foreign country, which refused to hand the material over. The British government at the time claimed public interest immunity against disclosure.
Saturday, 19 September 2009
Could the UK Government have stopped repatriation?
Gordon Brown's government could have used its powers under the Scotland Act to challenge the decision to release the Lockerbie bomber, it has emerged.
Scottish Secretary Jim Murphy could have overruled Scottish justice secretary Kenny MacAskill and stopped the release of Abdelbaset Ali Mohmed al-Megrahi if the case was deemed to have breached "international obligations".
Senior diplomats have insisted there was a "clear understanding" between the UK and the US that Megrahi would serve out his sentence in Scotland. The US Justice and State departments have also insisted they had been given assurances in the 1990s that Megrahi would remain imprisoned under Scottish jurisdiction. (...)
The key part of the Scotland Act [section 58(1)] says: "If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Executive would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken."
[The above are extracts from an article by Gerry Peev in tomorrow's edition of Scotland on Sunday.
The contention that this provision of Scotland Act 1998 could have been used by the UK Government to block Abdelbaset Megrahi's repatriation is quite false. There may have been (indeed, there was) an undertaking by the UK (in a letter to the Secretary General of the United Nations) that anyone convicted in the Zeist trial would serve his sentence in Britain. But that is not what the Act means by an international obligation. What it does mean is a treaty obligation or an obligation directly imposed by a binding UN Security Council Resolution.
Moreover, while transfer of Mr Megrahi to serve the remainder of his sentence in Libya under the UK-Libya prisoner transfer agreement would have constituted a breach of this undertaking (which, as I have said, is not an "international obligation" within the meaning of the Act), this is not what Kenny MacAskill did. He rejected prisoner transfer precisely because he thought that this might breach an understanding legitimately held by the United States. What he did instead was to release Mr Megrahi from his sentence on compassionate grounds. The whole of the sentence that the law of Scotland required Mr Megrahi to serve was served in Scotland; and he was then released. There was accordingly no breach of the undertaking that the sentence would be served in Britain.]
Scottish Secretary Jim Murphy could have overruled Scottish justice secretary Kenny MacAskill and stopped the release of Abdelbaset Ali Mohmed al-Megrahi if the case was deemed to have breached "international obligations".
Senior diplomats have insisted there was a "clear understanding" between the UK and the US that Megrahi would serve out his sentence in Scotland. The US Justice and State departments have also insisted they had been given assurances in the 1990s that Megrahi would remain imprisoned under Scottish jurisdiction. (...)
The key part of the Scotland Act [section 58(1)] says: "If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Executive would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken."
[The above are extracts from an article by Gerry Peev in tomorrow's edition of Scotland on Sunday.
The contention that this provision of Scotland Act 1998 could have been used by the UK Government to block Abdelbaset Megrahi's repatriation is quite false. There may have been (indeed, there was) an undertaking by the UK (in a letter to the Secretary General of the United Nations) that anyone convicted in the Zeist trial would serve his sentence in Britain. But that is not what the Act means by an international obligation. What it does mean is a treaty obligation or an obligation directly imposed by a binding UN Security Council Resolution.
Moreover, while transfer of Mr Megrahi to serve the remainder of his sentence in Libya under the UK-Libya prisoner transfer agreement would have constituted a breach of this undertaking (which, as I have said, is not an "international obligation" within the meaning of the Act), this is not what Kenny MacAskill did. He rejected prisoner transfer precisely because he thought that this might breach an understanding legitimately held by the United States. What he did instead was to release Mr Megrahi from his sentence on compassionate grounds. The whole of the sentence that the law of Scotland required Mr Megrahi to serve was served in Scotland; and he was then released. There was accordingly no breach of the undertaking that the sentence would be served in Britain.]
Misguided Magnus
For all Abdul Baset Ali al-Megrahi's protests about the fragility of the prosecution case against him, there are three crucial facts to be borne in mind in reading these documents.
First, there appears to be nothing new here. It is evidence that has already been tested and rejected in the course of two court hearings: the original trial and his first appeal.
Secondly, what al-Megrahi presents is, inevitably, only one side of the case. It would have been challenged point by point in front of three High Court judges if his next appeal had gone ahead. By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected.
Third, if he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead.
Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison. Indeed, even at the original trial, he declined to give evidence in his own defence. That severely undermines his attempt to demonstrate that the prosecution case was flawed.
He now argues that the evidence against him was circumstantial and built on inference. But circumstantial evidence is very often at the heart of a prosecution case, and in Scottish law, an extra strand of corroborative proof is required before the evidence is accepted, and this would have happened in the al-Megrahi case.
What we are now asked instead to believe is that experienced judges and counsel ignored the custom and practice of Scottish law in the course of two full trials, and waved through unconvincing circumstantial evidence in order to ensure a conviction.
That is not only inherently improbable, it is insulting to the Scottish legal system and the lawyers who were involved in it. Only a full inquiry can unravel the truth, rather than the partial version we have been presented with here.
[The above is the full text of a comment in today's edition of The Times by Magnus Linklater, the paper's Scottish Editor. Apart from the very last sentence of the article, everything that Mr Linklater says is either factually incorrect or demonstrably misguided.
First: the released material has not been tested and rejected in two court hearings (the original trial and the first appeal). The released material advances the contentions that the evidence heard at the original trial was (a) insufficient in law to warrant a guilty verdict and (b) that no reasonable court, on that evidence, could have convicted Abdelbaset Megrahi. These contentions were not advanced at the Zeist trial or at the first appeal. As far as that appeal is concerned, the five judges stated 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."
Second: "By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected. (...) [I]f he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead. Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison."
Abdelbaset Megrahi was terminally ill. He had only a few months to live. His absolute priority was to return to his homeland to die surrounded by his family. Two ways of achieving this were available: prisoner transfer and compassionate release. The first required that there be no ongoing legal proceedings (like his second appeal); the second did not. Applications for repatriation were made under both mechanisms. Megrahi did not know which, if either, of the mechanisms would be successful, and the Cabinet Secretary for Justice said from the outset that there would be no nods or winks. In order to keep open the possibility of benefiting from prisoner transfer Megrahi had to abandon his appeal. At the end of the day, Kenny MacAskill opted for compassionate release. But until it actually happened, Megrahi did not, and could not, know that. The decision to abandon was effectively forced upon him.
And, of course, it would all have been unnecessary if the Crown Office, the Advocate General for Scotland (representing the UK Foreign Secretary in his public interest immunity claims) and the Appeal Court had not reduced the progress of the second appeal to a pace that would have shamed a self-respecting snail.
Third: Megrahi is not complaining that the evidence against him was circumstantial. Everyone accepts that a conviction can properly be obtained on evidence which is wholly circumstantial. The true point being raised is that for proof beyond reasonable doubt to be achieved in a case based wholly on circumstantial evidence, the incriminating inferences that the court is asked to draw from the evidence must be the only reasonable inferences open on that evidence. It is the failure of the Crown to reach (or even approach) this standard at the Zeist trial that Megrahi is complaining about.]
First, there appears to be nothing new here. It is evidence that has already been tested and rejected in the course of two court hearings: the original trial and his first appeal.
Secondly, what al-Megrahi presents is, inevitably, only one side of the case. It would have been challenged point by point in front of three High Court judges if his next appeal had gone ahead. By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected.
Third, if he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead.
Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison. Indeed, even at the original trial, he declined to give evidence in his own defence. That severely undermines his attempt to demonstrate that the prosecution case was flawed.
He now argues that the evidence against him was circumstantial and built on inference. But circumstantial evidence is very often at the heart of a prosecution case, and in Scottish law, an extra strand of corroborative proof is required before the evidence is accepted, and this would have happened in the al-Megrahi case.
What we are now asked instead to believe is that experienced judges and counsel ignored the custom and practice of Scottish law in the course of two full trials, and waved through unconvincing circumstantial evidence in order to ensure a conviction.
That is not only inherently improbable, it is insulting to the Scottish legal system and the lawyers who were involved in it. Only a full inquiry can unravel the truth, rather than the partial version we have been presented with here.
[The above is the full text of a comment in today's edition of The Times by Magnus Linklater, the paper's Scottish Editor. Apart from the very last sentence of the article, everything that Mr Linklater says is either factually incorrect or demonstrably misguided.
First: the released material has not been tested and rejected in two court hearings (the original trial and the first appeal). The released material advances the contentions that the evidence heard at the original trial was (a) insufficient in law to warrant a guilty verdict and (b) that no reasonable court, on that evidence, could have convicted Abdelbaset Megrahi. These contentions were not advanced at the Zeist trial or at the first appeal. As far as that appeal is concerned, the five judges stated 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."
Second: "By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected. (...) [I]f he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead. Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison."
Abdelbaset Megrahi was terminally ill. He had only a few months to live. His absolute priority was to return to his homeland to die surrounded by his family. Two ways of achieving this were available: prisoner transfer and compassionate release. The first required that there be no ongoing legal proceedings (like his second appeal); the second did not. Applications for repatriation were made under both mechanisms. Megrahi did not know which, if either, of the mechanisms would be successful, and the Cabinet Secretary for Justice said from the outset that there would be no nods or winks. In order to keep open the possibility of benefiting from prisoner transfer Megrahi had to abandon his appeal. At the end of the day, Kenny MacAskill opted for compassionate release. But until it actually happened, Megrahi did not, and could not, know that. The decision to abandon was effectively forced upon him.
And, of course, it would all have been unnecessary if the Crown Office, the Advocate General for Scotland (representing the UK Foreign Secretary in his public interest immunity claims) and the Appeal Court had not reduced the progress of the second appeal to a pace that would have shamed a self-respecting snail.
Third: Megrahi is not complaining that the evidence against him was circumstantial. Everyone accepts that a conviction can properly be obtained on evidence which is wholly circumstantial. The true point being raised is that for proof beyond reasonable doubt to be achieved in a case based wholly on circumstantial evidence, the incriminating inferences that the court is asked to draw from the evidence must be the only reasonable inferences open on that evidence. It is the failure of the Crown to reach (or even approach) this standard at the Zeist trial that Megrahi is complaining about.]
Friday, 18 September 2009
Press release regarding publication of appeal documents
Mr Abdelbaset Ali Mohmed Al Megrahi, who has returned to his homeland, Libya, today commences the release of information which he hopes will establish his innocence. Through the website megrahimystory.net he will release details of Grounds of Appeal 1 and 2 of his challenge to the conviction for involvement in the Lockerbie bombing.
Grounds 1 and 2 dealt with the challenge to the conviction on the grounds of legal sufficiency and reasonableness.
The detailed written submissions lodged by Mr Megrahi’s defence team insupport of the grounds, also published today, break down the various steps in the reasoning of the Trial Court it said led to the conclusion that it was satisfied beyond a reasonable doubt of the guilt of Mr Megrahi.
In publishing this material Mr Megrahi made the following statement:
“I have returned to Tripoli with my unjust conviction still in place. As a resultof the abandonment of my appeal I have been deprived of the opportunity to clear my name through the formal appeal process. I have vowed to continue my attempts to clear my name. I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence.
Through my website I have published the material which featured in the first full hearing of my appeal namely the challenges under Grounds of Appeal 1 and 2 to the legal sufficiency and reasonableness of the Court’s findings. I hope that this can assist in the understanding of my case, especially for those who have been most profoundly affected by it. As can be seen from the documents released today some of the challenges mounted before the Court are supported by the Scottish Criminal Cases Review Commission.
Argument was heard upon these challenges but unfortunately the Court was not, by the time of my abandonment, in a position to provide its opinion. Thus, there is no Court judgement or adjudication upon these challenges”.
Mr Megrahi hopes to continue to publish details of his appeal challenge in the course of the forthcoming weeks.
[The above is the text of a press release issued at noon today by Abdelbaset Megrahi's Scottish solicitor, Tony Kelly. The Scotsman's report on the matter can be read here and The Times's here. The Times of Malta website contains a report focussing on what the documents have to say about the identification evidence of Tony Gauci and the evidence relating to ingestion of the bomb at Malta's Luqa Airport.
The Lord Advocate has issued a press release commenting on this development it reads:
'The Lord Advocate, the Right Honourable Elish Angiolini QC, has criticised the publication of selected material relating to his appeal by Abdelbaset Ali Mohmed Al Megrahi, the convicted Lockerbie bomber.
'Mrs Angiolini said:
'“I deplore the efforts by Abdelbaset Megrahi to challenge his conviction through selective publication of his view of the evidence in the media after he has abandoned his second appeal against conviction.
'“The only appropriate forum for the determination of guilt or innocence is the criminal court. Mr Megrahi was convicted unanimously by three senior judges following trial and his conviction was upheld unanimously by five judges, in an Appeal Court presided over by the Lord Justice General, Scotland’s most senior judge. Mr Megrahi remains convicted of the worst terrorist atrocity in UK history .
'“The Crown has supported the conviction vigorously and stood ready, willing and able to do so throughout the appeal process which Mr Megrahi abandoned.
'“As he and his legal team have made clear, the decision to discontinue the appeal proceedings was taken voluntarily by Mr Megrahi himself. He did not require to abandon his appeal. Having done so, he now seeks to retry his case in the media and criticise the evidence against him. Mr Megrahi exercised his right of silence throughout the judicial proceedings.
'“The only evidence that the trial court ever heard from Mr Megrahi was in the television interview which he gave, after publication of the criminal charges in 1991, to the veteran journalist Pierre Salinger. In that interview, which was played to the trial court by the prosecution, Mr Salinger put to him the detailed allegations and his responses on many important matters were disproved and discredited in the trial.”'
This is a bit rich coming from the person whose office was responsible for the lion's share of the outrageous delay in getting Mr Megrahi's second appeal to the stage of argument. This had the consequence that, given his terminal illness, there was no chance of his surviving until its conclusion and also ultimately led to his regrettable, but entirely understandable, decision to abandon the appeal to maximise his chances of repatriation by keeping open the prisoner transfer option. At the end of the day the Cabinet Secretary for Justice chose another option -- compassionate release -- but Megrahi had no way of knowing that that was going to happen.
Here is what I wrote on this blog almost a year ago, on 26 October 2008:
"More than sixteen months have passed since then. More than thirteen months have passed since the first procedural hearing in the new appeal was held. More than ten months have passed since the appellant’s full written grounds of appeal were lodged with the court. Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?
"The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze is not in the book, have been asking the court to rewrite the book to insert it). These tactics include, to name but a few, raising difficulties about allowing the appellant access to productions used at the original trial; seeking to overturn previous appeal court decisions on the scope of the appeal in SCCRC references; and claiming public interest immunity on “national security” grounds in respect of documents which have been in the hands of the Crown for more than twelve years and which have been seen by the SCCRC. The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done little, if anything, meaningful to curb it."]
Grounds 1 and 2 dealt with the challenge to the conviction on the grounds of legal sufficiency and reasonableness.
The detailed written submissions lodged by Mr Megrahi’s defence team insupport of the grounds, also published today, break down the various steps in the reasoning of the Trial Court it said led to the conclusion that it was satisfied beyond a reasonable doubt of the guilt of Mr Megrahi.
In publishing this material Mr Megrahi made the following statement:
“I have returned to Tripoli with my unjust conviction still in place. As a resultof the abandonment of my appeal I have been deprived of the opportunity to clear my name through the formal appeal process. I have vowed to continue my attempts to clear my name. I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence.
Through my website I have published the material which featured in the first full hearing of my appeal namely the challenges under Grounds of Appeal 1 and 2 to the legal sufficiency and reasonableness of the Court’s findings. I hope that this can assist in the understanding of my case, especially for those who have been most profoundly affected by it. As can be seen from the documents released today some of the challenges mounted before the Court are supported by the Scottish Criminal Cases Review Commission.
Argument was heard upon these challenges but unfortunately the Court was not, by the time of my abandonment, in a position to provide its opinion. Thus, there is no Court judgement or adjudication upon these challenges”.
Mr Megrahi hopes to continue to publish details of his appeal challenge in the course of the forthcoming weeks.
[The above is the text of a press release issued at noon today by Abdelbaset Megrahi's Scottish solicitor, Tony Kelly. The Scotsman's report on the matter can be read here and The Times's here. The Times of Malta website contains a report focussing on what the documents have to say about the identification evidence of Tony Gauci and the evidence relating to ingestion of the bomb at Malta's Luqa Airport.
The Lord Advocate has issued a press release commenting on this development it reads:
'The Lord Advocate, the Right Honourable Elish Angiolini QC, has criticised the publication of selected material relating to his appeal by Abdelbaset Ali Mohmed Al Megrahi, the convicted Lockerbie bomber.
'Mrs Angiolini said:
'“I deplore the efforts by Abdelbaset Megrahi to challenge his conviction through selective publication of his view of the evidence in the media after he has abandoned his second appeal against conviction.
'“The only appropriate forum for the determination of guilt or innocence is the criminal court. Mr Megrahi was convicted unanimously by three senior judges following trial and his conviction was upheld unanimously by five judges, in an Appeal Court presided over by the Lord Justice General, Scotland’s most senior judge. Mr Megrahi remains convicted of the worst terrorist atrocity in UK history .
'“The Crown has supported the conviction vigorously and stood ready, willing and able to do so throughout the appeal process which Mr Megrahi abandoned.
'“As he and his legal team have made clear, the decision to discontinue the appeal proceedings was taken voluntarily by Mr Megrahi himself. He did not require to abandon his appeal. Having done so, he now seeks to retry his case in the media and criticise the evidence against him. Mr Megrahi exercised his right of silence throughout the judicial proceedings.
'“The only evidence that the trial court ever heard from Mr Megrahi was in the television interview which he gave, after publication of the criminal charges in 1991, to the veteran journalist Pierre Salinger. In that interview, which was played to the trial court by the prosecution, Mr Salinger put to him the detailed allegations and his responses on many important matters were disproved and discredited in the trial.”'
This is a bit rich coming from the person whose office was responsible for the lion's share of the outrageous delay in getting Mr Megrahi's second appeal to the stage of argument. This had the consequence that, given his terminal illness, there was no chance of his surviving until its conclusion and also ultimately led to his regrettable, but entirely understandable, decision to abandon the appeal to maximise his chances of repatriation by keeping open the prisoner transfer option. At the end of the day the Cabinet Secretary for Justice chose another option -- compassionate release -- but Megrahi had no way of knowing that that was going to happen.
Here is what I wrote on this blog almost a year ago, on 26 October 2008:
"More than sixteen months have passed since then. More than thirteen months have passed since the first procedural hearing in the new appeal was held. More than ten months have passed since the appellant’s full written grounds of appeal were lodged with the court. Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?
"The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze is not in the book, have been asking the court to rewrite the book to insert it). These tactics include, to name but a few, raising difficulties about allowing the appellant access to productions used at the original trial; seeking to overturn previous appeal court decisions on the scope of the appeal in SCCRC references; and claiming public interest immunity on “national security” grounds in respect of documents which have been in the hands of the Crown for more than twelve years and which have been seen by the SCCRC. The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done little, if anything, meaningful to curb it."]
Inquiry would clear up Megrahi muddle
[This is the heading over a letter in today's edition of The Scotsman from Benedict Birnberg. It reads in part:]
That many families of the victims of the Lockerbie outrage are distraught at a decision [the compassionate release of Megrahi] that denies them even the consolation of a sacrificial lamb is understandable. But the hysteria, as much in the UK as in the US, has masked the decision of the Scottish Criminal Cases Review Commission in June 2007, following its three-year investigation, to refer the conviction to the High Court. It bears emphasising that its statement of referral extended to more than 800 pages with 13 volumes of appendices and that in its press release it described the investigation as "the longest, most expensive and singularly most complex" in its history. And it concluded " … based upon our lengthy investigations, the new evidence we have found and other evidence which was not before the trial court, that the applicant may have suffered a miscarriage of justice".
Yet, with scant exceptions, comment in the UK media generally, although much less so in Scotland, has ignored the reference or anything that casts doubt on Megrahi's guilt and has focused rather on such matters as his reception back home and the ostensible realpolitik behind his release and repatriation. The assumption has been that, because Megrahi withdrew his appeal before his release while maintaining his innocence, the court cannot now consider the case.
I do not know whether the appeal would succeed. All I know is that the official body charged with investigating his case formed the view, after extensive consideration, that an innocent man may have been convicted.
As a solicitor whose firm has been in the vanguard in handling UK miscarriage of justice cases over the past 40 years, I believe justice cannot be done or be seen to be done unless there is a judicial trial.
To this end I have written to justice secretary Kenny MacAskill to question the circumstances in which Megrahi withdrew his appeal and I have said that, if indeed the court is functus officio (has discharged its duties], the Scottish Government ought, in the interests of the fair administration of justice in Scotland, to establish an independent public judicial inquiry to ensure that the case painstakingly prepared by the commission does not go by default but receives full, fair and dispassionate consideration.
That many families of the victims of the Lockerbie outrage are distraught at a decision [the compassionate release of Megrahi] that denies them even the consolation of a sacrificial lamb is understandable. But the hysteria, as much in the UK as in the US, has masked the decision of the Scottish Criminal Cases Review Commission in June 2007, following its three-year investigation, to refer the conviction to the High Court. It bears emphasising that its statement of referral extended to more than 800 pages with 13 volumes of appendices and that in its press release it described the investigation as "the longest, most expensive and singularly most complex" in its history. And it concluded " … based upon our lengthy investigations, the new evidence we have found and other evidence which was not before the trial court, that the applicant may have suffered a miscarriage of justice".
Yet, with scant exceptions, comment in the UK media generally, although much less so in Scotland, has ignored the reference or anything that casts doubt on Megrahi's guilt and has focused rather on such matters as his reception back home and the ostensible realpolitik behind his release and repatriation. The assumption has been that, because Megrahi withdrew his appeal before his release while maintaining his innocence, the court cannot now consider the case.
I do not know whether the appeal would succeed. All I know is that the official body charged with investigating his case formed the view, after extensive consideration, that an innocent man may have been convicted.
As a solicitor whose firm has been in the vanguard in handling UK miscarriage of justice cases over the past 40 years, I believe justice cannot be done or be seen to be done unless there is a judicial trial.
To this end I have written to justice secretary Kenny MacAskill to question the circumstances in which Megrahi withdrew his appeal and I have said that, if indeed the court is functus officio (has discharged its duties], the Scottish Government ought, in the interests of the fair administration of justice in Scotland, to establish an independent public judicial inquiry to ensure that the case painstakingly prepared by the commission does not go by default but receives full, fair and dispassionate consideration.
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