... this is grubby stuff

[The following is an excerpt from an item posted earlier today by bensix (a frequent commentator on this site) on his blog Back Towards The Locus.]

Those of you who’ve followed my pieces on Lockerbie may not be too surprised to hear that there’s been no real progress. In a culture of frenetic, fevered news updates one might imagine that important things can be distinguished by how much airtime and column space they’re given. This is a bit like thinking you can winkle out the deepest insecurities of a person as they’ll always talk about them.

Anyway, the Scottish Government first claimed they didn’t have the power to hold an inquiry into Megrahi’s conviction. Now, as hundreds of people and the Scots [Public] Petitions Committee echo Justice for Megrahi's call they’ve admitted that they do have the power to – just not enough for it to be effective. And besides, they add, perhaps thinking if no one’s called their bluff so far they’ll get away with anything, “the Government does not doubt the safety of the conviction of Mr Al-Megrahi".

Alas ... not only was the verdict based on meagre and largely discredited evidence, it was disputed by the Scottish Criminal Cases Review Commission. And if the SCCRC could reach that bold conclusion with the power it wields why can’t the Scottish government? It’s akin to a hulking bodybuilder moaning that he can’t possibly lift a weight while his younger brother gaily juggles with it in the background. Even if the verdict was sincere this is grubby stuff.

Justice for Megrahi's reaction to Scottish Government's response to petition

The text of Justice for Megrahi's written response to the Scottish Government's letter to the Scottish Parliament's Public Petitions Committee about the petition calling for an independent inquiry into Abdelbaset Megrahi's conviction, is to be found here on the website of Scottish lawyers' magazine The Firm. The accompanying news item can be read here.

Christine Grahame MSP returns to the charge

Following the uninformative answer to her earlier Parliamentary Question regarding the Scottish Government's intention to remove the SCCRC consent requirement by primary legislation rather than simply by Statutory Instrument, Christine Grahame MSP (SNP) seeks clarification with the following written questions:

S3W-38797 Christine Grahame: To ask the Scottish Executive, further to the answer to question S3W-38294 by Kenny MacAskill on 11 January 2011, whether the same convention rights of individuals and international obligations attaching to information provided by foreign authorities would have to be taken into account whether the order were amended by primary legislation or by statutory instrument.

S3W-38798 Christine Grahame: To ask the Scottish Executive, further to the answer to question S3W-38294 by Kenny MacAskill on 11 January 2011, whether it can confirm that considerations in relation to data protection legislation are not relevant in this case given that section 194K(4) of the Criminal Procedure (Scotland) Act 1995 ensures that, where Scottish Criminal Cases Review Commission disclosure is permitted by means of a statutory order, "the disclosure of the information is not prevented by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) arising otherwise than under that section."

S3W-38799 Christine Grahame: To ask the Scottish Executive, further to the answer to question S3W-38294 by Kenny MacAskill on 11 January 2011, whether it intends to bring forward primary legislation and, if so, whether it will specify the reasons for so doing rather than amending the order by means of a new statutory instrument.

Responses to Debra J Saunders

On 28 December 2010 the San Francisco Chronicle published an article by conservative columnist Debra J Saunders headlined "Libya, Lockerbie and commercial warfare" which I referred to at the time in this post. Today on his blog The Lockerbie Divide Caustic Logic publishes two responses to Ms Saunders's article, one from Michael Follon and one from Caustic Logic himself. They can be read here.

Scottish Government obfuscation over removal of SCCRC consent requirement

Christine Grahame (South of Scotland) (SNP): To ask the Scottish Executive whether it will introduce a further statutory instrument amending the Scottish Criminal Cases Review Commission (Permitted Disclosure of Information) Order 2009 to delete Article 2(b). (S3W-38294)

Mr Kenny MacAskill: The Scottish Government intends to bring forward legislation to allow the Scottish Criminal Cases Review Commission to publish a statement of reasons in cases where an appeal is abandoned, subject of course to legal restrictions applying to the Commission such as data protection, the convention rights of individuals and international obligations attaching to information provided by foreign authorities. (11 January 2011)

[What Christine Grahame was seeking to discover was why the Scottish Government was proposing primary legislation (ie an Act of the Scottish Parliament) to remove the requirement in the 2009 Disclosure Order that the suppliers of information to the SCCRC had to consent to its release, when the requirement itself had been imposed by secondary legislation (ie a Statutory Instrument) and could be removed in precisely the same way. Kenny MacAskill signally fails to answer that question.

The reference in the written answer to convention rights and international obligations is entirely superfluous: such rights would continue to apply whether the consent requirement were removed by primary or secondary legislation. The reference to data protection is a complete red herring. Section 194K(4) of the Criminal Procedure (Scotland) Act 1995 (an Act of the UK Parliament) specifically provides that where SCCRC disclosure is permitted by a Statutory Instrument (inter alia) "the disclosure of the information is not prevented by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) ..." This means that UK data protection legislation, or any other legislative or common law obligation of secrecy, is no bar to disclosure. (The references in the 1995 Act to the Secretary of State and to the UK Parliament must now, by virtue of the general transfer of powers provisions of the Scotland Act 1998, be read as references to the Scottish Ministers and the Scottish Parliament respectively.)]

Negotiation of the UK-Libya prisoner transfer agreement

This was the subject of an adjournment debate yesterday in the House of Commons, sitting in Westminster Hall. Nothing new emerged. The Hansard report can be read here, starting at column 53WH. A press report from Kent News can be read here and one on the Your Shepway website can be read here.

Wafer-thin pretext for inaction

The Scottish lawyers' magazine The Firm runs on its website today an article containing the full text of the Scottish Government's belated response to the Scottish Parliament's Public Petitions Committee on the Justice for Megrahi petition, along with a reaction from me.

Massacre of the innocents? Flaws in US justice

[This is the heading over a recent article on the AskWhy! Blogger website, principally about the Innocence Project which campaigns to overturn miscarriages of justice in the United States (the UK equivalent is the Innocence Network). The article reads in part:]

Much US justice, especially in emotion loaded cases, is concerned with having a victim, not catching the real criminal. People want to feel exonerated that someone, anyone, has been punished for what they think is a heinous crime. A conviction will convince them the punishment is just, though they have no idea of the strength of the evidence presented.

That is so in the Lockerbie case, the destruction of an airliner for which Abdul Baset Al Megrahi was convicted. The case against him is extremely thin, and looks to have been brought because it suited the US authorities to pin the outrage on to Libya. The conviction does not look just, and unless justice is seen to be done, no one should pretend it is just.

Megrahi inquiry delay sparks anger

[This is the headline over an article by Bob Smyth in today's edition of The Sunday Post. It does not appear on the newspaper's vestigial website. The article reads as follows:]

The Scottish Government has been criticised over its dealings with an influential parliamentary committee.

Holyrood's Public Petitions Committee finally received answers over ministers' refusal to hold an inquiry into the Lockerbie case on Friday -- a month after the deadline.

The response came after The Sunday Post quizzed the Scottish Government on the delay.

Before the late reply arrived, the campaigners behind the petition slammed the hold-up and a member of the committee also hit out.

Justice for Megrahi, who believe bomber Abdelbaset al Megrahi was the victim of a miscarriage of justice, have demanded the inquiry.

The campaigners met the committee on November 9 to highlight their petition calling for a probe into the bombing and the conviction of Megrahi. The group includes Lockerbie relatives, Archbishop Desmond Tutu, TV journalist Kate Adie, retired politician Tam Dalyell and Professor Robert Black, who was central to the setting up of the Lockerbie trial.

The Scottish Government has always refused an inquiry, saying it's beyond their jurisdiction.

Justice for Megrahi secretary Robert Forrester said, "We want them to have an inquiry about the matters that come under Scotiish jurisdiction, such as the police investigation, Megrahi's trial and appeal and his release. (...)

"They were supposed to respond to the committee by December 10 but didn't."

Committee member Cathie Craigie [MSP, Labour] said, "It's very concerning if the Scottish Government is not engaging with the proper process and responding within the timescale. They have an army of civil servants."

The Scottish Government reply said, "The Government’s view is that the petition is inviting the Scottish Government to do something which falls properly to the criminal justice system -- inquire into whether a miscarriage of justice has taken place.

"The Inquiries Act 2005 provides that, to the extent that the matters dealt with are devolved, and criminal justice is devolved, the Scottish Government would have the power to conduct an inquiry.

"However, the wide ranging and international nature of the issues involved (even if the inquiry is confined to the trial and does not concern itself with wider matters) means that there is every likelihood of issues arising which are not devolved, which would require either a joint inquiry with or a separate inquiry by the UK government."

Legal expert Professor Robert Black said, "The Scottish Criminal Cases Review Commission has no jurisdiction and powers outwith Scotland. Yet it managed to conduct an investigation into the Megrahi conviction that enabled it to reach the conclusion that the conviction might have amounted to a miscarriage of justice.

"There is no conceivable reason why a Scottish inquiry under the Inquiries Act should have less success in obtaining and uncovering evidence."

Birmingham Six campaigner questions guilt of Lockerbie bomber

[This is the headline over a report in today's edition of the Sunday Mail. It reads in part:]

A politician who helped secure the release of the Birmingham Six and Guildford Four says he fears the Lockerbie bomber's conviction is unsafe.

Ex-MP Chris Mullin also says he believes Abdelbaset al-Megrahi's sentence could have been quashed if he had appealed.

Mullin revealed in his newly released volume of diaries that he was asked by Labour colleague Tam Dalyell to get involved in a campaign to clear cancerstricken Megrahi's name. (...)

Mullin told the Sunday Mail: "I have no detailed knowledge of the case, although I am aware his conviction hangs by a thread and that much of the evidence points elsewhere.

"Alas, the proposition will never be tested since he abandoned his appeal in favour of early release."

Mullin's critically-acclaimed diaries, which cover his life as a Labour backbench MP between 2005 and 2010, reveal the approach from Dalyell six years ago.

In 2009, as the row over Megrahi's release rumbled on, Mullin wrote: "The latest instalment of a foolish game that's been going on since the release of Abdelbaset al-Megrahi, the man convicted of the Lockerbie bombing, on the grounds that he is dying of cancer.

"The more interesting issue, upon which almost no one has touched, is whether or not Megrahi had anything to do with Lockerbie.

"The case against him was wafer-thin and he had an appeal pending which might have resulted in his conviction being quashed." (...)

[Mullin] was a central figure in the campaign to free the Birmingham Six and Guildford Four following their wrongful convictions in the 70s.

Government is criticised over delay in reply to Megrahi queries

[This is the headline over a report in today's edition of The Herald. It reads in part:]

Campaigners calling for an inquiry into the conviction of Abdelbaset Ali Mohmed al Megrahi for the Lockerbie bombing have criticised the Scottish Government for a delay in responding to a request for information from one of Holyrood’s own committees.

The Scottish Parliament’s Public Petitions Committee wrote to the Government in November after hearing evidence from the Justice for Megrahi group, which submitted a petition bearing the signatures of 1646 people backing an independent inquiry.

Ministers were asked to respond by December 10, but the committee only received a response to its questions last night, a month after the deadline.

In it, the Government restates its position that any inquiry would be beyond the jurisdiction of Scots law and its own remit.

Robert Forrester, secretary of Justice for Megrahi, who stressed that he was speaking personally because the committee had yet to convene to discuss the response, said it was “inadequate.”

He said: “Clearly it has taken an extremely long time for them to put together, so far as I can see, a rather inadequate response. The Government has been saying repeatedly that they don’t have the power to open an inqury by saying it is beyond the power and remit of the Scottish Parliament.

“I personally don’t see why an inquiry cannot be opened.” (...)

The committee, led by convener Rhona Brankin, asked the Government whether it would open an independent inquiry or if it would provide detailed reasons for not doing so, including citing any legislation that prevents the Scottish Government from holding an inquiry.

The Petitions Committee has also received submissions from Professor Robert Black QC, the architect of the Lockerbie trial at Camp Zeist in the Netherlands, which suggest there are previous examples of inquiries into judicial decisions. (...)

AL Kennedy, James Robertson, Len Murray and Ian Hamilton QC signed the petition calling for an inquiry into the conviction of Megrahi, who was found guilty of causing the deaths of 270 people when Pan Am flight 103 exploded over Lockerbie in December 1988. A Scottish Government spokesman said: “Following the announcement last month that the Scottish Criminal Cases Review Commission has been unable to secure the necessary consents to release its statement of reasons in the Megrahi case due to the constraints of the current legislation, we are now considering legislation to overcome the problems presented by the current consent provisions.”

[The Scottish Government does not and cannot contend that it lacks the powers to set up an inquiry into the Lockerbie invesigation and prosecution and Abdelbaset Megrahi's conviction. These are all matters within devolved jurisdiction. What it says is this:

"The Inquiries Act 2005 provides that, to the extent that the matters dealt with are devolved, and criminal justice is devolved, the Scottish Government would have the power to conduct an inquiry. However, the wide ranging and international nature of the issues involved (even if the inquiry is confined to the trial and does not concern itself with wider matters) means that there is every likelihood of issues arising which are not devolved, which would require either a joint inquiry with or a separate inquiry by the UK government."

This is nothing more that a wafer-thin pretext for inaction. The Scottish Criminal Cases Review Commission has no jurisdiction and powers outwith Scotland. Yet it managed to conduct an investigation into the Megrahi conviction that enabled it to reach the conclusion that, on six separate grounds, that conviction might have amounted to a miscarriage of justice. There is no conceivable reason why a Scottish inquiry under the Inquiries Act 2005 should have less success in obtaining and uncovering evidence.]

Government Lockerbie documents to be released a few years early

[The following are excerpts from a report in today's edition of The Daily Telegraph.]

Secret files on the downfall of Margaret Thatcher will be made public in just five years as the Government cuts the amount of time that records remain confidential.

Sensitive official documents on the Poll Tax riots, the miners’ strike, the Westland helicopter affair and the Lockerbie disaster will also be published far sooner than they would have been under the old 30-year rule. (...)

Under the Public Records Act 1958, government papers are currently declassified 30 years after being written, and made available in an annual batch by the National Archives at Kew. (...)

Starting in January 2013, two years’ worth of classified files will be published each year for a decade so that by 2023, the records will be only 20 years behind the events they describe rather than 30.

This will mean that 2014 – just three years from now – will see the publication of Cabinet discussions on the miners’ strike of the mid-1980s, the Westland helicopter affair that led to Michael Heseltine’s resignation and the Chernobyl nuclear disaster.

Just months before the planned general election in May 2015, the public could see sensitive information about the Hungerford massacre and the terrorist downing of a passenger jet over Lockerbie. (...)

Under the new plan, certain records could be released before others while details of Government communications with senior members of the Royal family are likely to remain hidden either for 20 years or until five years after the death of the individual concerned.

"I fear for what is happening to the administration of justice"

[The above is the first sentence of an article posted today on Ian Hamilton QC's blog. The full text reads as follows:]

I fear for what is happening to the administration of justice. I blame the SNP because they are the government. It started under Labour so an election will make no difference. Here are examples of what I fear.

In the Megrahi case it emerged after conviction that a foreign state had given massive bribes to a vital witness or to witnesses.

It emerged that a vital fragment of the fuse relied on for the conviction had never been tested for explosive residue, a vital test in any explosives case.

More recently, and in another case. A journalist heard of the existence of a recording. He bought it from the holder, who later gave evidence. Why were the police not told of the tape so they could get a warrant and seize and investigate it? Why was the journalist not rebuked for interfering with the administration of justice?

In the same case a recording of a police interview was handed by someone to the BBC who used it in a broadcast. Tapes of police interviews are always confidential; yet it appears there is to be no enquiry into how this tape got into BBC hands and why they used it. It was, I think, a production in a case. It is contempt of court to make off with a production and to reset it. Why are the BBC not to be prosecuted?

Lastly and most sinisterly of all is the crown office’s attitude to the press. We only have two reliable investigative journalists in Scotland. One is Kenneth Roy with his Scottish Review. He is pursuing the matter of the BBC recording into a wall of silence. Good for you Kenneth.

The other is Steven Raeburn, editor of The Firm. It is our only legal magazine. It is read by most of Scotland’s lawyers. A free and informed legal press is of vital importance in the preservation of a proper administration of justice. (I air my grievance. At 85 I shouldn’t have to be writing this. The Lord Advocate should have dealt with these matters as they occurred.)

Now here is the really frightening thing. The Crown Office is refusing to answer any questions from Steven Raeburn. They do not like what he writes. They are holding him incommunicado. The legal profession is thus kept in the dark about the things that matter most. The things that matter most in any government department are the things the department don’t want anybody to hear about.

I have been critical of Elish Angiolini’s culture of secrecy in the past. She is the Lord Advocate. She is a member of the government. I now make my accusation wider. I now accuse the Scottish Government of living in a cocoon of fear, a cocoon of its own making; a fear of its own making. Can Alex Salmond not control his Lord Advocate?

Why is the Lord Advocate silent? Why will she not permit her own department to speak to the only journalist who speaks to the whole legal profession?

Secret justice is fascist justice. Secret justice is a danger to us all.

[The influential media magazine The Drum features this story on its website. It can be read here.]

Attack on Pan Am flight 103

[This is the headline (translated into English) over a letter published today, the feast of Epiphany, on the website of the Spanish newspaper El Correo from Marina de Larracoechea, the sister of one of the flight attendants killed in the Lockerbie disaster. An English translation, with help from Google Translate, reads as follows:]

Dear Kings: In 2010 I was even better than the previous year, impossible though that may seem. I worked hard with dedication and sacrifice, especially for truth and justice in the case of the destruction of Pan Am flight 103 where my sister Nieves was murdered, along with 269 other equally precious and irreplaceable lives. This carnage, politically induced, announced and expected, occurred on December 21, 1988 over Lockerbie, Scotland. Others, mainly government officials, diplomats and big businessmen had precise prior knowledge that had helped them to change their flight and save their lives. Silence reigns over this and other important aspects.

On 21 December we passed the psychological barrier of 22 years, and just as happens with financial indexes, so the forces at work have obscenely closed our case, in a market of political and financial agendas, by a silence of convenience.

I ask the following gifts: Truth and Justice for Pan Am 103 and so an end this ordeal; peace for everyone in the world and for us in particular; a lot of help, solidarity and respect for the victims; health to continue fighting with even more determination; a little good fortune to help us bear with dignity the enormous burden of these 22 years; a load of charcoal for some of the very evil characters who lead this world into war, death, hatred, poverty and suffering, preserve their impunity and obstruct truth and justice in the Pam Am 103 case and deny our rights. I do not give names now because you are Magi and you know everything. This letter is similar to last year's but that is because it has brought almost nothing that I asked for.

Money has no place in Scots justice

This is the headline over an article by Ian Hamilton QC about payments made to witnesses in the Tommy Sheridan perjury trial which is published today on the website of Scottish lawyers' magazine The Firm. One paragraph reads as follows:

"Never in the history of Scots law has the crown adduced witnesses who have been paid, or promised payment, by a third party in connection with their evidence. Why were they adduced in this case? The Lord Advocate must explain why."

Of course, it now appears that such witnesses were adduced by the Crown ten years ago in the trial of Abdelbaset Megrahi and Lamin Fhimah in the Scottish Court at Camp Zeist. This formed the subject of paragraph 3.1.7 of Megrahi's Grounds of Appeal in the appeal that was abandoned in August 2009. Ian Hamilton recognises this in his article when he states:

"Purchase of witnesses has no place in Scots law. Indeed payment by the Americans of witnesses in the Megrahi case is one of the things that make many people think the conviction is unsafe."

[My own understanding of the present state of Scottish criminal procedure is that there is no bar on, or necessary impropriety in, the Crown's leading the evidence of a witness who has been paid, or has been promised payment, by a third party. What is grossly improper -- and is alleged to have happened in the Lockerbie case -- is concealing from the defence and the court the fact that such payment has been made or promised, since it is a factor highly relevant to the court's assessment of the witness's credibility.]