Answer to PQ about extradition of Megrahi to USA

[On 11 November 2011 Christine Grahame MSP tabled a written question.  Here is the question and the answer:]

Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (Scottish National Party):  To ask the Scottish Executive whether the (a) Cabinet Secretary for Justice or (b) Lord Advocate had received any communication from the (i) US Secretary of State, Hillary Clinton, (ii) Home Office or (iii) interim Libyan government concerning proposals to extradite Abdelbaset Ali Mohmed al Megrahi to the USA. (S4W-04021)

Mr Kenny MacAskill:  The Scottish Government have not received any communication from the United States Government, the Libyan National Transitional Council or the Home Office, concerning proposals to extradite Abdelbaset Ali Mohmed al Megrahi to the USA.

[If Mr Megrahi were to be extradited to the United States, this would place him (without any voluntary action on his part) in breach of the terms of the licence under which he was released from his Scottish life sentence. I understand that in the new Libyan cabinet announced yesterday Mohammed al-Alagi remains justice minister.  He has in the past said that there was no question of any such extradition.]

Abdullah al-Senussi and Lockerbie

[The following is an excerpt from a report in today's edition of The Herald:]

Muammar Gaddafi’s brother-in-law and spymaster general was dramatically captured yesterday, just a day after the dictator’s son Saif was caught, in what were dubbed the “last acts” of a now-extinct regime.

Having both men in custody will boost hopes that they will reveal what they know about the Lockerbie bombing and other atrocities. 

The last stand of intelligence chief Abdullah al Senussi came as Libyan rebels insisted they would try Saif rather than transfer him to International Criminal Court (ICC) in the Hague. Unlike the ICC, it is expected a Libyan court would have the power to impose the death penalty, and officials in the interim government yesterday indicated that was the punishment they would seek.

It is likely the rebels will also push for the death penalty for al Senussi, long known as Gaddafi’s brutal right-hand man and a hate figure for many in the country. (...)

A decade ago he was convicted in his absence in France of the 1989 bombing of a UTA passenger plane over Niger which killed 170 people. As a former head of the country’s intelligence services he is likely to face pressure to reveal what he knows about the 1988 Lockerbie bombing, in which 270 people in died the worst terrorist atrocity over UK soil.

[A similar report in The Scotsman can be read here.  The following appears in a post of 17 May 2011 on this blog:]

In the 1980s, he headed Libya's external security organisation, in which capacity he was said to have recruited Abdelbaset al-Megrahi, the man convicted of the 1988 Lockerbie bombing, in which 270 people were killed. Like Megrahi, Senussi is a member of the powerful Megarha tribe. He is also a cousin of Abdel-Salam Jalloud, one of Gaddafi's oldest comrades.

Saif al-Islam Gaddafi and Lockerbie

[The following are excerpts from an article in today's edition of The Sunday Telegraph:]

Saif al-Islam Gaddafi was his father's favourite son. Until the start of the Libyan revolution, he was also feted by the West, as the arch-moderniser who would supposedly guide the oil and gas rich north African country along the path of democracy.

He was influential in his father's decision to give up weapons of mass destruction that brought Libya in from the cold in 2004 and helped to negotiate the release of the Lockerbie bomber from a Scottish jail in 2009.

Saif's extensive contacts included the Duke of York, Tony Blair and Lord Mandelson.  (...)

By about 2002, he was becoming a regular visitor to London and within a year is said to have fixed up a meeting between the Libyan regime and MI6 that would lead to Libya's public abandonment of its nuclear and chemical weapons programme, paving the way for Tony Blair to embrace Muammar Gaddafi in his Bedouin tent in March 2004 – the now infamous "deal in the desert". (...)

He was hugely influential in controlling the Libyan Investment Authority, the sovereign wealth fund with billions of pounds to spend in the UK and elsewhere.

The fund was used as leverage to secure the release of Abdelbaset al-Megrahi, the Libyan intelligence agent convicted of the Lockerbie bombing.

Saif and others let it be known that if al-Megrahi died of cancer in a British jail, then all business deals with the UK would be cancelled. Saif was entrusted with accompanying Megrahi back to Tripoli for a hero's welcome.

[An article written by Saif in The New York Times about this supposed "hero's welcome" can be read here.

A report in The Sunday Times (behind the paywall) contains the following:]

His trial could prove deeply embarrassing if he chooses to reveal details of his once-cosy relations with British politicians including Tony Blair and Peter Mandelson, the former business secretary.

Mohammed al-Alagi, Libya’s interim justice minister, said yesterday that Gadaffi will be placed on trial in Libya and faces the death penalty.

With little to lose, Gadaffi may decide from his desert prison in Zintan to spill the beans on business deals and political promises made to the regime over the past decade.

Blair, who was described by Gadaffi Jr as a close personal friend of the family, may face searching questions if Gadaffi goes ahead and reveals the secrets of their deals including oil contracts and the release of Abdelbaset al-Megrahi, the Lockerbie bomber.

Gadaffi was his father’s point man on the settlement of the bombing of Pan Am flight 103 in 1988 which killed 270 people. His detailed knowledge of the negotiations that involved British diplomats and Musa Kusa, his father’s chief of intelligence, could prove explosive. The questions of who knew what, and who did what, have never been answered.(...)

Blair, Prince Andrew, Mandelson and the Rothschild banking family are among those who could be cited by Gadaffi in court.

They were among Establishment figures who courted him in the belief that Libya would pursue a reformist agenda while lucrative business contracts were on the agenda. Among the secrets he could unlock are the machinations that may have gone on under the former Labour government ahead of the release of Megrahi.

Gadaffi Jr greeted Megrahi’s flight from Glasgow to Tripoli when he was freed by the Scottish authorities on “humanitarian” grounds in August 2009. [RB: Saif did not greet the flight.  He was on board it.] Megrahi is still alive even though doctors claimed he would die within three months from cancer.

The release happened after Blair’s notorious “deal in the desert” with Muammar Gadaffi paving the way for multi- million-pound oil contracts with Shell and BP.

Gadaffi Jr claimed that the former prime minister acted as a consultant to the Libyan Investment Authority, the country’s sovereign wealth fund. Blair vehemently denies this. However, he has visited Libya at least six times since leaving office.

Five meetings with Muammar Gadaffi took place in the 14-month period prior to Megrahi’s release. On at least two occasions Blair flew on a private jet paid for by Gadaffi. But he denies influencing the Scottish government’s decision to free the Lockerbie bomber.

Just a week before Megrahi’s release, Mandelson discussed his case with Gadaffi Jr while on holiday at a villa in Corfu owned by the Rothschilds. Mandelson later met Gadaffi at a shooting party at Waddesdon Manor in Buckinghamshire, the Rothschild family seat.

[The following is an excerpt from Wikipedia's entry on Saif al-Islam Gaddafi (footnotes omitted):]

He was also negotiating with the United States in order to conclude a comprehensive agreement making any further payments for American victims of terror attacks that have been blamed on Libya – such as the 1986 Berlin discotheque bombing, the 1988 Lockerbie bombing and the 1989 UTA Flight 772 bombing – conditional upon U.S. payment of compensation for the 40 Libyans killed and 220 injured in the 1986 United States bombing of Tripoli and Benghazi. On 14 August 2008, the U.S.-Libya Comprehensive Claims Settlement Agreement was signed in Tripoli. Former British Ambassador to Libya Oliver Miles described the agreement as "a bold step, with political cost for both parties" and wrote an article in the online edition of The Guardian querying whether the agreement is likely to work.

In an August 2008 BBC TV interview, Saif Gaddafi said that Libya had admitted responsibility (but not "guilt") for the Lockerbie bombing simply to get trade sanctions removed. He further admitted that Libya was being "hypocritical" and was "playing on words", but Libya had no other choice on the matter. According to Saif, a letter admitting "responsibility" was the only way to end the economic sanctions imposed on Libya. When asked about the compensation that Libya was paying to the victims' families, he again repeated that Libya was doing so because it had no other choice. He went on to describe the families of the Lockerbie victims as "trading with the blood of their sons and daughters" and being very "greedy": "They were asking for more money and more money and more money".

Interviewed by French newspaper Le Figaro on 7 December 2007, Saif said that the seven Libyans convicted for the Pan Am Flight 103 and the UTA Flight 772 bombings "are innocent". When asked if Libya would therefore seek reimbursement of the compensation paid to the families of the victims (US$2.33 billion), Saif replied: "I don't know." Saif led negotiations with Britain for the release of Abdelbaset al-Megrahi, the convicted Pan Am 103 conspirator.

The Carloway Review and the SCCRC

[Lord Carloway's review of criminal procedure and practice following the Cadder decision and the Scottish Parliament's emergency legislation that followed it has today been published.  It can be read here.  The principal concern that I had about the emergency legislation related to the "need for finality and certainty" restriction which section 7 imposed upon the Scottish Criminal Cases Review Commission before a reference could be made to the High Court of Justiciary of a prima facie miscarriage of justice; and, more importantly, the gatekeeping power that it conferred on the High Court to refuse, on the basis of the "need for finality and certainty", to hear a case so referred. Lord Carloway has recommended that the restriction imposed on the SCCRC should be retained; but that the High Court gatekeeping power should be repealed. He has, however, proposed that the test to be applied in determining, after hearing a case referred by the SCCRC, whether the appeal should be allowed should be that (a) there has been a miscarriage of justice; and (b) it is in the interests of justice that the appeal be allowed.  I may say that I personally find it difficult to envisage circumstances in which a court of justice worthy of the name could find that there has been a miscarriage of justice, but that it is not in the interests of justice to rectify it.

The relevant section of the Carloway Report reads as follows (footnotes omitted):]

8.2.8 Because of the concern that Cadder might result in a flood of applications to the SCCRC and consequent references to the court, many of which, on one view, would have resulted in the quashing of the relative convictions, the 2010 Act expanded on the interests of justice element in the test to be applied by the SCCRC by providing that: "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".The intention was to ensure that, when assessing an application, the SCCRC would be bound to take into account the dictum in Arbour Hill Prison relative to "spent" cases (i.e. those where the time limits for an appeal had expired or the appeal, or application for leave to appeal, had been refused).

8.2.9 It was perceived that there would remain a problem if, nevertheless, the SCCRC did refer "spent" cases. As already noted, the High Court would not be able to take "the interests of justice" into account. Its role would be restricted to determining whether a miscarriage of justice had occurred in the particular trial process. For this reason, the 2010 Act introduced another provision whereby:"(1) 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 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".The amendments made by the 2010 Act were designed specifically to deal with cases where an applicant to the SCCRC, who had not appealed his/her conviction or had had his/her appeal or application for leave to appeal refused, sought to raise a Cadder point, even although the law was as stated in McLean at the time of his/her appeal and/or trial.

8.2.10 The amendments made by the 2010 Act apply to all SCCRC references and not just to those raising Cadder points. They give to the High Court a gate-keeping role, relative to the interests of justice, which formerly rested only with the SCCRC. Whereas, previously, the sole concern of the High Court was whether a miscarriage of justice had occurred in the trial process, it now extends to whether the Court considers that a reference ought to have been made "in the interests of justice" having regard, potentially, to a wide range of circumstances, including the reasons why the High Court might previously have refused leave to appeal late or treated an earlier appeal as abandoned.

8.2.11 This gate-keeping role has to be performed by the High Court at a preliminary (procedural) hearing in advance of any full hearing on the merits of the reference. Although the power to reject a reference has not yet been exercised, it might be envisaged that the High Court may refuse to entertain a reference in circumstances where, if an application for a late appeal were to have been made, it would have refused to grant such an application. Equally, it might refuse a reference, if it had already refused to entertain a late appeal and there was no change in circumstances. There may be cases in which the SCCRC and the High Court could reach a different decision on where the interests of justice may lie.

Consideration
 8.2.12 There are three main questions to answer: first, is it appropriate that there should be a specific requirement for the SCCRC to consider finality and certainty in deciding whether to refer and, if so, should other aspects of the "interest of justice" test be similarly specified; secondly, should the High Court's "gatekeeping role", provided for in the 2010 Act, be continued; and thirdly, are there any other ways in which finality and certainty, or the wider interests of justice, should be considered in the reference or appellate processes?SCCRC and the "interests of justice"

8.2.13 The significance of the SCCRC is that it provides, by its very nature, an exception to the principle of finality in criminal proceedings. It has that role because it is recognised that, no matter how proficient the High Court may be in rooting out miscarriages of justice in the trial process, there are some, albeit few, cases, where the High Court has failed to do this or where facts have come to light to demonstrate a miscarriage of justice after the exhaustion of rights of appeal.

8.2.14 As has been highlighted elsewhere in this report, the effect of continued litigation on victims and relatives of deceased persons, as well as those convicted, should not be underestimated. Certainty and finality remain important considerations for any criminal justice system. As a generality, it is in the interests of all of those involved in a case, whether it be victims, witnesses or accused, that it reach a conclusion. It is important, for purposes of public perception, that cases do end and are not subject to repeated appeals or changes of decision.

8.2.15 The need for finality and certainty is reflected in the SCCRC being limited to referring cases where it can be said that it is in the interests of justice for the reference to be made. This element in the reference process must involve taking into account considerations wider than those raised in the particular application such as whether, despite his/her perception that a miscarriage of justice may have occurred, an applicant decided not to appeal at the time or abandoned an appeal and effectively acquiesced in his/her conviction.

8.2.16 A SCCRC reference is an extraordinary process designed to deal with exceptional cases where something has gone wrong within the criminal justice system. But the form of process acknowledges that it is not enough to demonstrate that a miscarriage of justice may have occurred at the previous trial. A broader test, having regard to the wider interests of justice, must be applied before a case can be referred. It must take into account the dictum in Arbour Hill Prison, if the evidence adduced at trial was in accordance with the law then or at the appellate stage.

8.2.17 The Review accepts that, even in the absence of the new wording introduced by the 2010 Act, the SCCRC would normally have taken the principles of finality and certainty into account when applying the interests of justice test. The Review is confident that the SCCRC will continue to do so in the immediate future. But there have been instances in the past in which the High Court has not been entirely happy that the SCCRC has fully considered this aspect of a case. Retention of the new wording will ensure that it continues to be regarded as an important factor recognising, if it were not obvious, that the possibility of a miscarriage of justice having occurred in the trial process does not, of itself, mean that it is in the interests of justice that the relative conviction be quashed. This applies in all cases where a miscarriage of justice is alleged and not just in change of law situations.

8.2.18 The Review takes the point that, by specifying this particular aspect of the "interests of justice", the legislation may be seen as detracting from the importance of other elements. In this connection, the Review notes the terms of the SCCRC information leaflet, which make it a requirement that appeal procedures be exhausted. But the Review is confident that the SCCRC will continue to take into account all the other matters which it has customarily had regard to. It would be reluctant to recommend listing, in statutory form, other aspects of the interests of justice which might be taken into account and which could outweigh the occurrence of a miscarriage of justice at trial.

The High Court's "Gate-keeping Role"

8.2.19 The Review is acutely aware of the important role that the SCCRC plays in retaining public confidence in the criminal justice system. There is a perception that miscarriages of justice sometimes occur. That perception is well founded, even if it has to be put into a proper perspective relative to the total number of convictions recorded (approximately 140,000) and appeals marked (about 2000) in a given year. The SCCRC receives about 110 applications per annum and refers about 8 per annum to the appeal court. In conviction cases the SCCRC has referred 57 out of 1,000 cases since 1999. About two thirds of references result in convictions being quashed. Of course, there may be miscarriages which are neither complained of nor referred, but the figures do provide some illustration of the extent of any problem.

8.2.20 The fact that the High Court must consider a reference from the SCCRC is important in maintaining confidence in the SCCRC and thereby in the criminal justice system as a whole. Miscarriages of justice can arise for reasons not directly connected to the trial process. This is very often the case with "fresh" evidence claims. However, some miscarriages of justice arise as a result of the way in which a case has been dealt with by a trial or appellate court. It is unusual for the SCCRC to consider a case unless and until the applicant has either unsuccessfully appealed the decision at first instance or has been refused leave to appeal. Thus by the time an application is made to the SCCRC, the applicant, his/her friends, relatives and other supporters, may perceive that the Court is less than sympathetic to his/her position. This concern would be greater if the Court, when originally rejecting the applicant's appeal or refusing to grant leave to appeal, made negative comments about the merits of the grounds of complaint. If applicants were aware that, even if his/her case were to meet the criteria for a reference by the SCCRC, the Court could refuse to consider the reference in limine for reasons other than whether there was a miscarriage of justice, this may well deter them from applying to the SCCRC in the first place. If applicants are deterred from applying to the SCCRC because of that perception, this has a strong potential for undermining the important role of the SCCRC within the criminal justice system.

8.2.21 On the other hand, SCCRC references are not, or at least ought not to be, the same as appeals made in the ordinary manner. However egregious a potential miscarriage of justice may be, the SCCRC cannot refer the case to the High Court unless they also believe it would be in the interests of justice to do so. If the Court were to be allowed to consider the interests of justice test, all that it would be doing would be applying part of the same statutory test as that laid down by Parliament for making a reference in the first place. Of course, if the SCCRC apply the test appropriately, the Court should rarely have any basis upon which to reject a case on this ground. But if it is for the SCCRC to consider whether it is in the interests of justice to refer a case, then logically it may also be appropriate for the Court to consider such a test at least when determining the appeal. It is countered that, if the SCCRC does not appropriately consider the interests of justice, the Crown could elect to "judicially review" the reference. But introducing a civil process into this arena, and one involving an Outer House judge at least initially, may be seen as unnecessarily elaborate.

8.2.22 The case for maintaining a gatekeeping role for the High Court would have greater force if there were a perception that the SCCRC had a significant track record of frivolous or inappropriate references and it were thought that some further measure was required to bring greater discipline to their activities. The Review is content to note that there has been no suggestion from any source, nor is there any other reason to suppose, that this is the case. Indeed, it seems to be widely accepted that, despite the occasional lapse, the SCCRC has been a conspicuous success in discharging its duties conscientiously and responsibly.

8.2.23 The "flood" of referred cases that was feared following Cadder has not materialised. The Review understands that, in the period from the Cadder decision in October 2010 up until July 2011, there were thirty-eight applications to the SCCRC citing Cadder grounds. Added to fourteen similar applications made before Cadder was finally determined, this makes a total of fifty-two applications. Of these fifty-two applications, at least twenty-four have been fully processed by the SCCRC and none have been referred to the Court. It may be that a proportion of the remaining twenty-eight cases may result in references, but this cannot be said to be a deluge. The Review notes that more references may arise following Ambrose. However, the outcome of that case would suggest that they will be very few in number.

8.2.24 In all these circumstances, it is inappropriate for the Appeal Court to have a gate-keeping role in relation to references from the SCCRC because of the effect which such a role could have relative to the function committed by Parliament to the SCCRC. That new provision of the 1995 Act ought to be repealed.

References to the High Court
 8.2.25 In references, there are wider considerations than exist in an ordinary appeal process, when the Court is generally only reviewing the proceedings in the trial court, although fresh evidence may also have an impact. By the time a reference is made, there may also have been a previous conscious decision by an applicant not to appeal, or not to do so on particular grounds. He/she may have abandoned an appeal or expressly departed from one or more grounds. There may have been a decision to refuse an applicant leave to appeal late either because of the absence of any arguable grounds or on the merits of the application as framed. In a reference, it may transpire that there is "fresh" evidence on both sides. Rather than continuing the process by, for example, ordering a re-trial, it may be more appropriate for the Court to be able to bring matters to a conclusion in a reference by considering, in whatever order it deems appropriate in the particular case, but after a final hearing, whether: (a) there has been a miscarriage of justice in the trial process; and (b) it is also in the interests of justice that the appeal be allowed. The law might thereby be advanced in so far as the Court can determine in appropriate cases what wider considerations of justice might result in a conviction being sustained, notwithstanding the finding of a material miscarriage in the original trial or appeal proceedings. Such a determination may assist the SCCRC when considering the interests of justice in subsequent applications.

[A related article in Scottish lawyers' magazine The Firm headlined  "Carloway Review and Pan Am 103: joining the dots" can be read here.]

Lockerbie petition continues

[This is the headline over an article in the current edition of Holyrood, a magazine devoted to Scottish politics and the Scottish Parliament. It reads in part:]

MSPs have decided that a petition calling for an inquiry into the conviction of Abdelbaset al-Megrahi for the Lockerbie bombing will remain open.

It is difficult to tell whether it is a development of any major significance. Is it simply a minor piece of bureaucracy being allowed to limp through Parliament before it fizzles out or can it really help pave the way for a genuine review of the case to take place?

Members of the Scottish Parliament’s Justice Committee voted six to three last week to allow the petition to come back to them at a later date. (...)

The petition was brought by the Justice for Megrahi group, which includes the father of one of the victims.

Dr Jim Swire, whose daughter died on flight Pan Am 103, insists Megrahi is innocent of the crime.

The [petitioners] said: “It is time for the government of Scotland to show real independence by standing up to the UK and US governments and other vested interests and instituting an open and accountable judicial inquiry that would at last free the people of Scotland and the relatives of those lost in that terrible tragedy 22 years ago.”

Committee convener, MSP Christine Grahame (SNP), said the petition should be kept open “until all the parts of the legislative jigsaw come together”.

She added that there was unfinished business in relation to Lockerbie events, including the unpublished conclusions of the Scottish Criminal Cases Review Commission, which said Megrahi may have been a miscarriage of justice victim.

Four years ago, the SCCRC published an investigation into Megrahi’s initial trial and appeal.

It listed several points which could challenge the original conviction.

A ruling has meant that the SSCRC statement of reasons cannot be made public unless everybody concerned, for instance, the Foreign and Commonwealth Office, consent.

In the run-up to May’s Scottish Parliament elections, the SNP insisted it would produce a bill to ensure publication of the SCCRC report.

This has still to occur – but when it does, many will ask why the Government did not push to have this done earlier.

It is the biggest criminal trial in Scottish legal history and it has worldwide implications.

The number of people who seem convinced beyond a reasonable doubt of Megrahi’s guilt seem to be falling into a small minority.

Later this week, Lord Carloway will publish a year-long review into the Scottish criminal justice system – an exercise that the Scottish Government insists will ensure the country can continue to boast a legal system that is underpinned by fairness and decency.

It becomes increasingly difficult to tell what reputation the Scottish legal system will continue to enjoy while so many questions central to the country’s most important criminal case remain unanswered.

Twenty years on

[Here is a post from this blog dated one year ago today:]

It was on 14 November 1991 that the prosecution authorities in Scotland (the Lord Advocate, Lord Fraser of Carmyllie QC) and the United States (acting US Attorney General, William Barr) simultaneously announced that they had brought criminal charges -- principally murder and conspiracy to murder -- arising out of the destruction of Pan Am 103 against two Libyan nationals, Abdelbaset al-Megrahi and Lamin Fhimah, who were alleged to be members, and to have been acting throughout as agents, of the Libyan intelligence service.

According to the Scottish and American prosecutors, what had happened was this. The two Libyans had manufactured, or caused to be manufactured, a bomb using a Toshiba cassette recorder, Semtex explosive and a digital electric timer (supplied and manufactured by a Swiss company based in Zurich, MeBo AG, the principals of which were Erwin Meister and Edwin Bollier). The device had been placed in a brown Samsonite suitcase in Malta, along with items of clothing purchased for the purpose from a particular shop (Mary's House) in Sliema owned by the Gauci family. Using stolen Air Malta luggage tags, the Libyans (one of whom -- Fhimah -- had occupied the post of station manager for Libyan Arab Airlines in Malta) introduced the suitcase at Luqa Airport into the interline baggage system as unaccompanied luggage on Air Malta Flight KM 180 from Malta to Frankfurt, with directions for its onward transmission (first) on to a feeder flight (PA 103A) to Heathrow and (second) on to Pan Am flight 103 from Heathrow to J F Kennedy Airport in New York.

[The US grand jury indictment announced by the acting Attorney General is the basis of the current US contention that Megrahi should be extradited from Libya to the United States. This, of course, blithely ignores UN Security Council Resolution 1192 and the Zeist trial at which two US Justice Department lawyers formed part of the Lord Advocate's prosecution team.

In this context the following Written Question to the Scottish Government should be noted:]

Question S4W-04021 - Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (Scottish National Party) (Date Lodged 11/11/2011) :

To ask the Scottish Executive whether the (a) Cabinet Secretary for Justice or (b) Lord Advocate had received any communication from the (i) US Secretary of State, Hillary Clinton, (ii) Home Office or (iii) interim Libyan government concerning proposals to extradite Abdelbaset Ali Mohmed al Megrahi to the USA.

Libya will not allow US to try Megrahi

[This is the headline over a section of a report in the Scottish edition of today's Sunday Express.  It reads as follows:]

The new Libyan government will not extradite the Lockerbie bomber for a second trial in the United States, senior officials in Malta claimed yesterday.

Dr Tonio Borg, the Deputy Prime Minister of Malta, said he applauded the National Transitional Council (NCT) for “standing up” to pressure from Washington to extradite Abdelbaset Ali Mohmed al-Megrahi.

His comments contradict recent reports that NTC information minister Mahmoud Shammam claimed Megrahi had lost his special protection.  He said: “Basically, we don’t care what happens to him."

Dr Borg, who is also a veteran of talks with his North African neighbours, said: “Of course, if there is an extradition request this has to be processed.

“But the possibility that this would run counter to the double jeopardy rule is real unless the request is based on completely new charges.”

Sources at the State Department in Washington say talks with the NTC are ongoing and a “formal approach” for extradition is being prepared.

SNP ministers 'wanted bomber out of the way'

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

Scottish Ministers last night angrily denied extraordinary claims from a sacked SNP adviser that the Lockerbie bomber had been released for “political” reasons – and not on grounds of ill health.

Mark Hirst claims First Minister Alex Salmond and Justice Secretary Kenny MacAskill had already decided to free Abdelbaset Ali Mohmed al-Megrahi before the application for a prisoner transfer from Libya was even received.

Mr Hirst, who was sacked as Christine Grahame’s senior political adviser in September, is embroiled in an increasingly bitter row with his former employer. (...)

Writing online yesterday [RB: in a comment on this blog], Mr Hirst said: “MacAskill made the decision... BEFORE his defence team or Libyan officials had made any application to have him returned.

“He didn’t do this because he felt any real sense of compassion, or for any commercial reasons as the Americans have stated, but because MacAskill believed it was politically expedient. Fair to say neither he or anyone expected the media furore that followed.

“For Scottish Ministers the bottom line was this; they were determined to uphold, as they saw it, the integrity of the Scottish legal system... whether or not it deserved it.

“Ensuring Megrahi was out the way and sent back to Libya, his appeal dropped, was critical to achieving that objective.”

Mr Hirst also claimed that Ms Grahame – who was a vocal supporter of Megrahi and believed he had suffered a miscarriage of justice – had now “backed off” from the campaign.

So far, she has not used her position as Convener of the Justice Committee to push for a Scottish Government inquiry into the 1988 bombing.

Mr Hirst wrote: “Grahame said she could not, for political reasons, push Scottish Ministers fully on this.

‘There is only so far I can go,’ she told me and added that we should continue to try to divert and focus calls for an inquiry on the UK Government instead, knowing fine well they will never hold one.”

Megrahi, 59, is the only man ever convicted of the bombing in 1988. After being diagnosed with terminal prostate cancer, he was freed on compassionate grounds just days after dropping an appeal against his conviction – which many believe to have been flawed.

Colonel Gaddafi’s regime had also applied for a prisoner transfer, under a deal agreed with Tony Blair’s government as part of talks that also saw BP win lucrative oil deals.

Mr MacAskill’s spokesman said last night: “This is complete and absolute nonsense, from an individual in no position to know anything about these matters. There were two applications for release – one on compassionate grounds, and another for prisoner transfer. The Justice Secretary rejected the prisoner transfer application.

“In every regard, the Scottish Government acted without any consideration of the economic, political and diplomatic factors that the then UK Labour Government based its hypocritical position in favour of release on.”

... the prosecution case in the Lockerbie trial was itself a conspiracy theory

[The following are excerpts relating to Lockerbie from a long essay entitled "Who said Gaddafi had to go?" by Hugh Roberts in the 17 November 2011 edition of the London Review of Books. The whole essay merits close study.  I am grateful to regular blog commentator Vronsky for drawing it to my attention.]

As early as 1987 he was experimenting with liberalisation: allowing private trading, reining in the Revolutionary Committees and reducing their powers, allowing Libyans to travel to neighbouring countries, returning confiscated passports, releasing hundreds of political prisoners, inviting exiles to return with assurances that they would not be persecuted, and even meeting opposition leaders to explore the possibility of reconciliation while acknowledging that serious abuses had occurred and that Libya lacked the rule of law. These reforms implied a shift towards constitutional government, the most notable elements being Gaddafi’s proposals for the codification of citizens’ rights and punishable crimes, which were meant to put an end to arbitrary arrests. This line of development was cut short by the imposition of international sanctions in 1992 in the wake of the Lockerbie bombing: a national emergency that reinforced the regime’s conservative wing and ruled out risky reform for more than a decade. It was only in 2003-4, after Tripoli had paid a massive sum in compensation to the bereaved families in 2002 (having already surrendered Abdelbaset Ali al-Megrahi and Al Amin Khalifa Fhima for trial in 1999), that sanctions were lifted, at which point a new reforming current headed by Gaddafi’s son Saif al-Islam emerged within the regime. (...)

Since February, it has been relentlessly asserted that the Libyan government was responsible both for the bombing of a Berlin disco on 5 April 1986 and the Lockerbie bombing on 21 December 1988. News of Gaddafi’s violent end was greeted with satisfaction by the families of the American victims of Lockerbie, understandably full of bitterness towards the man they have been assured by the US government and the press ordered the bombing of Pan Am 103. But many informed observers have long wondered about these two stories, especially Lockerbie. Jim Swire, the spokesman of UK Families Flight 103, whose daughter was killed in the bombing, has repeatedly expressed dissatisfaction with the official version. Hans Köchler, an Austrian jurist appointed by the UN as an independent observer at the trial, expressed concern about the way it was conducted (notably about the role of two US Justice Department officials who sat next to the Scottish prosecuting counsel throughout and appeared to be giving them instructions). Köchler described al-Megrahi’s conviction as ‘a spectacular miscarriage of justice’. Swire, who also sat through the trial, subsequently launched the Justice for Megrahi campaign. In a resumé of Gaddafi’s career shown on BBC World Service Television on the night of 20 October, John Simpson stopped well short of endorsing either charge, noting of the Berlin bombing that ‘it may or may not have been Colonel Gaddafi’s work,’ an honest formula that acknowledged the room for doubt. Of Lockerbie he remarked cautiously that Libya subsequently ‘got the full blame’, a statement that is quite true.

It is often claimed by British and American government personnel and the Western press that Libya admitted responsibility for Lockerbie in 2003-4. This is untrue. As part of the deal with Washington and London, which included Libya paying $2.7 billion to the 270 victims’ families, the Libyan government in a letter to the president of the UN Security Council stated that Libya ‘has facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103, and accepts responsibility for the actions of its officials’. That this formula was agreed in negotiations between the Libyan and British (if not also American) governments was made clear when it was echoed word for word by Jack Straw in the House of Commons. The formula allowed the government to give the public the impression that Libya was indeed guilty, while also allowing Tripoli to say that it had admitted nothing of the kind. The statement does not even mention al-Megrahi by name, much less acknowledge his guilt or that of the Libyan government, and any self-respecting government would sign up to the general principle that it is responsible for the actions of its officials. Tripoli’s position was spelled out by the prime minister, Shukri Ghanem, on 24 February 2004 on the Today programme: he made it clear that the payment of compensation did not imply an admission of guilt and explained that the Libyan government had ‘bought peace’.

The standards of proof underpinning Western judgments of Gaddafi’s Libya have not been high. The doubt over the Lockerbie trial verdict has encouraged rival theories about who really ordered the bombing, which have predictably been dubbed ‘conspiracy theories’. But the prosecution case in the Lockerbie trial was itself a conspiracy theory. And the meagre evidence adduced would have warranted acquittal on grounds of reasonable doubt, or, at most, the ‘not proven’ verdict that Scottish law allows for, rather than the unequivocally ‘guilty’ verdict brought in, oddly, on one defendant but not the other. I do not claim to know the truth of the Lockerbie affair, but the British are slow to forgive the authors of atrocities committed against them and their friends. So I find it hard to believe that a British government would have fallen over itself as it did in 2003-5 to welcome Libya back into the fold had it really held Gaddafi responsible. And in view of the number of Scottish victims of the bombing, it is equally hard to believe that SNP politicians would have countenanced al-Megrahi’s release if they believed the guilty verdict had been sound. The hypothesis that Libya and Gaddafi and al-Megrahi were framed is to be taken very seriously indeed. And if it were the case, it would follow that the greatly diminished prospect of reform from 1989 onwards as the regime battened down the hatches to weather international sanctions, the material suffering of the Libyan people during this period, and the aggravation of internal conflict (notably the Islamist terrorist campaign waged by the LIFG between 1995 and 1998) can all in some measure be laid at the West’s door.

[Another important London Review of Books article from September 2009 "The framing of al-Megrahi" by Gareth Peirce can be found here.]

MacAskill stands by Megrahi conviction "until such time as that matter were to be reviewed"

[What follows is an excerpt from a report published this afternoon by The Press Association news agency:]

A senior Scottish Government minister has backed Justice Committee convenor Christine Grahame amid allegations that she made sectarian remarks.

The Electoral Commission is investigating the allegations made by Mark Hirst, a former senior political advisor in her office.

She faced calls by Labour MSP Michael McMahon to "consider her position on the Justice Committee until such times as any investigation into this matter has been completed".

However, Justice Secretary Kenny MacAskill said Ms Grahame has "rebutted these matters firmly" and the allegations should be viewed "with the contempt they deserve".

Mr MacAskill also said he will stand by the conviction of the only man convicted of the Lockerbie bombing "until such time as that matter were to be reviewed". (...)

Ms Grahame is also a member of the Justice for Megrahi campaign.

Earlier this week, she spearheaded calls to continue a petition by the group calling for an independent inquiry into the conviction of Abdelbaset al-Megrahi for his role in the Lockerbie bombing, which killed 270 people in 1988.

[Further details can be found here on the Herald Scotland website.

It lies, of course, within the powers of the government of which Kenny MacAskill is a member to have the matter of Abdelbaset Megrahi's conviction reviewed.  That is precisely what is sought in the petition currently before the Justice Committee of the Scottish Parliament and is precisely what the Scottish Government has been assiduously obstructing.

The Official Report of Tuesday's meeting of the Justice Committee at which the petition was discussed can be read here (at pages 11 to 15 of the PDF document).]

Drugs 'keep Lockerbie bomber alive'

[This is the headline over a report published today by The Press Association news agency following an appearance by Dr Karol Sikora on the BBC Daily Politics programme.  It reads as follows:]

A cancer expert who examined the Lockerbie bomber in prison has said he is being kept alive by "experimental drugs".

Professor Karol Sikora said that Abdelbaset al-Megrahi was being given medication not available on the NHS.

Megrahi was controversially freed from prison on compassionate grounds more than two years ago after being diagnosed with terminal cancer.

He was said to be three months from death when he was released from Greenock prison on August 20 2009 following a decision by Scottish Justice Secretary Kenny MacAskill.

Megrahi returned to Libya upon his release. Cancer expert Prof Sikora was asked by the Libyan government to provide an independent medical assessment of Megrahi and visited him in prison in July that year.

On the BBC Daily Politics show, he was asked: "You did the health assessment of al-Megrahi giving him three months to live or thereabouts. He is still alive. How has he managed to survive so long more than two years later?"

He replied: "He has been on experimental drugs, including one that was developed in the UK and is not available on the NHS, which is quite ironic." He added: "My opinion wasn't taken into account by the Scottish Government. Nine doctors looked at it and they all said three months. They were using standard NHS practice in Glasgow in 2008, 2009."

Megrahi is the only person to have been convicted of the bombing of Pan Am Flight 103, which exploded over Lockerbie in December 1988, killing 270 people.

A Scottish Government spokesman said: "Mr al-Megrahi is an extremely sick man, dying of terminal prostate cancer. He was released on compassionate grounds based on the recommendations of the Parole Board, the prison governor and the medical report of the Scottish Prison Service's most senior health professional, Dr Andrew Fraser.

"Dr Fraser is a professional of impeccable integrity and he concluded that his clinical assessment was that a three-month prognosis was a reasonable estimate, drawing on the work of a range of specialists and other Scottish health service professionals involved in al-Megrahi's care from when he was first diagnosed with cancer in 2008."

[During most of my tenure of office as Professor of Scots Law in the University of Edinburgh, law and medicine students graduated in the same ceremony.  The medical graduands were required to swear an oath to the effect, inter alia, that things learned about patients in the course of medical practice would not, save for weighty cause, be divulged. Dr Sikora is not an Edinburgh graduate.]

Justice not served: Those involved with Pan Am Flight 103 still troubled by al-Megrahi’s release

[This is the headline over a long report in today's edition of The Daily Orange, the newspaper of Syracuse University, New Jersey, thirty-five of whose students died on Pan Am 103.  It contains quotes from Frank Duggan, president of Victims of Pan Am 103 Inc (not himself a Lockerbie relative), Susan Cohen (mother of one of the Syracuse students) and Brian Murtagh, a US Justice Department prosecutor at the time who worked on the case and, indeed, formed part of the Lord Advocate's prosecution team in the Scottish Court in the Netherlands.  The views of Mr Duggan and Mrs Cohen are well known.  I therefore confine myself to reproducing the sections relating to Mr Murtagh (wrongly given as "Murtaugh" in the article itself).]

The Scottish and U.S. governments worked to study evidence from the site of the bombing, said Brian Murtaugh, then a Justice Department prosecutor. Pieces of cloth, metal from the aircraft and the remains of the suitcase that held the bomb were recovered, he said. A storekeeper in Malta said he sold the clothes that were recovered from the site to al-Megrahi. A double agent stepped forward with testimony, although Murtaugh said it was later discovered that the witness exaggerated his involvement. (...)

Murtaugh, who worked on the case for more than two decades, said if al-Megrahi had been tried in the United States, it would have been less likely for him to be released on compassionate grounds.

"A life sentence in the federal system means a life sentence," he said.

Through all the conflict, as well as the confusion of a foreign legal system, families of the victims wanted to be involved. The Justice Department funded flights to Scotland and provided access to al-Megrahi and Fhimah's trial, and closed-circuit televisions were set up in New York. (...)

 After 23 years, the case remains open. Few have details on how the crime was orchestrated. Gadhafi died at the hands of his own people in October and al-Megrahi still claims his innocence.

The Scottish and U.S. governments continue to investigate the case with the hope of finding more people involved. Someone had to make the bomb; someone else must have delivered it, Murtaugh said.

Closure may be impossible, he said, but people still want to know what happened.

"Trials are an imperfect vehicle to bring justice in a sense of making the victims whole," Murtaugh said. "We can never make them whole. We can never bring back the decedent."

Justice Committee votes to keep Megrahi petition open

[The following account of this morning's discussion of the Justice for Megrahi petition (PE 1370) in the Scottish Parliament's Justice Committee comes from Patrick Haseldine:]

On 8 November 2011, the Justice Committee decided by six votes in favour [SNP and Lib-Dem] and three against [Labour and Conservative] to keep open the Justice for Megrahi petition (PE 1370), which calls upon the Scottish Government to institute an inquiry into Abdelbaset Megrahi's conviction for the 1988 Lockerbie bombing.

James Kelly MSP [Labour, deputy convener], brother of Megrahi's former solicitor Tony Kelly, argued strongly that the court is the correct route for testing the soundness of criminal convictions. He could see no role for the Justice Committee to consider the JFM petition further.

However, Justice Committee convener, Christine Grahame MSP [Scottish National Party], said the petition should be kept open until all the parts of the legislative jigsaw come together: there was unfinished business in relation to the Lockerbie trial; the conclusions of the Scottish Criminal Cases Review Commission's unpublished report remain untested; the SCCRC's power to refer cases back to the Appeal Court is being restricted; and Lord Carloway, who is currently reviewing law and practice of criminal investigations, is due to publish his report on 17 November 2011.

[The report just published by The Press Association news agency reads as follows:]

MSPs have voted to continue a petition calling for an independent inquiry into the conviction of Abdelbaset al-Megrahi for his role in the Lockerbie bombing.

Holyrood's Justice Committee met to consider the petition by the Justice for Megrahi campaign, a group calling on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 conviction of Megrahi for the bombing of Pan Am flight 103 in December 1988 which killed 270 people.

SNP MSP Christine Grahame, the committee's convenor and a member of the Justice for Megrahi group, went head-to-head with Labour's James Kelly, vice-convenor and brother of Scottish lawyer Tony Kelly, who has acted for Megrahi, over whether the petition should continue.

He added: "Obviously it's an ongoing situation, particularly after recent events, and new information is continuing to come to the fore. I think the relevant place for that information to be considered is by the Scottish police and Scottish prosecutors, and as such I don't think there's a role for this committee to consider this petition further."

Ms Grahame declared her membership of Justice For Megrahi and her "particularly high profile in arguing that his conviction is unsound".

She said: "The Justice Committee is not being asked to conduct a public inquiry via the committee. We're being asked whether or not there should be a public inquiry. I think the committee will agree that this is unfinished business. We had the abandonment of the second part of the appeal, with the SCCRC report untested, in extraordinary circumstances."

A Scottish Government spokesman said: "The Scottish Government would welcome a wide-ranging inquiry into the circumstances of the Lockerbie atrocity and we stand ready to assist in any way we can.

"However, given the international dimensions to this issue, the scope of any such inquiry goes well beyond the restricted remit and responsibilities of the Scottish Government or Scottish Parliament, and would therefore have to be convened by those with the required powers. Scottish authorities would co-operate in full in any such inquiry.

"Scotland's justice system has been dealing with the Lockerbie atrocity for nearly 23 years, and in every regard the due process of Scots Law has been followed - in terms of the investigation, prosecution, imprisonment, rejection of the prisoner transfer application and granting of compassionate release.

"We believe that the SCCRC Statement of Reasons should be in the public domain and that is precisely why we are introducing a Bill later this year to facilitate publication. The Bill is necessary in order to overcome objections by interested parties preventing any publication."

[The report in the edition of The Herald for Wednesday, 9 November can be read here; that in The Scotsman can be read here.]

Lockerbie petition goes before MSPs

[This is the headline over a report published today by the The Press Association news agency.  It reads in part:]

A petition calling for an inquiry into the conviction of the Lockerbie bomber is to be looked at by Holyrood's Justice Committee.

The petition, brought forward by the pressure group Justice For Megrahi (JFM), has been passed on to the committee after being kept open by MSPs on the Petitions Committee earlier this year.

Abdelbaset Ali Mohmed Al Megrahi was controversially freed from prison on compassionate grounds after being diagnosed with terminal cancer and had been staging a second appeal against his conviction.

But he dropped it in the run-up to Justice Secretary Kenny MacAskill's decision to release him in August 2009.

About 1,500 people signed the JFM petition before it was lodged at the Scottish Parliament.

The pressure group, which includes Dr Jim Swire, who lost his daughter Flora in the tragedy, and Professor Robert Black QC has also sent a written submission to the Justice Committee.

It said: "It is time for the government of Scotland to show real independence by standing up to the UK and US governments and other vested interests and instituting an open and accountable judicial inquiry that would at last free the people of Scotland and the relatives of those lost in that terrible tragedy 22 years ago."

[An item in the Diary column of today's edition of The Independent reads as follows:]

Somewhere in Libya there is a man who should have died two years ago, according to the prognosis of his Scottish doctors. Today, the Justice Committee of the Scottish Parliament will take formal note of a petition signed by more than 1,600 people who believe the man convicted of the Lockerbie bombing, Abdelbaset al-Megrahi, was framed.

The suspicion, which is not as crazy as the conspiracy theories that swirled out of the al-Qa'ida atrocities on 9/11, is that Iran ordered the destruction of Pan Am flight 103, which crashed into the village of Lockerbie, in South-west Scotland, on 21 December 1988, but that it was diplomatically convenient to blame Libya, and it later suited Colonel Muammar Gaddafi to accept the blame to end his country's isolation. Whether this is true or false may be verifiable if Libya opens up its archives.

Meanwhile, there has been speculation about how ill Megrahi really is, in the light of his failure to die on schedule. The US State Department is making noises about having him extradited, to which the Libyan National Transitional Council's reaction has been along the lines that the Americans are welcome to him.

Lord Laird, an Ulster peer, suggested last week that the matter of Megrahi's health could be cleared up if someone from the British embassy in Tripoli popped round to see him, but the Foreign Office said no. This is a devolved matter. Megrahi is in the same position as anyone convicted of a crime in that part of rural Scotland and released under supervision. He is the responsibility of East Renfrewshire Council.

Every week, someone from council headquarters in Giffnock calls a telephone number in Libya. Calls cost 15p a minute, and last four to five minutes, so the extra cost borne by the council is about 10p a day. The council says that Megrahi is seriously ill, and complying with the terms of his supervision order, but will not give out any more detail.

The position in international law is cloudy, but it would seem that if Hillary Clinton really wants Megrahi put on trial in the US, she will have to ask the council, since Megrahi is under its supervision. East Renfrewshire has a population of 86,500.

The importance of the rule of law

[This is the title of an address given by the Director of the FBI, Robert Mueller III, at the National Symposium for United States Court of Appeals Judges, held in Washington DC on 4 November 2011. It reads in part:]

We in the FBI face significant and evolving criminal and terrorist threats. Regardless of the threats we face or the changes we make, we must act within the confines of the Constitution and the rule of law -- every day, in every investigation. Indeed, the rule of law remains our guiding principle -- our lodestar. (...)

How do we prosecute a case where the crime has migrated from one country to the next, with victims around the world? How do we overcome these jurisdictional hurdles and distinctions in the law from country to country?

As a prosecutor for the Department of Justice, I worked with our counterparts in Scotland to investigate the bombing of Pan Am 103 in 1988. With this attack, terrorism hit home for Americans in a profound way.

But for those of us in law enforcement, it brought to light the importance of international partnerships as a bridge between conflicting legal systems. It also brought to light the need for a global presence to meet global threats.

Investigators from Scotland, Germany, Austria, Switzerland, and the United States worked together in ways we had never experienced before. Partnerships like those forged in Lockerbie have never been more important.

Today, we all understand that working side-by-side is not just the best option, it is the only option. (...)

The FBI has always adapted to meet new threats. And we must continue to evolve to prevent terrorist and criminal attacks, because terrorists and criminals certainly will. But our values can never change.

Regardless of emerging threats, the impact of globalization, or changing technology, the rule of law will remain our guiding principle.

It is fair to say that the FBI has had missteps over the years. But these missteps and mistakes have provided opportunities to improve. And though it may be a cliché to say we have come out of such situations stronger and smarter, it is true.

[Some other Lockerbie-related contributions from and about Mr Mueller can be read here, here and here.]