[On Tuesday 9 November, the Scottish Parliament's Public Petitions Committee will hold a hearing on the Justice for Megrahi petition. Dr Jim Swire, Mr Iain McKie, Mr Robert Forrester and I have been invited to attend to make a brief presentation and to respond to MSPs' questions.
The Scottish Sunday Express today runs an article on the forthcoming committee hearing. It reads in part:]
Shocking unseen evidence from the Lockerbie bomber’s abandoned appeal is to be presented to Holyrood this week in a bid to prove his innocence.
Campaigners including Professor Robert Black and Dr Jim Swire will use the documents to try and force a Scottish Government inquiry into Abdelbaset Ali Mohmed al-Megrahi’s conviction.
Dr Swire, whose daughter Flora was among the 270 killed in the 1988 atrocity, will introduce previously unseen diaries which could cast doubt on one of the trial’s key witnesses and show he was offered cash for evidence. [RB: The journalist is in error. This material will not be introduced at the committee hearing, which will be concerned simply with what action, if any, should be taken on the petition, NOT with the merits of Abdelbaset Megrahi's conviction. That would be a matter for any inquiry set up as a result of the petition.]
Written by a Scottish detective they reveal police knew from an early stage that Maltese shopkeeper Tony Gauci, whose identification of the bomber was pivotal in the conviction, had been promised an “unlimited” reward by the US.
Dr Swire, who will deliver a plea to ministers on Tuesday, said: “The diaries kept by Detective Inspector Harry Bell show he knew when he was interviewing Tony Gauci he was getting excited about the possibility of a reward.
“This information alone would ordinarily be enough to overturn the conviction. Both Justice Secretary Kenny MacAskill and First Minister Alex Salmond have made public statements saying they have full confidence in the verdict against Megrahi.
“That is an extraordinary situation given the Scottish Criminal Cases Review Commission has ruled there may have been a miscarriage of justice.” He added: “How can politicians say they have total faith in the verdict when the one organisation that Scotland possesses to look into these matters says otherwise? It is an untenable position.”
DI Bell was the Dumfries and Galloway detective who traced a scrap of material which had been wrapped around the bomb to Gauci’s clothes shop in Malta. When Megrahi was finally brought to trial, Gauci identified the Libyan in court as the man who had bought the clothing.
It has since emerged that Gauci received $2million and his brother, Paul, received $1million from the US Department of Justice. DI Bell kept a diary during the investigation, although this was not presented to the three judges at the Lockerbie trial in 2001.
On September 28, 1989, he recorded that the FBI had discussed with the Scottish police an offer of unlimited money to Gauci, with $10,000 being available immediately. On March 5, 1990, he recorded a meeting with the FBI and a Maltese detective to discuss “reward money as a last resort”.
And on January 8, 1992, he said Dana Biehl from the US Department of Justice had offered a $2million reward to Libyan double agent Majid Giaka, who also gave evidence against Megrahi. DI Bell wrote: “He was immediately advised of our concern regarding this. I also clarified with him about the Gauci reward and the response was only if he gave evidence.”
It contradicts police sources who have always insisted the rewards were only “engineered” after the trial to help the Gaucis leave Malta. (...)
At Tuesday’s Holyrood hearing, MSPs will consider for the first time a 1,646-signature petition calling for an independent Lockerbie inquiry. Previously, ministers have maintained such a wide-ranging probe could only be called by Westminster or the United Nations. However, Prof Black, Professor Emeritus of Scots Law at the University of Edinburgh, said: “The reasons the Scottish Government has given for not holding an inquiry are simply not correct.”
Sunday, 7 November 2010
Saturday, 6 November 2010
Professor claims "Section 7 con trick"
[This is the headline over a news item published on the website of Scottish lawyers' magazine The Firm following on from a recent post on this blog. After reproducing the post, The Firm concludes its report as follows:]
John McGovern of the Glasgow Bar Association, solicitor Tony Kelly and the Miscarriages of Justice Organisation have all publicly condemned the measures, introduced without consultation or prior notice to MSPs, and enacted in a single day.
John McGovern of the Glasgow Bar Association, solicitor Tony Kelly and the Miscarriages of Justice Organisation have all publicly condemned the measures, introduced without consultation or prior notice to MSPs, and enacted in a single day.
Friday, 5 November 2010
The section 7 con trick
The Scottish Government has stated that section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (2010 asp 15) was required in order to stem the potential flood of appeals that might have arisen after the Cadder decision through successful applications to the Scottish Criminal Cases Review Commission. This is not so. Section 7 goes much further than was necessary to avoid the floodgates opening.
What follows are the relevant provisions of section 7 as enacted by the Scottish Parliament, followed by a redraft showing all that would actually have been required.
What was enacted
In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings.
All that was required
In determining whether a miscarriage of justice may have occurred the Commission shall not take into account the circumstance that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him, provided that statement was made before 26 October 2010.
What was enacted
(1) Where the Commission has referred a case to the High Court under section 194B of this Act [the Criminal Procedure (Scotland) Act 1995] , the High Court may, despite section 194B(1), reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.
(2) In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.
All that was required
Where the Commission has referred a case to the High Court under section 194B of this Act, the High Court may, despite section 194B(1), reject the reference if the only reason given by the Commission for making the reference is that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him and that statement was made before 26 October 2010.
What follows are the relevant provisions of section 7 as enacted by the Scottish Parliament, followed by a redraft showing all that would actually have been required.
What was enacted
In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings.
All that was required
In determining whether a miscarriage of justice may have occurred the Commission shall not take into account the circumstance that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him, provided that statement was made before 26 October 2010.
What was enacted
(1) Where the Commission has referred a case to the High Court under section 194B of this Act [the Criminal Procedure (Scotland) Act 1995] , the High Court may, despite section 194B(1), reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.
(2) In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.
All that was required
Where the Commission has referred a case to the High Court under section 194B of this Act, the High Court may, despite section 194B(1), reject the reference if the only reason given by the Commission for making the reference is that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him and that statement was made before 26 October 2010.
Thursday, 4 November 2010
A commentary on the implications of the Cadder Case
This is the heading over a lengthy article by Robert Forrester (with a contribution from me) just published in the Speakers' Corner section of the Newsnet Scotland website. It discusses in particular the pernicious effects of certain provisions of the emergency legislation enacted by the Scottish Parliament in response to the Supreme Court's decision in the Cadder case. As Mr Forrester says:
"The al-Megrahi/Zeist case has profound ramifications for us all. It raises questions and symbolises issues which strike at the very heart of what we perceive our identity to be. In addressing this matter, JFM [the Justice for Megrahi campaign] seeks to ask exactly what justice is, what it means, whom it exists to serve and what role it ought to be playing in our society.
"If our institutions of government and the civil service persist in failing to look themselves in the mirror and make an honest attempt to take the bull by the horns, they will have only themselves to blame if, by their actions and inaction, the good name of Scottish justice is not redeemed and society further degenerates into a morass of cynicism."
"The al-Megrahi/Zeist case has profound ramifications for us all. It raises questions and symbolises issues which strike at the very heart of what we perceive our identity to be. In addressing this matter, JFM [the Justice for Megrahi campaign] seeks to ask exactly what justice is, what it means, whom it exists to serve and what role it ought to be playing in our society.
"If our institutions of government and the civil service persist in failing to look themselves in the mirror and make an honest attempt to take the bull by the horns, they will have only themselves to blame if, by their actions and inaction, the good name of Scottish justice is not redeemed and society further degenerates into a morass of cynicism."
Megrahi lawyer attacks Bill that axes safety net on right to appeal
[What follow are excerpts from an article in today's edition of The Times. It can be read -- but only, of course, by subscribers -- here.]
A leading human rights lawyer last night alleged that ministers had “pulled up the drawbridge” on victims of miscarriages of justice.
Tony Kelly, best known for representing Abdul Ali Baset al-Megrahi, the convicted Lockerbie bomber, said he was astonished by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill, passed by MSPs in an emergency session last Wednesday, which seemed designed to reduce the number of cases going to appeal. (...)
He said the new law would cut across the powers of the Scottish Criminal Cases Review Commission (SCCRC) to have potential miscarriages of justice reviewed and would discourage individuals from embarking on the appeal process.
“Loud and clear, the message from this legislation is ‘Don’t appeal’,” he said.
His intervention followed the remarks of Robert Black, Professor Emeritus of Law at the University of Edinburgh, who earlier claimed that new legislation created a conflict of interest within the High Court, which had effectively been handed the power to block any appeal.
Section 7 of the Bill deals with references from the SCCRC and says: “In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.”
Mr Kelly said that in relation to “certainty” and “finality”, the SCCRC had been established to deal with cases that were final and certain.
Between 1999 and 2010, it received a total of 1186 cases, completed the review of 1136 cases and referred 97 cases to the High Court for determination. Theoretically, under the terms of the new legislation, all 97 could simply have been turned away by the High Court.
Mr Kelly said: “The SCCRC, when it was set up, was viewed as a safety net, it examined cases that fell out with the normal run of evidence and admissibility. Those included miscarriages of justice — and Scotland has had its fair share of those.
“There was a specific exception from that finality clause — enabling the commission to exercise its discretion in certain cases. How can you possibly pull back from that?”
Mr Kelly, who is visiting professor in human rights law at the University of Strathclyde, added: “Most concerning, is the fact that the High Court has two separate powers.
“It can immediately bounce a reference from the Commission if it doesn’t consider it in the interests of justice, and, in determining any appeal, it has got to have regard to ‘finality’. Loud clear, the message is: ‘Don’t appeal’.” (...)
Mr Kelly said that he was at loss to explain why the Cadder ruling had been extended to the right to appeal.
“The only rationale I can see is that they are pulling up the drawbridge, making it more difficult for people to submit applications to the Commission and for the Commission to refer cases to the High Court,” he said.
“You can talk about individual cases, but this is a blanket, covering every single appellant. It will be much more difficult, there will be fewer appeals.”
John McManus, project officer for Miscarriage of Justice Organisation (Mojo), said the legislation brought to mind the saying: “Who guards the guards?”
He added: “You are asking judges to judge themselves. They have passed verdict. Will they be willing to look at the failings of their own system?
“They seem to be closing the door even more on the appeals process.”
A Scottish Government spokesperson said that it had been obliged to act swiftly following the Supreme Court ruling.
“The Scottish Government has worked closely with the appropriate bodies to prepare for every contingency arising from the case, helping mitigate the impact on the police and justice system in carrying out their day-to -day duties protecting the public and prosecuting crime,” she said.
A leading human rights lawyer last night alleged that ministers had “pulled up the drawbridge” on victims of miscarriages of justice.
Tony Kelly, best known for representing Abdul Ali Baset al-Megrahi, the convicted Lockerbie bomber, said he was astonished by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill, passed by MSPs in an emergency session last Wednesday, which seemed designed to reduce the number of cases going to appeal. (...)
He said the new law would cut across the powers of the Scottish Criminal Cases Review Commission (SCCRC) to have potential miscarriages of justice reviewed and would discourage individuals from embarking on the appeal process.
“Loud and clear, the message from this legislation is ‘Don’t appeal’,” he said.
His intervention followed the remarks of Robert Black, Professor Emeritus of Law at the University of Edinburgh, who earlier claimed that new legislation created a conflict of interest within the High Court, which had effectively been handed the power to block any appeal.
Section 7 of the Bill deals with references from the SCCRC and says: “In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.”
Mr Kelly said that in relation to “certainty” and “finality”, the SCCRC had been established to deal with cases that were final and certain.
Between 1999 and 2010, it received a total of 1186 cases, completed the review of 1136 cases and referred 97 cases to the High Court for determination. Theoretically, under the terms of the new legislation, all 97 could simply have been turned away by the High Court.
Mr Kelly said: “The SCCRC, when it was set up, was viewed as a safety net, it examined cases that fell out with the normal run of evidence and admissibility. Those included miscarriages of justice — and Scotland has had its fair share of those.
“There was a specific exception from that finality clause — enabling the commission to exercise its discretion in certain cases. How can you possibly pull back from that?”
Mr Kelly, who is visiting professor in human rights law at the University of Strathclyde, added: “Most concerning, is the fact that the High Court has two separate powers.
“It can immediately bounce a reference from the Commission if it doesn’t consider it in the interests of justice, and, in determining any appeal, it has got to have regard to ‘finality’. Loud clear, the message is: ‘Don’t appeal’.” (...)
Mr Kelly said that he was at loss to explain why the Cadder ruling had been extended to the right to appeal.
“The only rationale I can see is that they are pulling up the drawbridge, making it more difficult for people to submit applications to the Commission and for the Commission to refer cases to the High Court,” he said.
“You can talk about individual cases, but this is a blanket, covering every single appellant. It will be much more difficult, there will be fewer appeals.”
John McManus, project officer for Miscarriage of Justice Organisation (Mojo), said the legislation brought to mind the saying: “Who guards the guards?”
He added: “You are asking judges to judge themselves. They have passed verdict. Will they be willing to look at the failings of their own system?
“They seem to be closing the door even more on the appeals process.”
A Scottish Government spokesperson said that it had been obliged to act swiftly following the Supreme Court ruling.
“The Scottish Government has worked closely with the appropriate bodies to prepare for every contingency arising from the case, helping mitigate the impact on the police and justice system in carrying out their day-to -day duties protecting the public and prosecuting crime,” she said.
A contradiction
Does no-one else see the contradiction present in the current political furore about the air cargo bomb plot and the continued failure of the Scottish, UK and US Governments to mount a full inquiry into the 1988 terrorist outrage at Lockerbie?
Headlines about the current terrorist crisis representing a potential “second Lockerbie” only serve to compound my confusion and fuel thoughts of hypocrisy and self-interest.
How resolute and strong the politicians have sounded this past week in their determination to protect us all from the scourge of terrorism and, yet, when given the opportunity to mount an inquiry into the worst terrorist outrage ever perpetrated on UK soil, this resolve just melts away.
I would have thought that it was in the interests of the fight against terrorism and the credibility of our own Scottish justice system to mount an inquiry into the 1988 outrage, that claimed the lives of 270 innocent victims, so that lessons can be learned and the terrorists will feel less secure in their lairs.
[The above is the text of a letter from Iain A J McKie published in today's edition of The Herald.]
Headlines about the current terrorist crisis representing a potential “second Lockerbie” only serve to compound my confusion and fuel thoughts of hypocrisy and self-interest.
How resolute and strong the politicians have sounded this past week in their determination to protect us all from the scourge of terrorism and, yet, when given the opportunity to mount an inquiry into the worst terrorist outrage ever perpetrated on UK soil, this resolve just melts away.
I would have thought that it was in the interests of the fight against terrorism and the credibility of our own Scottish justice system to mount an inquiry into the 1988 outrage, that claimed the lives of 270 innocent victims, so that lessons can be learned and the terrorists will feel less secure in their lairs.
[The above is the text of a letter from Iain A J McKie published in today's edition of The Herald.]
SCCRC ruling now as effective as a review of Lady GaGa
... I noted this extraordinary claim:
"A Scottish Government spokesman said there was no doubt about the safety of Megrahi’s conviction."
The spokesman’s either uninformed or lying. No doubt? (...) A proclamation quite as bold as their’s, however, should send even the most epistemologically idle thinker into a fit of dubiety. The verdict was based on contradictions, bad procedure and very little evidence. Again, though, you don’t need to trust a cosmic schmuck like me – the Scottish Criminal Cases Review Commission ruled that its safety was just as doubtful as that of a clapped-out Reliant Robin. In laying claim to certitude, then, the spokesman showed lusty contempt for their state’s reviewal procedures. And, considering this largely ignored nugget o’news, why not?
"The Scottish government has been accused of using newly enacted (…) legislation to push through a law that will prevent supporters of the Lockerbie bomber from appealing his case.
"A clause buried in the emergency legislation that followed the British Supreme Court’s ruling on 'the Cadder case' allows High Court judges to have the final word on whether an appeal should be heard on their own ruling on a case."
In other words, if the Review Commission challenges a verdict they’re not mad-keen to revisit they can simply flick it aside and claim it’s "not in the interests of justice". They’re the judge, jury and while not quite executioner they are the appeals court. They’ve made an SCCRC ruling about as effective as a review of, say, Lady GaGa. It might provoke a few ripples on the internet but people, by and large, will act as if it never had been.
[From a recent post by bensix on his blog Back Towards The Locus.]
"A Scottish Government spokesman said there was no doubt about the safety of Megrahi’s conviction."
The spokesman’s either uninformed or lying. No doubt? (...) A proclamation quite as bold as their’s, however, should send even the most epistemologically idle thinker into a fit of dubiety. The verdict was based on contradictions, bad procedure and very little evidence. Again, though, you don’t need to trust a cosmic schmuck like me – the Scottish Criminal Cases Review Commission ruled that its safety was just as doubtful as that of a clapped-out Reliant Robin. In laying claim to certitude, then, the spokesman showed lusty contempt for their state’s reviewal procedures. And, considering this largely ignored nugget o’news, why not?
"The Scottish government has been accused of using newly enacted (…) legislation to push through a law that will prevent supporters of the Lockerbie bomber from appealing his case.
"A clause buried in the emergency legislation that followed the British Supreme Court’s ruling on 'the Cadder case' allows High Court judges to have the final word on whether an appeal should be heard on their own ruling on a case."
In other words, if the Review Commission challenges a verdict they’re not mad-keen to revisit they can simply flick it aside and claim it’s "not in the interests of justice". They’re the judge, jury and while not quite executioner they are the appeals court. They’ve made an SCCRC ruling about as effective as a review of, say, Lady GaGa. It might provoke a few ripples on the internet but people, by and large, will act as if it never had been.
[From a recent post by bensix on his blog Back Towards The Locus.]
Wednesday, 3 November 2010
Spinner accuses Scottish Government of spinning
[What follows is the text of a press release dated 1 November from Senator Robert Menendez.]
Scottish government authorities today revealed that Abdelset Ali Mohmed al-Megrahi had a 50% chance of living longer than the three month prognosis and that the three month figure was an estimate or “median survival time” rather than al Megrahi’s life expectancy (Click here for news report: http://www.heraldscotland.com/news/politics/government-admits-megrahi-always-had-50-50-chance-of-living-past-three-months-1.1064925). Senator Menendez released the following statement in response:
“Scottish authorities are engaged in revisionist history to try to explain the embarrassing fact that al-Megrahi is still alive well over a year after his release. Their recent admission shows that they ignored the Scottish Prison Service guidelines for compassionate release. We know from expert testimony that it was absurd to think al-Megrahi had three months to live when he was released. Every month that goes by makes the Scottish and British decision to release a mass murderer on compassionate grounds more egregious. This is a tragedy no matter how hard they try to spin this story.”
Scottish government authorities today revealed that Abdelset Ali Mohmed al-Megrahi had a 50% chance of living longer than the three month prognosis and that the three month figure was an estimate or “median survival time” rather than al Megrahi’s life expectancy (Click here for news report: http://www.heraldscotland.com/news/politics/government-admits-megrahi-always-had-50-50-chance-of-living-past-three-months-1.1064925). Senator Menendez released the following statement in response:
“Scottish authorities are engaged in revisionist history to try to explain the embarrassing fact that al-Megrahi is still alive well over a year after his release. Their recent admission shows that they ignored the Scottish Prison Service guidelines for compassionate release. We know from expert testimony that it was absurd to think al-Megrahi had three months to live when he was released. Every month that goes by makes the Scottish and British decision to release a mass murderer on compassionate grounds more egregious. This is a tragedy no matter how hard they try to spin this story.”
An outrage that should not happen in any civilised country
["Emergency law ‘may prevent Lockerbie bomber appeal’" is the headline over an article in today's edition of The Times (which can be accessed here -- but only, of course, by subscribers). It reads in part:]
The Scottish government has been accused of using newly enacted (...) legislation to push through a law that will prevent supporters of the Lockerbie bomber from appealing his case.
A clause buried in the emergency legislation that followed the British Supreme Court’s ruling on “the Cadder case” allows High Court judges to have the final word on whether an appeal should be heard on their own ruling on a case.
Critics of the legislation say this represents a clear conflict of interest for the High Court, in its dealings with the Scottish Criminal Cases Review Commission (SCCRC), while supporters of Abdul Baset Ali al-Megrahi believe the new modus operandi will present an almost insuperable obstacle to an appeal against his conviction being heard.
“Section 7 [of the new legislation] would appear to place an additional hurdle in the path of any such attempt,” said Robert Black, Professor Emeritus of Law at the University of Edinburgh.
“Even if it wasn’t done for that reason, it is inherently undesirable. It is outrageous that a Scottish government, that any responsible government, should have proposed such legislation and it is outrageous that any responsible parliament should have passed it.”
Professor Black’s intervention came a week after the Supreme Court ruled that Scottish arrest and detention laws did not comply with the European Convention on Human Rights (ECHR). (...)
Professor Black said emergency legislation had been unnecessary and the result was “absolutely astonishing and disgraceful”.
Critics of the legislation are outraged that it could prevent the Lockerbie case being heard again by the High Court, should some of the families of victims killed in the 1988 atrocity resurrect Megrahi’s appeal, as they they intend. The Libyan, who is dying of cancer, was convicted of the bombing in 2001.
Professor Black said: “The effect [of the new law] is that even if the SCCRC now says there may have been a miscarriage of justice and it is in the interests of justice that there should be an appeal, the Appeal Court itself can say, ‘We refuse to accept the reference’. That is the same body — namely the High Court — whose initial decision the SCCRC has said may amount to a miscarriage of justice. In that case, the High Court can turn round and say, ‘We, the court you are accusing of perhaps having perpetrated a miscarriage of justice, say: ‘Go away and get stuffed.’ That is an outrage and should not happen in any civilised country.”
John McGovern, the president of the Glasgow Bar Association, dismissed the legislation as “civil service law”, and he too was at a loss to explain its rationale for Section 7.
“The SCCRC is very independent. Why they have used this Act to take away its independence and place it in the hands of the Appeal Court, I don’t know. It could well be an excuse to curb its powers,” he said.
The Scottish government’s kneejerk reaction to the decision of the UK Supreme Court had been a huge mistake, he added.
“To present a Bill at 9am, to debate at 2pm and to legislate at 7pm for an Act which restricted fundamental, centuries-old appeal rights in Scotland was unfortunate, to say the least. There was no emergency with Cadder,” he said.
A Scottish government spokesman said it was essential for the Justice Secretary to act immediately the Supreme Court had ruled that Scottish law was incompatible with European law, and the Act was entirely a response to the Cadder ruling.
“It is beyond question that there was need for legislation that was compliant with the ECHR,” he added.
The Scottish government has been accused of using newly enacted (...) legislation to push through a law that will prevent supporters of the Lockerbie bomber from appealing his case.
A clause buried in the emergency legislation that followed the British Supreme Court’s ruling on “the Cadder case” allows High Court judges to have the final word on whether an appeal should be heard on their own ruling on a case.
Critics of the legislation say this represents a clear conflict of interest for the High Court, in its dealings with the Scottish Criminal Cases Review Commission (SCCRC), while supporters of Abdul Baset Ali al-Megrahi believe the new modus operandi will present an almost insuperable obstacle to an appeal against his conviction being heard.
“Section 7 [of the new legislation] would appear to place an additional hurdle in the path of any such attempt,” said Robert Black, Professor Emeritus of Law at the University of Edinburgh.
“Even if it wasn’t done for that reason, it is inherently undesirable. It is outrageous that a Scottish government, that any responsible government, should have proposed such legislation and it is outrageous that any responsible parliament should have passed it.”
Professor Black’s intervention came a week after the Supreme Court ruled that Scottish arrest and detention laws did not comply with the European Convention on Human Rights (ECHR). (...)
Professor Black said emergency legislation had been unnecessary and the result was “absolutely astonishing and disgraceful”.
Critics of the legislation are outraged that it could prevent the Lockerbie case being heard again by the High Court, should some of the families of victims killed in the 1988 atrocity resurrect Megrahi’s appeal, as they they intend. The Libyan, who is dying of cancer, was convicted of the bombing in 2001.
Professor Black said: “The effect [of the new law] is that even if the SCCRC now says there may have been a miscarriage of justice and it is in the interests of justice that there should be an appeal, the Appeal Court itself can say, ‘We refuse to accept the reference’. That is the same body — namely the High Court — whose initial decision the SCCRC has said may amount to a miscarriage of justice. In that case, the High Court can turn round and say, ‘We, the court you are accusing of perhaps having perpetrated a miscarriage of justice, say: ‘Go away and get stuffed.’ That is an outrage and should not happen in any civilised country.”
John McGovern, the president of the Glasgow Bar Association, dismissed the legislation as “civil service law”, and he too was at a loss to explain its rationale for Section 7.
“The SCCRC is very independent. Why they have used this Act to take away its independence and place it in the hands of the Appeal Court, I don’t know. It could well be an excuse to curb its powers,” he said.
The Scottish government’s kneejerk reaction to the decision of the UK Supreme Court had been a huge mistake, he added.
“To present a Bill at 9am, to debate at 2pm and to legislate at 7pm for an Act which restricted fundamental, centuries-old appeal rights in Scotland was unfortunate, to say the least. There was no emergency with Cadder,” he said.
A Scottish government spokesman said it was essential for the Justice Secretary to act immediately the Supreme Court had ruled that Scottish law was incompatible with European law, and the Act was entirely a response to the Cadder ruling.
“It is beyond question that there was need for legislation that was compliant with the ECHR,” he added.
Monday, 1 November 2010
Cadder provision creates “new hurdle” to Megrahi appeal
[This is the headline over an article just published on the website of Scottish lawyers' magazine The Firm. It reads as follows:]
A provision in the emergency legislation introduced following the Cadder case has created “an entirely new hurdle” for the planned resurrection of Abdelbaset Ali Mohmed Al Megrahi’s appeal by the bereaved Pan Am 103 families.
The new Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill was rushed through all its Parliamentary stages on 27 October, under the justification that its emergency procedures required to be enacted swiftly in the wake of the Cadder case, which ruled that Scots arrest procedure was incompatible with EU law.
Professor Robert Black QC says section 7 of the new Act, which has not yet received Royal Assent, creates a conflict of interest for the High Court, which is now charged with considering “the need for finality and certainty in criminal proceedings" when it decides whether to accept a referral from the SCCRC.
It could also prevent the case being heard again by the High Court when the families resurrect Megrahi's dropped appeal, as they have announced they plan to do.
“It is easy to see how such a provision could be used by the SCCRC and by the High Court if Jim Swire and other Lockerbie relatives were to seek to have Megrahi's conviction reviewed,“ says Black.
“This is such a major and fundamental change in the law that it should not be made in emergency legislation, where there has been no opportunity for public consultation.”
On Friday, the President of the Glasgow Bar Association also railed at the lack of consultation, and claimed there was not even an emergency that would justify the hasty passage of the legislation.
"There is no emergency, nor has there ever been over Cadder. But it is convenient to bury jealously guarded principles and conventions of Scots Law, which don’t suit, by creating one,” said John McGovern.
“When we have a Parliament presented with a Bill of this significance, with a debating vent so narrow, that decent, smart parliamentarians fail to understand what they’re being asked to vote upon, then we have civil service law."
Professor Black says the new provision might now tip the scales in favour of the SCCRC not referring potential miscarriage of justice cases to the High Court for a review.
“The SCCRC is now told that in considering whether to refer back for an appeal, it must take into account 'the need for finality and certainty in criminal proceedings'. This, I am sure, was always ONE of the factors that the SCCRC put into the balance when considering whether it was 'in the interests of justice' to refer back. But it is now specifically instructed to take it into account. In an evenly balanced case, it might now tip the scales in favour of not referring back,” Black said.
“Much more important is the power given to the High Court (sitting as the Criminal Appeal Court). Even where the SCCRC has decided to refer back, the High Court, in turn, can refuse to accept the reference, having regard to 'the need for finality and certainty in criminal proceedings'. This is an entirely new hurdle that has to be jumped.
“And remember that in almost every case that the SCCRC refers back, it will be an earlier decision of the High Court itself that is being said may amount to a miscarriage of justice. So the very body whose decision is being impugned can decide not to hear the challenge to that decision on the basis of 'the need for finality and certainty in criminal proceedings'.
Black warns that this creates a conflict of interest, and a dilemma for the High Court which has to act as a judge in its own cause, and create doubt about whether justice was “being seen to be done“.
A provision in the emergency legislation introduced following the Cadder case has created “an entirely new hurdle” for the planned resurrection of Abdelbaset Ali Mohmed Al Megrahi’s appeal by the bereaved Pan Am 103 families.
The new Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill was rushed through all its Parliamentary stages on 27 October, under the justification that its emergency procedures required to be enacted swiftly in the wake of the Cadder case, which ruled that Scots arrest procedure was incompatible with EU law.
Professor Robert Black QC says section 7 of the new Act, which has not yet received Royal Assent, creates a conflict of interest for the High Court, which is now charged with considering “the need for finality and certainty in criminal proceedings" when it decides whether to accept a referral from the SCCRC.
It could also prevent the case being heard again by the High Court when the families resurrect Megrahi's dropped appeal, as they have announced they plan to do.
“It is easy to see how such a provision could be used by the SCCRC and by the High Court if Jim Swire and other Lockerbie relatives were to seek to have Megrahi's conviction reviewed,“ says Black.
“This is such a major and fundamental change in the law that it should not be made in emergency legislation, where there has been no opportunity for public consultation.”
On Friday, the President of the Glasgow Bar Association also railed at the lack of consultation, and claimed there was not even an emergency that would justify the hasty passage of the legislation.
"There is no emergency, nor has there ever been over Cadder. But it is convenient to bury jealously guarded principles and conventions of Scots Law, which don’t suit, by creating one,” said John McGovern.
“When we have a Parliament presented with a Bill of this significance, with a debating vent so narrow, that decent, smart parliamentarians fail to understand what they’re being asked to vote upon, then we have civil service law."
Professor Black says the new provision might now tip the scales in favour of the SCCRC not referring potential miscarriage of justice cases to the High Court for a review.
“The SCCRC is now told that in considering whether to refer back for an appeal, it must take into account 'the need for finality and certainty in criminal proceedings'. This, I am sure, was always ONE of the factors that the SCCRC put into the balance when considering whether it was 'in the interests of justice' to refer back. But it is now specifically instructed to take it into account. In an evenly balanced case, it might now tip the scales in favour of not referring back,” Black said.
“Much more important is the power given to the High Court (sitting as the Criminal Appeal Court). Even where the SCCRC has decided to refer back, the High Court, in turn, can refuse to accept the reference, having regard to 'the need for finality and certainty in criminal proceedings'. This is an entirely new hurdle that has to be jumped.
“And remember that in almost every case that the SCCRC refers back, it will be an earlier decision of the High Court itself that is being said may amount to a miscarriage of justice. So the very body whose decision is being impugned can decide not to hear the challenge to that decision on the basis of 'the need for finality and certainty in criminal proceedings'.
Black warns that this creates a conflict of interest, and a dilemma for the High Court which has to act as a judge in its own cause, and create doubt about whether justice was “being seen to be done“.
Sunday, 31 October 2010
Libyan ambassador to Malta speaks on Lockerbie
[What follows is an excerpt from a long interview in the Maltese newspaper The Sunday Times with the recently appointed Libyan ambassador, Dr Saadun Suayeh:]
The single biggest issue, apart from immigration, that has seen the fate of Malta and Libya intertwine is Lockerbie.
The bombing of Pan Am flight 103 in December 1988 over the Scottish town of Lockerbie killed 270 people. It was a brutal terrorist attack that shocked the world and one that saw Malta implicated as the point of departure of the bomb, which eventually destroyed the aircraft.
The blame was pinned down to two Libyan secret service agents, who at the time worked in Malta. Only one of them, Abdelbaset al-Megrahi, was found guilty at a high-profile trial conducted under Scottish laws in Camp Zeist, the Netherlands.
Mr Al-Megrahi was condemned to life imprisonment. However, he was released on compassionate grounds last year amid serious doubts that he may have been wrongly convicted.
Malta has long denied any involvement in the Lockerbie case, insisting that the luggage containing the bomb could have never left the island unaccompanied.
Only last week campaigners, who believe that Mr Al-Megrahi was wrongly convicted, presented a petition to the Scottish Parliament (...) asking for an independent inquiry into the Camp Zeist conclusions.
The search for the truth continues 22 years after the attack but how does Libya feel today about the affair?
Dr Suayeh talks little about the Lockerbie saga. He considers it “a closed chapter” and an issue Libya wants to put behind it.
“We have dealt with Lockerbie very responsibly and transparently and we left it up to the Scottish authorities to decide on Mr Al-Megrahi’s release. We would like to leave it at that,” he says.
As for the campaigners who still seek the truth about what happened on that fateful December night, Dr Suayeh says they are entitled to take what action they deem fit.
In 2003, two years after Mr Al-Megrahi’s conviction, Libya formally accepted responsibility for the actions of its officials and agreed to pay billions in compensation to the families of the Lockerbie victims. It was perceived as an admission of guilt but many felt the underlying motive was Mr Gaddafi’s pragmatic attempt to normalise international relations. Libya has since maintained its innocence.
“We always felt that Libya was wronged by the Lockerbie affair. We always wanted to be law abiding, and all that we hope for now, with this chapter behind us, is to foster better relations with everybody, hoping that truth prevails,” Dr Suayeh says.
The single biggest issue, apart from immigration, that has seen the fate of Malta and Libya intertwine is Lockerbie.
The bombing of Pan Am flight 103 in December 1988 over the Scottish town of Lockerbie killed 270 people. It was a brutal terrorist attack that shocked the world and one that saw Malta implicated as the point of departure of the bomb, which eventually destroyed the aircraft.
The blame was pinned down to two Libyan secret service agents, who at the time worked in Malta. Only one of them, Abdelbaset al-Megrahi, was found guilty at a high-profile trial conducted under Scottish laws in Camp Zeist, the Netherlands.
Mr Al-Megrahi was condemned to life imprisonment. However, he was released on compassionate grounds last year amid serious doubts that he may have been wrongly convicted.
Malta has long denied any involvement in the Lockerbie case, insisting that the luggage containing the bomb could have never left the island unaccompanied.
Only last week campaigners, who believe that Mr Al-Megrahi was wrongly convicted, presented a petition to the Scottish Parliament (...) asking for an independent inquiry into the Camp Zeist conclusions.
The search for the truth continues 22 years after the attack but how does Libya feel today about the affair?
Dr Suayeh talks little about the Lockerbie saga. He considers it “a closed chapter” and an issue Libya wants to put behind it.
“We have dealt with Lockerbie very responsibly and transparently and we left it up to the Scottish authorities to decide on Mr Al-Megrahi’s release. We would like to leave it at that,” he says.
As for the campaigners who still seek the truth about what happened on that fateful December night, Dr Suayeh says they are entitled to take what action they deem fit.
In 2003, two years after Mr Al-Megrahi’s conviction, Libya formally accepted responsibility for the actions of its officials and agreed to pay billions in compensation to the families of the Lockerbie victims. It was perceived as an admission of guilt but many felt the underlying motive was Mr Gaddafi’s pragmatic attempt to normalise international relations. Libya has since maintained its innocence.
“We always felt that Libya was wronged by the Lockerbie affair. We always wanted to be law abiding, and all that we hope for now, with this chapter behind us, is to foster better relations with everybody, hoping that truth prevails,” Dr Suayeh says.
Nationals of 33 countries sign Justice for Megrahi petition
[The following are excerpts from an article by Kurt Sansone in today's edition of the Maltese newspaper The Sunday Times.]
More than 100 Maltese nationals have signed a petition calling on the Scottish government to open an independent inquiry into the only Lockerbie bombing conviction to date.
The petition, signed by nationals from 33 countries, was filed with the Scottish parliament last Tuesday and is piloted by the pressure group Justice for Megrahi. (...) [RB: The petition is still open for signature until 1 November, but the Scottish Parliament's e-petitions website has been out of operation since Thursday, 28 October, this on top of a five-day outage the previous week.]
The online petition attracted 1,649 signatories, a record for any petition ever filed with parliament’s petitions committee, according to Jim Swire, a founder of Justice for Megrahi and the father of Flora, a victim of the worst terrorist act on British soil. (...)
The petition calls on the Scottish Parliament to urge the Scottish government to open an independent inquiry into the 2001 Kamp van Zeist conviction for the bombing of Pan Am flight 103 in December 1988.
Dr Swire told The Sunday Times the ball is in the petitions committee’s court, adding that campaigners will probably be summoned by Scottish MPs to explain the contents of the petition.
“We believe our cause will find some ears but I can’t say how Scottish MPs will react,” Dr Swire said when asked whether he was hopeful the petition would move forward.
However, he pointed out that with the Scottish election in May [2011] the governing Scottish National Party may be willing “to be seen to do something”.
Campaigners, he added, were comforted by the decision of the Scottish Criminal Cases Review Commission in 2007 that the Libyan “may have suffered a miscarriage of justice”. (...)
Investigators had concluded the suitcase containing the bomb that exploded over Scotland was loaded in an unaccompanied luggage on an Air Malta flight to Germany before making its way to London.
Malta has always denied any link with the case.
The luggage was traced back to Mr Al-Megrahi and another Libyan man who at the time were Libyan secret service agents working with Libyan Arab airlines in Malta.
The crucial evidence to convict Mr Al-Megrahi was provided by a Maltese shopkeeper, Tony Gauci, from Sliema, who identified him as the person who bought the clothes that were found in the luggage.
However, serious doubts have been shed on the credibility of the Maltese shopkeeper.
Mr Al-Megrahi’s defence team contended that the Maltese witness was paid “in excess of $2 million”, while his brother was paid “in excess of $1 million” for cooperating. Neither has ever denied receiving payment.
Twenty-two years on from the bombing, Dr Swire remains convinced of the Libyan’s innocence, saying he was converted by the evidence he heard in the main trial.
In presenting the petition, the campaigners said the “perverse judgement not only resulted in the conviction of Mr al-Megrahi, but maligned Germany, Libya, Malta and the UK.”
It also quotes Foreign Minister Tonio Borg as saying: “We have no proof that these two Libyan suspects were involved in anything illegal in Malta regarding this case, particularly the placing of this bomb on Air Malta Flight 180.”
More than 100 Maltese nationals have signed a petition calling on the Scottish government to open an independent inquiry into the only Lockerbie bombing conviction to date.
The petition, signed by nationals from 33 countries, was filed with the Scottish parliament last Tuesday and is piloted by the pressure group Justice for Megrahi. (...) [RB: The petition is still open for signature until 1 November, but the Scottish Parliament's e-petitions website has been out of operation since Thursday, 28 October, this on top of a five-day outage the previous week.]
The online petition attracted 1,649 signatories, a record for any petition ever filed with parliament’s petitions committee, according to Jim Swire, a founder of Justice for Megrahi and the father of Flora, a victim of the worst terrorist act on British soil. (...)
The petition calls on the Scottish Parliament to urge the Scottish government to open an independent inquiry into the 2001 Kamp van Zeist conviction for the bombing of Pan Am flight 103 in December 1988.
Dr Swire told The Sunday Times the ball is in the petitions committee’s court, adding that campaigners will probably be summoned by Scottish MPs to explain the contents of the petition.
“We believe our cause will find some ears but I can’t say how Scottish MPs will react,” Dr Swire said when asked whether he was hopeful the petition would move forward.
However, he pointed out that with the Scottish election in May [2011] the governing Scottish National Party may be willing “to be seen to do something”.
Campaigners, he added, were comforted by the decision of the Scottish Criminal Cases Review Commission in 2007 that the Libyan “may have suffered a miscarriage of justice”. (...)
Investigators had concluded the suitcase containing the bomb that exploded over Scotland was loaded in an unaccompanied luggage on an Air Malta flight to Germany before making its way to London.
Malta has always denied any link with the case.
The luggage was traced back to Mr Al-Megrahi and another Libyan man who at the time were Libyan secret service agents working with Libyan Arab airlines in Malta.
The crucial evidence to convict Mr Al-Megrahi was provided by a Maltese shopkeeper, Tony Gauci, from Sliema, who identified him as the person who bought the clothes that were found in the luggage.
However, serious doubts have been shed on the credibility of the Maltese shopkeeper.
Mr Al-Megrahi’s defence team contended that the Maltese witness was paid “in excess of $2 million”, while his brother was paid “in excess of $1 million” for cooperating. Neither has ever denied receiving payment.
Twenty-two years on from the bombing, Dr Swire remains convinced of the Libyan’s innocence, saying he was converted by the evidence he heard in the main trial.
In presenting the petition, the campaigners said the “perverse judgement not only resulted in the conviction of Mr al-Megrahi, but maligned Germany, Libya, Malta and the UK.”
It also quotes Foreign Minister Tonio Borg as saying: “We have no proof that these two Libyan suspects were involved in anything illegal in Malta regarding this case, particularly the placing of this bomb on Air Malta Flight 180.”
Al-Megrahi 'pressured to abandon appeal'
[This is the headline over an article by Marcello Mega in today's edition of Scotland on Sunday. It reads in part:]
The man convicted of the Lockerbie bombing was forced to abandon his appeal to secure compassionate release on the grounds of his terminal cancer, a justice department whistleblower claims.
Three senior sources close to Abdelbaset Ali Mohmed Al-Megrahi, who has now exceeded the three months he was expected to live by more than ten months, have confirmed the whistleblower's version of events.
Megrahi suddenly dropped his appeal against conviction shortly after the Scottish Government announced he was to be released to return to Libya on compassionate grounds.
It was claimed at the time that the government had made the dropping of the appeal a condition of his release, in order to spare any damage to the reputation the Scottish justice system. The government has always denied the allegations.
The whistleblower's information appeared in an e-mail received last year by the Nationalist MSP Christine Grahame, who met Megrahi after viewing a documentary that convinced her of his innocence. She continues to lobby for justice for him. (...)
The e-mail reads: "The minister seemed set to do the decent thing, allow a dying man to go home and the appeal to continue. However the department has strongly intimated to the Libyans that if Megrahi is to be granted compassionate release he must first drop his appeal. This was the (sic) rammed home to the Libyans at their meeting with the minister yesterday.
"Megrahi is desperate and will do anything to get home, including dropping his appeal, as his prisoner transfer request demonstrates. The department knows it, as does the minister."
Megrahi has always protested his innocence, and the independent Scottish Criminal Cases Review Commission had referred his case back to appeal.
The SCCRC found there were six grounds for believing that Megrahi's conviction might have been a miscarriage of justice. (...)
It seemed inexplicable that he would abandon his appeal, but sources close to Megrahi have now revealed the chain of events and have confirmed that he was given no choice.
One Libyan source confirmed the meeting mentioned in the e-mail took place.
He said: "Three senior Libyans, including the Minister for Europe Abdel Ati al-Obeidi, met with Mr MacAskill and it was made clear that things would be resolved speedily if he dropped his appeal.
"They left Edinburgh and went direct to Greenock to visit Baset and they told him he had no choice. In fact they gave him no choice. They told him the appeal would be dropped, but that he would soon be home.
"He was not happy about the appeal. Even after he dies, he does not want his offspring to be labelled the children of the Lockerbie bomber."
Two other sources who have maintained close contact with Megrahi since his return to Libya and have been told the story directly by him confirmed the chain of events.
One said: "A few months earlier he'd have fought tooth and nail not to abandon his appeal. But he really did feel so ill he was sure he must die soon and the desire to get home and die with his family round him overtook everything else."
Grahame said: "I suspected inappropriate pressure had been placed on Megrahi and these latest revelations appear to confirm that. This makes the case for a full and thorough public inquiry even more pressing."
A Scottish Government Spokesperson said: "We have absolutely no knowledge of any such e-mail. The Scottish Government had no conceivable interest in the appeal being dropped."
[The Sunday Herald runs a story headlined Government admits Megrahi always had 50/50 chance of living past three months. It makes the earth-shattering disclosure that "a key Government official has now revealed Megrahi stood a 50% chance of living longer than three months. George Burgess, the Government’s former deputy director of criminal law and licensing, who advised MacAskill, said the three-month figure was a 'median survival time', rather than the upper limit of Megrahi’s life expectancy. Median survival time is defined as the time at which half the patients with a disease are expected to be alive and half expected to be dead."
The man convicted of the Lockerbie bombing was forced to abandon his appeal to secure compassionate release on the grounds of his terminal cancer, a justice department whistleblower claims.
Three senior sources close to Abdelbaset Ali Mohmed Al-Megrahi, who has now exceeded the three months he was expected to live by more than ten months, have confirmed the whistleblower's version of events.
Megrahi suddenly dropped his appeal against conviction shortly after the Scottish Government announced he was to be released to return to Libya on compassionate grounds.
It was claimed at the time that the government had made the dropping of the appeal a condition of his release, in order to spare any damage to the reputation the Scottish justice system. The government has always denied the allegations.
The whistleblower's information appeared in an e-mail received last year by the Nationalist MSP Christine Grahame, who met Megrahi after viewing a documentary that convinced her of his innocence. She continues to lobby for justice for him. (...)
The e-mail reads: "The minister seemed set to do the decent thing, allow a dying man to go home and the appeal to continue. However the department has strongly intimated to the Libyans that if Megrahi is to be granted compassionate release he must first drop his appeal. This was the (sic) rammed home to the Libyans at their meeting with the minister yesterday.
"Megrahi is desperate and will do anything to get home, including dropping his appeal, as his prisoner transfer request demonstrates. The department knows it, as does the minister."
Megrahi has always protested his innocence, and the independent Scottish Criminal Cases Review Commission had referred his case back to appeal.
The SCCRC found there were six grounds for believing that Megrahi's conviction might have been a miscarriage of justice. (...)
It seemed inexplicable that he would abandon his appeal, but sources close to Megrahi have now revealed the chain of events and have confirmed that he was given no choice.
One Libyan source confirmed the meeting mentioned in the e-mail took place.
He said: "Three senior Libyans, including the Minister for Europe Abdel Ati al-Obeidi, met with Mr MacAskill and it was made clear that things would be resolved speedily if he dropped his appeal.
"They left Edinburgh and went direct to Greenock to visit Baset and they told him he had no choice. In fact they gave him no choice. They told him the appeal would be dropped, but that he would soon be home.
"He was not happy about the appeal. Even after he dies, he does not want his offspring to be labelled the children of the Lockerbie bomber."
Two other sources who have maintained close contact with Megrahi since his return to Libya and have been told the story directly by him confirmed the chain of events.
One said: "A few months earlier he'd have fought tooth and nail not to abandon his appeal. But he really did feel so ill he was sure he must die soon and the desire to get home and die with his family round him overtook everything else."
Grahame said: "I suspected inappropriate pressure had been placed on Megrahi and these latest revelations appear to confirm that. This makes the case for a full and thorough public inquiry even more pressing."
A Scottish Government Spokesperson said: "We have absolutely no knowledge of any such e-mail. The Scottish Government had no conceivable interest in the appeal being dropped."
[The Sunday Herald runs a story headlined Government admits Megrahi always had 50/50 chance of living past three months. It makes the earth-shattering disclosure that "a key Government official has now revealed Megrahi stood a 50% chance of living longer than three months. George Burgess, the Government’s former deputy director of criminal law and licensing, who advised MacAskill, said the three-month figure was a 'median survival time', rather than the upper limit of Megrahi’s life expectancy. Median survival time is defined as the time at which half the patients with a disease are expected to be alive and half expected to be dead."
Saturday, 30 October 2010
Dropping appeal against the conviction of Megrahi does not make the doubts go away
[This is the heading over a letter from Morag Kerr in today's edition of The Herald. It reads as follows:]
Serious concerns have been expressed regarding Abdelbaset Ali Mohmed al Megrahi’s conviction since the verdict was announced in 2001, with many of those who attended the trial describing it as perverse (“Cardinal backs call for independent inquiry into conviction of Megrahi”, The Herald October 27). Prominent among the critics was Dr Hans Köchler, official UN observer to the trial, who described the verdict as “arbitrary, even irrational”, declaring that “the trial, seen in its entirety, was not fair and was not conducted in an objective manner” .
The case was the subject of a three-and-a-half-year in-depth investigation by the Scottish Criminal Cases Review Commission, at a cost of £1,108,536 to the public purse. The Commission produced an 800-page report together with 13 volumes of appendices, resulting in the conclusion (announced in 2007) that there were six grounds for believing the conviction to be a possible miscarriage of justice. The dropping of the appeal by Megrahi does not make these doubts go away; nor does it transform the verdict into a sound one.
[I an grateful to Morag Kerr for allowing me to reproduce here the letter as it was submitted and before it was edited:]
The statement by a Scottish government spokesman that “there [is] no doubt about the safety of Megrahi’s conviction” (...) is incomprehensible.
Serious concerns have been expressed regarding the safety of that conviction since the verdict was announced in 2001, with many of those who attended the trial describing it as perverse. Prominent among the critics was Dr. Hans Köchler, official UN observer to the trial, who published a blistering attack on the judicial process, describing the verdict as “arbitrary, even irrational”, further declaring that “the trial, seen in its entirety, was not fair and was not conducted in an objective manner.” Indeed, simply reading through the 81-page Opinion of the Court reveals so much reasonable doubt surrounding the evidence that the pronouncement of the guilty verdict comes as a bolt from the blue.
The case was the subject of a three-and-a-half-year in-depth investigation by the Scottish Criminal Cases Review Commission, at a cost of £1,108,536 to the public purse. The Commission produced an 800-page report together with 13 volumes of appendices, resulting in the conclusion (announced in 2007) that there were no less than six grounds for believing the conviction to be a possible miscarriage of justice.
The dropping of the appeal by Mr. al-Megrahi, whether coerced or not, does not make these doubts go away, nor does it magically transform a perverse verdict into a sound one.
Serious concerns have been expressed regarding Abdelbaset Ali Mohmed al Megrahi’s conviction since the verdict was announced in 2001, with many of those who attended the trial describing it as perverse (“Cardinal backs call for independent inquiry into conviction of Megrahi”, The Herald October 27). Prominent among the critics was Dr Hans Köchler, official UN observer to the trial, who described the verdict as “arbitrary, even irrational”, declaring that “the trial, seen in its entirety, was not fair and was not conducted in an objective manner” .
The case was the subject of a three-and-a-half-year in-depth investigation by the Scottish Criminal Cases Review Commission, at a cost of £1,108,536 to the public purse. The Commission produced an 800-page report together with 13 volumes of appendices, resulting in the conclusion (announced in 2007) that there were six grounds for believing the conviction to be a possible miscarriage of justice. The dropping of the appeal by Megrahi does not make these doubts go away; nor does it transform the verdict into a sound one.
[I an grateful to Morag Kerr for allowing me to reproduce here the letter as it was submitted and before it was edited:]
The statement by a Scottish government spokesman that “there [is] no doubt about the safety of Megrahi’s conviction” (...) is incomprehensible.
Serious concerns have been expressed regarding the safety of that conviction since the verdict was announced in 2001, with many of those who attended the trial describing it as perverse. Prominent among the critics was Dr. Hans Köchler, official UN observer to the trial, who published a blistering attack on the judicial process, describing the verdict as “arbitrary, even irrational”, further declaring that “the trial, seen in its entirety, was not fair and was not conducted in an objective manner.” Indeed, simply reading through the 81-page Opinion of the Court reveals so much reasonable doubt surrounding the evidence that the pronouncement of the guilty verdict comes as a bolt from the blue.
The case was the subject of a three-and-a-half-year in-depth investigation by the Scottish Criminal Cases Review Commission, at a cost of £1,108,536 to the public purse. The Commission produced an 800-page report together with 13 volumes of appendices, resulting in the conclusion (announced in 2007) that there were no less than six grounds for believing the conviction to be a possible miscarriage of justice.
The dropping of the appeal by Mr. al-Megrahi, whether coerced or not, does not make these doubts go away, nor does it magically transform a perverse verdict into a sound one.
Independent inquiry into Megrahi case would achieve nothing
[This is the heading over a letter from Iain A D Mann in yesterday's edition of The Herald. It reads as follows:]
I welcome the support of Cardinal Keith O’Brien for the petition asking the Scottish Government to hold an independent inquiry into all the circumstances of the trial and conviction of Abdelbaset Ali Mohmed al Megrahi (...) But although I signed the petition, I have little confidence that it will have any effect.
Both First Minister Alex Salmond and Justice Secretary Kenny MacAskill have repeatedly stated their belief that Megrahi’s conviction was entirely correct, and they seem determined to ignore the independent report of the Scottish Criminal Cases Review Commission (SCCRC) listing several serious concerns about the evidence at his trial and suggesting that the conviction may have been unsafe.
In any case, it seems that an inquiry set up by the Scottish Government would have no powers to summon witnesses or to examine them under oath, or to demand the release of relevant UK and US documents so far denied even to Megrahi’s defence team, so it would be a pointless exercise.
A UK inquiry could meet these witness and disclosure requirements, but neither the Coalition Government nor the Labour Opposition is the slightest bit interested in opening up such a can of worms, in which previous Tory and Labour governments were deeply involved.
So it seems that the only chance of finally getting to the truth is to re-open Megrahi’s second appeal to the Scottish Appeal Court. I’m sure some way could be found to achieve this if there was sufficient political pressure and the judicial will, but these are both sadly lacking.
Mind you, I would not be too confident of such an appeal producing a fair and sensible result.
[Here are my responses to the pretexts that the Scottish Government have put forward for refusing to set up an independent inquiry:]
Reason 1 "The questions to be asked and answered in any such inquiry would be beyond the jurisdiction of Scots law and the remit of the Scottish Government, and such an inquiry would therefore need to be initiated by those with the required power and authority to deal with an issue international in its nature."
Answer This misrepresents what the petition asks the Scottish Government to do.
The petition calls on the Scottish Parliament "to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988." It does not ask for the establishment of a general inquiry tasked with finding out the truth about the Lockerbie disaster. This would, of course, be beyond the powers of the Scottish Government under the Scotland Act 1998.
The petition asks for an inquiry into the conviction of a person by a Scottish court. This might involve consideration of --
*the police investigation of the tragedy;
*the Fatal Accident Inquiry into the downing of Pan Am 103;
*the conduct of the Crown Office in preparing the prosecution;
*the trial in the Scottish Court in the Netherlands;
*the acquittal of Mr Fhimah and conviction of Mr al-Megrahi;
*the rejection of the first appeal;
*the Scottish Criminal Cases Review Commission's referral of Mr Al-Megrahi's case to the Court of Appeal;
*the dropping of this second appeal;
*the compassionate release of Mr al-Megrahi.
Each and every one of these matters is within "the jurisdiction of Scots law and the remit of the Scottish Government".
Reason 2 "The Scottish Justice Secretary made it clear that under the powers devolved to Holyrood no worthwhile scrutiny could be ordered here because there would be no powers to compel witnesses." (http://www.eveningtimes.co.uk/macaskill-tells-world-why-he-freed-megrahi-1.982718)
Answer An inquiry constituted under the Inquiries Act 2005 (www.legislation.gov.uk/ukpga/2005/12/contents) does have power under sections 21, 22 and 28 to compel witnesses and to compel the production of documents and other evidence. Indeed, the relevant powers of such an inquiry are greater than those of the Scottish Criminal Cases Review Commission under sections 194H and 194I of the Criminal Procedure (Scotland) Act 1995. Yet, with even its limited powers, the SCCRC was able to conduct a wide-ranging investigation into the Megrahi conviction, involving the interview of many witnesses and the consideration of thousands of documents and other items of evidence, and to reach conclusions based thereon.
I welcome the support of Cardinal Keith O’Brien for the petition asking the Scottish Government to hold an independent inquiry into all the circumstances of the trial and conviction of Abdelbaset Ali Mohmed al Megrahi (...) But although I signed the petition, I have little confidence that it will have any effect.
Both First Minister Alex Salmond and Justice Secretary Kenny MacAskill have repeatedly stated their belief that Megrahi’s conviction was entirely correct, and they seem determined to ignore the independent report of the Scottish Criminal Cases Review Commission (SCCRC) listing several serious concerns about the evidence at his trial and suggesting that the conviction may have been unsafe.
In any case, it seems that an inquiry set up by the Scottish Government would have no powers to summon witnesses or to examine them under oath, or to demand the release of relevant UK and US documents so far denied even to Megrahi’s defence team, so it would be a pointless exercise.
A UK inquiry could meet these witness and disclosure requirements, but neither the Coalition Government nor the Labour Opposition is the slightest bit interested in opening up such a can of worms, in which previous Tory and Labour governments were deeply involved.
So it seems that the only chance of finally getting to the truth is to re-open Megrahi’s second appeal to the Scottish Appeal Court. I’m sure some way could be found to achieve this if there was sufficient political pressure and the judicial will, but these are both sadly lacking.
Mind you, I would not be too confident of such an appeal producing a fair and sensible result.
[Here are my responses to the pretexts that the Scottish Government have put forward for refusing to set up an independent inquiry:]
Reason 1 "The questions to be asked and answered in any such inquiry would be beyond the jurisdiction of Scots law and the remit of the Scottish Government, and such an inquiry would therefore need to be initiated by those with the required power and authority to deal with an issue international in its nature."
Answer This misrepresents what the petition asks the Scottish Government to do.
The petition calls on the Scottish Parliament "to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988." It does not ask for the establishment of a general inquiry tasked with finding out the truth about the Lockerbie disaster. This would, of course, be beyond the powers of the Scottish Government under the Scotland Act 1998.
The petition asks for an inquiry into the conviction of a person by a Scottish court. This might involve consideration of --
*the police investigation of the tragedy;
*the Fatal Accident Inquiry into the downing of Pan Am 103;
*the conduct of the Crown Office in preparing the prosecution;
*the trial in the Scottish Court in the Netherlands;
*the acquittal of Mr Fhimah and conviction of Mr al-Megrahi;
*the rejection of the first appeal;
*the Scottish Criminal Cases Review Commission's referral of Mr Al-Megrahi's case to the Court of Appeal;
*the dropping of this second appeal;
*the compassionate release of Mr al-Megrahi.
Each and every one of these matters is within "the jurisdiction of Scots law and the remit of the Scottish Government".
Reason 2 "The Scottish Justice Secretary made it clear that under the powers devolved to Holyrood no worthwhile scrutiny could be ordered here because there would be no powers to compel witnesses." (http://www.eveningtimes.co.uk/macaskill-tells-world-why-he-freed-megrahi-1.982718)
Answer An inquiry constituted under the Inquiries Act 2005 (www.legislation.gov.uk/ukpga/2005/12/contents) does have power under sections 21, 22 and 28 to compel witnesses and to compel the production of documents and other evidence. Indeed, the relevant powers of such an inquiry are greater than those of the Scottish Criminal Cases Review Commission under sections 194H and 194I of the Criminal Procedure (Scotland) Act 1995. Yet, with even its limited powers, the SCCRC was able to conduct a wide-ranging investigation into the Megrahi conviction, involving the interview of many witnesses and the consideration of thousands of documents and other items of evidence, and to reach conclusions based thereon.
Subscribe to:
Comments (Atom)