Statement from Lord Trefgarne and Professor Black

In 1993 Lord Trefgarne approached Professor Black (having been given his name by the then Dean of the Faculty of Advocates) for advice in determining whether there was any legal mechanism whereby the impasse could be resolved that had resulted from the UN Security Council’s demand that the two Libyan suspects be handed over for trial in Scotland or the United States and Libya’s refusal to do so on the grounds that Libyan law did not permit the extradition of its nationals for trial overseas. Over the course of the next six years, Lord Trefgarne and Professor Black worked strenuously to secure acceptance of the neutral venue scheme that Professor Black formulated in early 1994. No payment was sought or received for these endeavours. It was only after Abdelbaset al-Megrahi’s conviction at Zeist in January 2001 and Professor Black had publicly expressed the strong view that that conviction was legally unwarranted [RB: eg on the BBC HARDtalk programme the week the verdict was returned; and in an article in the May 2001 issue of the Edinburgh Law Review] that an agreement was entered into with his lawyer, Dr Ibrahim Legwell, that Lord Trefgarne and Professor Black should receive payment for future political and legal advice on avenues of appeal.

In the event the only sum actually paid barely covered expenses. Lord Trefgarne and Professor Black again emphasise that this was an entirely proper arrangement reflecting the circumstances of the time.

Lord Trefgarne did declare this matter in the House of Lords Register in accordance with the rules then in force.

[This statement is issued in the light of forthcoming publication of a letter sent in 2007 by Lord Trefgarne to Saif al-Islam Gaddafi seeking his assistance in securing the payments envisaged in the agreement with Dr Legwell. No such payments were made (apart from a sum which barely covered the expenses which had been incurred by Lord Trefgarne in funding various trips to Libya for consultations).

The story features (behind the paywall) in the 11 September edition of The Sunday Times.  A news agency report from The Press Association can be read here.  A report published on 13 September on the website of The Times (behind the paywall) contains the following:]

The peer admitted today that he had registered his work on behalf of the bombers in just 2003 and 2004 in the Lords’ register of interests despite acting as an advisor for al-Megrahi’s legal team until 2007. 

In a personal statement to the house he will say: “I accept that although the business to which the letter refers was correctly entered in your Lord’s records in 2003 it was removed in 2005, which was clearly premature. I also accept that the use of Lord’s writing paper was inappropriate.”

The letter to Saif, which was discovered by The Sunday Times, referred to “fees owed over a considerable number of years prior to September 2001”. 

The fees were owed by Ibrahim Legwell, a Tripoli-based lawyer who represents al-Megrahi, the only person to be convicted for the 1988 Lockerbie bombing which killed 270 people. (...)

In a statement after the discovery of the letter Lord Trefgarne and Professor Black said that no payment had been sought for advice prior to al-Megrahi’s conviction in January 2001. (...)

He told The Times the money he actually received in relation to the al-Megrahi case, which was paid unexpectedly directly into his bank account, “barely covered expenses” and that his letter to Mr al-Islam produced no results. (...)

He said he had been “confused” in his letter to Mr al-Islam in seeking money for work carried out prior to 2001.

Clegg "a two-bit opportunist" over Megrahi

[The following is one paragraph from a column by Ian Jack in today's edition of The Guardian headed There is a new, unexpected feeling in Scotland: a pity for the state of England:]

From its beginnings, modern Scottish nationalism at its demotic level has fed from ideas of victimhood, or what Annabel Goldie, the leader (still) of the Scottish Tories, once called the culture of "girn and grievance". It would be unwise to imagine this has vanished for good; there may be all kinds of London-Edinburgh quarrels between now and the referendum on independence in which the finger of blame is pointed firmly south. But at the moment, from the Scottish perspective, England looks a more fractious, turbulent and uncertain society. Its innovations look like stunts; while Scotland plans to save money by amalgamating police forces, for example, England's route to efficiency is by electing police commissioners. Its politicians are both shriller and more callow. When Nick Clegg called for the dying Abdelbaset al-Megrahi to be re-imprisoned, Salmond calmly pointed out that it was undesirable on compassionate grounds, and in any case impossible, because Libya's transitional government would never agree to it. Clegg came out of the exchange like a two-bit opportunist at the Oxford Union.

Correspondence between Megrahi and a US Lockerbie relative

 [The following are excerpts from a report published yesterday on the website of Assist News Service:]

Just weeks after members of Congress in the US had called for Abdel Basset al-Megrahi to be transferred back to Scotland to serve the remainder of his sentence, he was found in his home in Tripoli in a coma and on life support. (...)

With his continued survival an additional two years [after his compassionate release], several of the American Lockerbie family members began calling for his return to prison and enlisted the support of members of Congress in their efforts. 

Lisa Gibson, who lost her brother Kenneth on the 1988 terrorist bombing of Pan Am flight 103 has taken a different approach. She made a decision to forgive Megrahi and sent him a letter in June 2004 saying that “Only God knows if you are really responsible. But as a Christian I need to forgive you.” 

Megrahi sent her a letter back in July 2004 saying he was sorry for her loss, that he could tell she was a religious person and that, like her, he has a family and would never commit such a horrific act.

He quoted scriptures, both from the Bible and the Quran, believing one day he would be proven innocent. He cited Luke 18 in his letter which says, “Listen to what the unjust judge says and will not God bring about Justice for his chosen ones who cry out to him day and night? Will he keep putting them off? I tell you He will see that they get justice and quickly.”

Megrahi closed the letter by saying, “Madam, I pray for you to be happy in your life and suffer no such sadness in the future. I pray that there will be love amongst all mankind and for peace on Earth for God is peace, goodness and in God we find eternal happiness.” (...)

When news came out about the decision to release Megrahi on compassionate grounds Gibson was the lone voice supporting the decision. It went with her consistent desire and belief that the only effective way to fight hate and evil is to walk in the opposite spirit of love. She saw it as the honorable way to respond. In 2010, she asked visit him in Libya, but his health was failing and he declined the request.

 
“I believe justice is about deterring future bad behavior more than being purely punitive. I saw no evidence that Megrahi was a danger to society,” said Gibson, a Christian attorney based in Colorado Springs, Colorado. “So, what good would it serve by requiring him to die in prison. The moral high ground is to allow him to die with dignity, even if he really was responsible for our families’ death. When I heard the news at Megrahi was in a coma and close to death it gave me peace to know that they made the right decision to release him on compassionate grounds, ” Gibson said.

Pilger on Libya and Megrahi

[The following is an extract from an article by John Pilger published yesterday on the Information Clearing House website:]

Gone from the Murdoch press are pejorative "insurgents". The action in Libya, says The Times, is "a revolution... as revolutions used to be". That it is a coup by a gang of Muammar Gaddafi's ex cronies and spooks in collusion with Nato is hardly news. The self-appointed "rebel leader", Mustafa Abdul Jalil, was Gaddafi's feared justice minister. The CIA runs or bankrolls most of the rest, including America's old friends, the Mujadeen Islamists who spawned al-Qaeda.

 

They told journalists what they needed to know: that Gaddafi was about to commit "genocide", of which there was no evidence, unlike the abundant evidence of "rebel" massacres of black African workers falsely accused of being mercenaries. European bankers' secret transfer of the Central Bank of Libya from Tripoli to "rebel" Benghazi by European bankers in order to control the country's oil billions was an epic heist of little interest.

The entirely predictable indictment of Gaddafi before the "international court" at The Hague evokes the charade of the dying "Lockerbie bomber", Abdelbaset Ali Mohmed al-Megrahi, whose "heinous crime" has been deployed to promote the west's ambitions in Libya. In 2009, al-Megrahi was sent back to Libya by the Scottish authorities not for compassionate reasons, as reported, but because his long-awaited appeal would have confirmed his innocence and described how he was framed by the Thatcher government, as the late Paul Foot's landmark expose revealed. As an antidote to the current propaganda, I urge you to read a forensic demolition of al-Megrahi's "guilt" and its political meaning in Dispatches from the Dark Side: on torture and the death of justice (Verso) by the distinguished human rights lawyer, Gareth Peirce.

Libyans will hand over any new Lockerbie evidence - Salmond

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

Alex Salmond said the Scottish Government had made contact with the Libyan National Transitional Council in an attempt to ensure that any intelligence uncovered about the Lockerbie bombing is passed to the Scottish authorities.

 

The First Minister said the Scottish Government had been in touch with the council, which had indicated that it would keep communication lines open with Scotland regarding the mass murder of 270 people in flight Pan Am 103.

He was responding to a question at First Minister's Question Time from Christine Grahame, the SNP MSP who believes in the innocence of Abdelbaset Ali Mohmed al-Megrahi, right, the Libyan intelligence agent convicted of the crime.

Mr Salmond confirmed that contact had been made with the Transitional Council before adding: "This is an open investigation as the Crown Office has always made clear and they along with the police will continue to pursue any lines of inquiry that may arise.

"That of course would refer to protection of any evidence that would shed light on this issue. Now the National Transitional Council have indicated a willingness to maintain contact on this issue. They did make quite a reasonable point I think that they have an immediate focus in Libya of restoring civil order and to rebuild services as the current conflict draws to a close."

Police officer identified by Bella Caledonia is not "the golfer"

[With his permission, I reproduce here an email that I received this afternoon from George Thomson:]

I follow your blog with keen interest.  Normally I remain on the sidelines which can be frustrating.  In relation to the allegation that [******] was the Golfer, I am in a position to refute that notion completely.
  

It was I who first approached the Golfer having been pointed in his direction by another officer.  I took the initial statements from the Golfer and was in contact with him for some time.

At our very first meeting I gave him my word that I would never reveal his identity and I have always stood by that promise. 
 

I think that it is fair however to break cover a wee bit in this instance and come to the recue of Mr [******].  I can state categorically that he was not the Golfer. 

[The relevant page appears now (after the appearance of this blog post) to have been removed from the Bella Caledonia website.]

The ill-feeling towards al-Megrahi is unworthy of us

[This is the headline over a column in the Scottish edition of The Times today by Magnus Linklater, the newspaper's Scotland Editor (and the editor of The Scotsman in the bygone days when that title was still a serious and responsible journal). The column (behind the newspaper's paywall) reads in part:]

A man lies dying in his bed, breathing with difficulty as the monitor to which he is linked records an uncertain heartbeat. His mother, her face stricken with grief, strokes his hand. Outside the house, his son, speaking in halting English, asks for compassion.

But that, of course, is the one commodity that this wretched man is denied. For the patient is the Libyan bomber, Abdul Baset Ali al-Megrahi, and he has the blood of 270 innocent people on his hands. Vilified on all sides — by the families of the Pan Am victims, by those who see him as the symbol of a discredited regime, by some who suspect the machinations that secured his release and by others who cannot forgive him for living so long — he is deprived of the basic humanity that should be the right of any dying man.

Al-Megrahi’s end, when it finally comes, drives home the futility of the Scottish government’s decision to release him. It claims to have exercised compassion in sending al-Megrahi home to die. Yet in death he is accorded none; instead he has been rendered an object either of curiosity or contempt. If, when the onset of his prostate cancer had been confirmed, the Scottish Justice Secretary, Kenny MacAskill, had done the right thing and moved him to a hospital bed in Scotland to die, al-Megrahi would indeed be ending his life with some dignity.

Instead, he has lingered on, long beyond his allotted time, so that even the government that secured his release finds him an embarrassment. Meanwhile, to campaigners and zealots alike, he has become a political football — kicked around by some who demand his release, by others who believe he should be seized and taken back to face his accusers.

This, by the standards of Western democracy and common humanity, is unworthy. Whatever his crimes, al-Megrahi should be allowed a decent death. The latest footage of him, screened by the BBC, should leave no one in doubt that he is nearing the end. This will, of course, do nothing to reduce the arguments about his case and about the atrocity itself. Nor should it. The anguish of the American families remains to be assuaged; we have not heard the last of the weasel attempts by various British agencies to ensure that he was returned to Libya by fair means or foul; there are Scottish documents that examine whether his conviction was safe or not.

The question of al-Megrahi’s guilt or innocence remains to be finally established. But the man himself is beyond this. His crimes will now be judged, as Mr MacAskill once said, “by a higher power”. Meanwhile, he should be allowed to die in peace.

Releasing SCCRC Megrahi report "a real wild card"

[In today's edition of The Herald columnist Iain Macwhirter writes about potential pitfalls for the SNP government of Scotland.  The following are brief extracts:]

Yesterday we saw a triumphant First Minister, Alex Salmond, unassailable leader of a united party with an unassailable majority in Holyrood, presenting a populist legislative programme to a parliament of basket cases. If they make a mess of this the SNP will have no one to blame but themselves. (...)

So, as I say: what can possibly go wrong? Well, plenty. (...)

Releasing the Scottish Criminal Cases Review Commission report into the prosecution of Adelbaset Ali Mohmed al Megrahi – currently dying on live TV in Tripoli – is a real wild card. Everyone knows that it raised questions about the guilt of the man convicted of the Lockerbie bombing. It may well be that there was a miscarriage of justice in Camp Zeist in 2001. But throwing the focus of the world’s media back on this affair is a risky move, given that half the world now believes that England and Scotland jointly conspired to spring Megrahi in order to save oil contracts and avert a “holy war” against the UK. Leave well alone.

[Mr Macwhirter need have no worries on this score. If the legislation is as limited as we have been led to believe, and if the SCCRC is given discretion to decide what should be released, there is no realistic prospect of anything really embarrassing emerging.  Here is The Herald's own analysis of the proposed legislation:]

Criminal Cases (Punishment & Review) (Scotland) Bill

Gives statutory authority to the Scottish Criminal Cases Review Commission to decide whether it is appropriate to publish a Statement of Reasons in cases they have investigated where an appeal has subsequently been abandoned.

Analysis

This is the reform which will allow the Commission to publish information on why Abdelbaset Ali Mohmed al Megrahi’s appeal against his conviction for the Lockerbie bombing was withdrawn, though it will, of course, apply to all cases. [RB: The purpose of the legislation is NOT to allow the reasons for withdrawal of the appeal to be disclosed, but to allow publication of the SCCRC's reasons for concluding that there might have been a miscarriage of justice and therefore allowing that appeal to be brought.]

Under the current law the commission is prohibited from disclosing information it holds relating to cases other than in very limited circumstances.

The bill requires the commission, in determining whether it is appropriate to publish information, to consult those affected by it.

It also maintains “appropriate provision” for international obligations to information provided by foreign authorities so that where information is obtained under international assistance arrangements from a foreign country, the consent of that country is required before the commission can publish the information.

Lockerbie: US demands Libya co-operation

[This is the headline over a report published last night on the Sky News website.  It reads in part:]

US officials are threatening to block the unfreezing of Libyan assets without more cooperation from rebels over the Lockerbie bombing. 

Senators are introducing the Pan Am 103 Accountability Act because of concerns Libya's rebel government is not serious about helping the US investigate the atrocity.

Senator for New Jersey, Robert Menendez, told Sky News the rebels seem to be changing their attitude on the issue in a worrying way.

"From the comments and commitments that were made to me and others to the comments that I have read subscribed to the TNC, it makes me concerned that they may not want to be co-operative," Mr Menendez said.

The move threatens to sour relations between Libya's new government and the US from the outset.

Senator Menendez was one of the senators leading efforts to approve US action against Colonel Gaddafi. (...)

He is demanding that American investigators are given access to Abdelbaset al Megrahi - who was convicted for the Lockerbie bombing and released on humanitarian grounds because he was believed to be dying of cancer.

But he believes there are many others in Libya who have vital information about the outrage.

He says Libya's rebels are talking the talk about cooperating on the issue but not delivering in concrete terms (...)

Transitional government Justice Minister, Mohammed al Alagi, told journalists in Tripoli: "We will not hand over any Libyan citizen. It was Gaddafi who handed over Libyan citizens," he said, referring to the government's decision to turn al Megrahi over to a Scottish court for trial. [RB: Gaddafi did not "hand over" Megrahi and Fhimah for trial. Libyan law does not permit the extradition of its own citizens for trial overseas. Megrahi and Fhimah voluntarily surrendered for trial.]

He said the request by American senators had "no meaning" because al Megrahi had already been tried and convicted.

Bella Caledonia claims to have identified "the golfer"

In an article posted this evening, the Bella Caledonia website claims to have identified "the golfer" -- the police officer involved in the Lockerbie investigation who has claimed that certain crucial evidence (relating to the timer fragment) was planted. I do not know whether the identification is correct, but the evidence and reasoning leading to it do not strike me as wholly persuasive.

Criminal Cases (Punishment & Review) Bill

[The following is an excerpt from a report on the BBC News website about the proposed legislation contained in the Scottish Government's Programme for Government 2011-2012, which was published today:]

The body which investigates possible miscarriages of justice - the Scottish Criminal Cases Review Commission - will get powers to decide whether to publish reports in appeal cases it has looked into, where such appeals have been abandoned.

The bill essentially relates to an SCCRC report into the Lockerbie bomber case.

The commission previously referred Abdelbasset al-Megrahi's conviction to the Court of Appeal, although Megrahi, who is terminally ill with cancer, later dropped his appeal before being released on compassionate grounds to return home to Libya.

[Oh dear, oh dear.  "Powers to decide", forsooth.  Why does the proposed  legislation simply allow the SCCRC to consider release of the Statement of Reasons in the Megrahi case, rather than requiring it to do so? I think we should be told.  And this is quite apart from the fact that an Act of the Scottish Parliament isn't needed in the first place.]

Libya 'granted oil concessions to BP on understanding Lockerbie bomber Megrahi would return home'

[This is the headline over a report published this morning on The Telegraph website.  It reads in part:]

Libya's former foreign minister has said that Tripoli granted massive oil concessions to BP on the understanding the Abdelbaset al-Megrahi, the Lockerbie bomber, would be returned home.

Abdulati al-Obeidi told the BBC that Britain had accepted Libyan indications that Abdelbaset al-Megrahi’s release was an unwritten quid pro quo of the multi-billion pound contract. 

“There was a hint that releasing him would help but it was not a condition,” he said. “The Libyan side, and you know the British, they know how to take things”

Asked if an exchange of the prisoner was part of the talks, Mr Obeidi said: “This is what I think”.

BP secured one of the largest contracts to exploit Libyan oil reserves after Col Gaddafi’s regime came in from the cold. The contract was celebrated as part of Tony Blair’s infamous Deal in the Desert trip to Libya.

Last year BP admitted it pressed for a deal over the controversial prisoner transfer agreement amid fears any delays would damage its “commercial interests”, but denied it had been involved in negotiations concerning Megrahi’s release.

[Here is what I wrote on this blog on 28 January 2010:]

According to Jack Straw "the Libyans understood that the discretion in respect of any PTA application rested with the Scottish Executive." This is not so. In meetings that I had with Libyan officials at the highest level shortly after the "deal in the desert" it was abundantly clear that the Libyans believed that the UK Government could order the transfer of Mr Megrahi and that they were prepared to do so. When I told them that the relevant powers rested with the Scottish -- not the UK -- Government, they simply did not believe me. When they eventually realised that I had been correct, their anger and disgust with the UK Government was palpable. As I have said elsewhere:

"The memorandum of understanding regarding prisoner transfer that Tony Blair entered into in the course of the "deal in the desert" in May 2007, and which paved the way for the formal prisoner transfer agreement, was intended by both sides to lead to the rapid return of Mr Megrahi to his homeland. This was the clear understanding of Libyan officials involved in the negotiations and to whom I have spoken.

"It was only after the memorandum of understanding was concluded that [it belatedly sunk in] that the decision on repatriation of this particular prisoner was a matter not for Westminster and Whitehall but for the devolved Scottish Government in Edinburgh, and that government had just come into the hands of the Scottish National Party and so could no longer be expected supinely to follow the UK Labour Government's wishes. That was when the understanding between the UK Government and the Libyan Government started to unravel, to the considerable annoyance and distress of the Libyans, who had been led to believe that repatriation under the PTA was only months away."

[Among the Libyan officials with whom I discussed this matter at the time were Abdulati al-Obeidi, Moussa Koussa and Abdel Rahman Shalgam.

Scottish lawyers' magazine The Firm has published a news item on this issue which can be read here.]

Megrahi 'very sick', says his son

[This is the headline over a report just published on the BBC News website.  It reads in part:]

The son of the Lockerbie bomber has told the BBC that his family believe he is innocent of the atrocity and that one day everyone will know the truth.

The BBC was invited to the home of Abdelbaset al-Megrahi in the Libyan capital Tripoli.

His son Khalid al-Megrahi said he wanted to show the people of Scotland how sick his father was. (...)

Megrahi's son told the BBC's Middle East Editor Jeremy Bowen: "He is so sick. If you see him now and compare with before you will see his body has become very ill and weak."

He said Megrahi had stopped eating and was in a deep sleep most of the time.

Khalid al-Megrahi said: "I want everybody, especially in the UK and in Scotland to see my dad. 

"On the news some people say he is not sick and he is not at home. 

"I want you to see him, he cannot move from his room."

His son also insisted that Megrahi was not guilty of the Lockerbie atrocity.

He said: "He believes and we know that everybody will see the truth. I know my father is innocent and one day his innocence will come out."

Asked about the people who died in the bombing, he said: "We feel sorry about all the people who died. We want to know who did this bad thing. We want to know the truth as well."

[A report from The Press Association news agency contains the following:]

On Tuesday night, his son Khalid al-Megrahi said the family had allowed access to the BBC to their home in Tripoli to see how the cancer is affecting him.

In an interview with the BBC's Middle East editor Jeremy Bowen, he said: "He's very ill and he's now in deep sleep and he's stopped eating and we try to support him just by sitting next to him and we pray to God to stay as long as...

"I want everybody, especially in UK and specific in Scotland, to see my dad, how he's doing. He's so sick, because I see in the news some people say he's not sick and some people say he's not at home and some people say he's run away. But I would say I want you to come to see my dad and he can't move from his room."

The footage showed Megrahi lying on a bed with a machine monitoring his heartbeat. Last month Megrahi's relatives allowed a reporting team from American news channel CNN to enter the house and film him in his bed.

Speaking about the Lockerbie bombing, Khalid said: "I really feel sorry because we are the same, we have family and we have brother, we have sister and we feel sorry about all the people die but we want to know the truth as well."

Speaking on BBC Reporting Scotland from Tripoli, Mr Bowen said: "The son I spoke to has spent a lot of time in Scotland, he told me, and he speaks English well as a result of that and so he certainly believes that their message that he's a, sick, and b, innocent and c, dying, needs to get through."

A Scottish Government spokesman said: "Mr Al-Megrahi is an extremely sick man, dying of terminal prostate cancer, and matters regarding his medical condition should really be left there. It is in no one's interest for there to be a running commentary on Mr Al-Megrahi's medical condition, and we have no intention of providing one. As is abundantly clear, Scotland's Justice Secretary granted compassionate release to Mr Al-Megrahi according to the due process of Scots law, and without regard to any other factor."

An epistolary exchange

1.  1 August 2011

Dear Alex Salmond,

In its edition of April 9 the highly influential LexisNexis English law journal Criminal Law and Justice Weekly (vol 175, no.15, pp.221-228) carried an article I wrote about the Lockerbie trial entitled “Masking Justice With ‘Mercy’ ”.

Subsequently, in its numbers for July 16 and 23, CL&JW carried a two-parter by me entitled “Exploding Lockerbie” (sub-captioned “David Wolchover goes to the heart of why the trial court got it so wrong in the Lockerbie case”.)

I don’t know whether these articles have been brought to your attention but I am taking the liberty of attaching hereto the pdfs.

I should mention that I have been in practice at the English Bar for forty years and although now semi-retired I was for a number of years Head of Chambers at 7 Bell Yard, Temple Bar, London WC2A 2JR. I am the author of a number of legal text boooks and of numerous articles in a variety of law journals stretching back some 30 years. Please see my website for details (although the website text is five years old, is in need of updating and still includes no reference to the most recent text book of which I was a contributing co-editor, Witness Testimony, Oxford: OUP, 2006).

“Masking Justice with ‘Mercy’” mainly concentrated on the manifest deficiencies in the evidence of the Maltese witness Anthony Gauci, a topic I came to as an offshoot of my long term interest in the topic of witness interviewing by the police (see website for the titles of relevant articles).

Research for that article inspired a wider interest in the details of the case as a whole and “Exploding Lockerbie” was the result.

You will see that most of part 2 consists of an analysis of the evidence of what happened at Heathrow, focusing in particular on what flowed from the account by Pan Am baggage handler John Bedford of his encounter with the mysterious clone of the bomb-loaded Samsonite suitcase.

Obviously I assume that you are thoroughly familiar with much of the evidence in question but, at the risk of indulging in self-advertisement, I believe I am able to claim that my analysis of the Heathrow angle is unprecedented in its novelty and in the depth and breadth of its reasoning.

Although the judges accepted Mr Bedford’s evidence they treated it as irrelevant because they found that the bag noticed by him before the arrival of Pan Am feeder flight PA 103A was not in fact the bomb bag. They did so in spite of the fact that it was no more than about 3 inches from the position in the container AVE4041 in which the bomb bag was located when, according to the experts, the bomb exploded.  In determining that the bomb bag came from Luqa via Frankfurt they evidently lost sight of the fact that their finding implicitly depended on a series of improbable coincidences which in their totality amounted to nothing less than manifest absurdity. In the light of that central element in the whole trial al-Megrahi’s conviction is entirely unsustainable. 

I understand that you have been invited to institute an inquiry into the atrocity but that there may be procedural difficulties about this.

Might I respectfully suggest that your government would attract little criticism in the long run in releasing a detailed and reasoned pronouncement disavowing the conviction and repudiating the finding of the judges. Although I accept that this might involve difficult political ramifications I would hazard it would face no particular constitutional obstacles and in any event the circumstances are truly exceptional.

If, on the other hand, you are of the opinion that the judgment remains logically sustainable I would invite you to indicate to me the basis of your thinking, with hope making no reference to the mere ex officio authority of the trial judges and those presiding over the concluded appeal proceedings.

I am copying this to Kenny MacAskill and Frank Mulholland. 

I very much look forward to your personal response.

Yours sincerely, 
David Wolchover 

2.  30 August 2011 
Dear Mr Wolchover

Thank you for your e-mail of 1 August to Alex Salmond, First Minister. 

Regarding the conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.  I have been asked to reply. 

 

An independent judiciary is a cornerstone of Scottish justice.  It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case.  Mr Al-Megrahi was tried and convicted by a Scottish court before three judges and his appeal against conviction, heard by a panel of five judges, was unsuccessful.  A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi.

  

The Scottish Government has always been as open and transparent as possible in this matter which is why, following the announcement last December 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 now intend to bring forward legislation to overcome the problems presented by the current consent provisions.

This will 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.

On the broader questions of an inquiry, the Scottish Government do not doubt the safety of the conviction of Mr Al-Megrahi.  Nevertheless, there remain concerns with regard to some of the wider issues relating to the Lockerbie atrocity.  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. The Scottish Government would be entirely happy to co-operate fully with any such properly constituted inquiry.

Thank you for contacting us with your views. 

Lockerbie Team 

Scottish Government

3.  2 September 2011 

Dear Sir or Madam

I find myself obliged to address you as such because, although your letter was expressed in the first person you omitted to identify yourself by name or position.

Suffixed to the text of your message was a notice that “[t]he views or opinions contained within this e-mail may not necessarily reflect those of the Scottish Government.” I shall take it that on this occasion you were writing on their behalf.

May I begin by thanking you – whoever you are – for your response to my e-mail of 1 August to Alex Salmond.

I further express my thanks to you for the time and effort which you have taken on behalf of the Government of Scotland in formulating their reply.

You will not be surprised to learn that as a commentator in depth on the Lockerbie case and a practising criminal advocate of some four decades standing I was well aware of the various procedural aspects of this matter to which you advert. However, I was particularly struck by one stark proposition contained in your letter and I am writing for clarification.

In your letter you state:

“An independent judiciary is a cornerstone of Scottish justice. It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case.”

It might have been understandable if the Scottish Government had confined themselves to this position, albeit it is one which in the very special case of Lockerbie might be regarded as disappointing, not to say pusillanimous.

However, for the Scottish Government to declare, through your letter, that they “do not doubt the safety of the conviction of Mr Al-Megrahi” appears to be a very different proposition from tactfully abiding by a studied silence on the merits.

At the risk of being accused of pedantry, the self-effacing sentence “it is not for us to cast doubt” on such and such is qualitatively quite different from avowing “we do not doubt” that X is the case. On its most natural meaning the latter implies that the Government have formed a rational view of the case after due consideration of the relevant facts.

There will certainly have been no lack of opportunity to do so. The trial transcript, the trial and original appeal court judgements, and the court papers for the second, abandoned, appeal, are available for all to read and the Government’s copying arrangements will have facilitated easy access by cabinet members. It is difficult to believe that on such a vexed issue as Lockerbie some at least of the Scottish body politic have not made some effort to get to grips with the case details.

I would venture to claim that my two recent articles in Criminal Law and Justice Weekly (“Masking Justice with ‘Mercy’” and “Exploding Lockerbie”) which I attached with my August 1 e-mail, together offer a detailed, forensic, critique of the judgment warranting close attention. They will have been available to the Government for perusal for a whole month during the time that your response was in preparation. I must confess to some surprise therefore that your reply makes no reference whatsoever to either article. Criminal Law and Justice Weekly, formally known as Justice of the Peace, is one of England’s most venerable and distinguished law journals. The articles make serious and compelling points which surely deserve at the very least an acknowledgment.

For the purposes of this letter I shall assume that the phrase “do not doubt the safety of the conviction” was chosen with care and expresses a process of rational determination upon the facts. This provokes a number of questions, to which I would respectfully invite the Government’s response.

1.    Are you able to indicate whether the expression “Scottish Government do not doubt” means:

(a)     that all cabinet members individually studied the facts of the case, formed a view, and then came together to take a vote; or

(b)     that only certain members of the cabinet, for example the First Minister, the Minister of Justice and the Lord Advocate (assuming the latter was for present purposes a member of the cabinet), studied the case, and then formulated a summary for their colleagues with a recommendation which was then collectively accepted; or

(c)     that senior cabinet members dictated a view to their junior colleagues who then endorsed that view on command?

2.    In either case are you able to indicate

(a)     on what occasion the cabinet made their determination,

(b)     how much discussion there was on the factual issues,

(c)     whether any such discussion was minuted,

(d)     without indicating the views of individual ministers, the general nature of the points taken,

(e)     whether there was any conscientious dissent from expressing belief in the safety of the conviction,

(f)     whether any dissenting cabinet members have been directed by the First Minister to avoid airing their views publicly.

3.       If the answer to (1)(b) is in the affirmative the extent to which the First Minister, the Minister of Justice and the Lord Advocate have personally studied the evidence in the case.

For your information I am attaching the pdf of another article of mine, published in the current number of CL&JW, entitled “[A Postscript on Lockerbie].” (Regrettably there are two typographical errors which were introduced at a late stage through an electronic communication problem.) I would argue that the novel exposé of the narrow but devastating point focused on in the final section is one which, standing quite alone and apart from all the other problems with al-Megrahi’s conviction, might be met by some very serious soul-searching indeed on the part of judges and ministers alike and might make some men with a conscience very hesitant about declaring they have no doubts as to the safety of al-Megrahi’s conviction.

Your message to me carried the following pro forma warning:

“This e-mail (and any files or other attachments transmitted with it) is intended solely for the attention of the addressee(s). Unauthorised use, disclosure, storage, copying or distribution of any part of this e-mail is not permitted.” 

I am going to assume that this was a standard automatically generated appendage which was not intended to require the Government’s consent as a condition of quoting your message in any further excursus into journalism on which I might embark.

Yours faithfully

David Wolchover

From David Cameron's statement on Libya

[What follows is an excerpt from the Prime Minister's statement on Libya to the House of Commons this afternoon:]

Our relationship with the new Libya must of course deal with a series of problems from the past.

On Megrahi, this is obviously a matter for the Scottish Executive. But I have made my position clear. I believe he should never have been sent back to Libya in the first place.

On WPC Yvonne Fletcher, I want to see justice for her family. There is an ongoing police investigation, and the House will wish to know Prime Minister Jabril has assured me of the new Libyan authority’s intention to co-operate fully. [RB: But not, of course, to extradite anyone for trial in England because that, as the Libyan Justice Minister has pointed out, is contrary to Libyan law.]