Switzerland re-opens Lockerbie case

[I am grateful to Edwin Bollier for sending me a copy of an article that appeared on 27 April in NZZ am Sonntag. It does not appear as yet on the Neue Zürcher Zeitung website, but I reproduce the text below, preceded by an English translation provided by an Edinburgh friend, to whom I am also very grateful:]

Switzerland re-opens Lockerbie case

A Special Attorney is investigating a federal criminal police officer.

25 years after the attack against a Pan Am jumbo over Lockerbie an external prosecutor is to investigate the influence of Swiss “players”. The findings are full of contradictions.

Andreas Schmid

An exploding bomb caused a jumbo of the U.S. airline Pan Am to crash over Lockerbie in Scotland on December 21, 1988. 259 passengers and 11 residents of the town were killed. A Libyan secret service member was found guilty of smuggling the bomb, fitted with a timer, onto the aircraft. The offender, who died in 2012, was sentenced in 2001 to life in prison.

The timer which he used , was allegedly delivered from Switzerland to Libya. However, the investigation results of the Scottish authorities, the US Federal Bureau of Investigation, and the CIA contained numerous contradictions that affect a Zurich electronics dealer who has been accused of having produced the timer of the bomb.

Doubts on this issue and a charge brought by the dealer now lead to the fact that the renowned retired prosecutor Felix Bänziger has been appointed as Special Attorney with a new investigation. As a former federal police detective is the focus of the proceedings, the Attorney General relinquished  the case. "To counter any appearance of partiality, we asked the supervisory authority of the prosecution to use a special prosecutor," says Nathalie Guth from the legal department of the Attorney General. She confirms information of "NZZ am Sonntag", according to which Bänziger was authorized to investigate the federal agent charged by the electronics dealer.

According to the dealer, the police officer, now working for the Federal Intelligence Service, procured the alleged evidence of the complicity of the Zurich dealer in the attack at a later date. It is on record, in any case, that the federal police detective in June 1989 laid hands on a component of a circuit board in the shop of the dealer, as it was later discovered at the crash site. The finding is entered in the files and in the final report with three different data.

Material raises questions

The timer for the bomb, said to have been delivered from Switzerland and assigned by American intelligence to the production series of the Zurich dealer, also contained coating materials that he had not yet used at the time of the attack. The Beobachter in June 2012 suggested that the electronics dealer had been accused of using a timer from a later production series.

Scottish investigators had met in May 1989 in Bern with representatives of the Attorney General. The topic of the information exchange was the Palestinian splinter group, PFLP, which was made accountable for the Swissair crash in Würenlingen 1970 and other attacks.

A process  for aiding and abetting against the Zurich dealer was finally opened in 1998, but discontinued six years later.

The dealer was targeted by the investigation authorities because of his former business dealings: he had worked intensively with the Libyan government and its intelligence agency to build wireless networks for the Gaddafi regime for years. During the mid-80s, the Zurich man, who also worked for the East German secret service Stasi since the early seventies, also delivered 20 timers to Libya. These activities were viewed with suspicion by the authorities, although Switzerland had approved the exports.

Demanded damages

In the complaint against the former Federal Criminal Police Officer, which the special prosecutor Bänziger takes on, the electronics dealer claims that the police officer had taken away the part without authorization of his employee. At that time, according to the Beobachter no criminal proceedings against the dealer were pending , and Switzerland had not granted Scotland police assistance. It was because the actions of the police had brought him into connection with the attack, that his business incurred enormous damage, that the Zurich dealer requested 47.7 million francs from the Confederation. The special prosecutor has to examine questions arising regarding a possible ‘statute of limitations’ or a criminal offense, says Nathalie Guth of the Attorney General .

Felix Bänziger

The supervisory authority of the Attorney General has entrusted the longtime prosecutor with the Lockerbie investigation.

A man for delicate cases

The 66-year-old Felix Bänziger has gone through a few stations in his career. The lawyer became known in the late nineties as a representative of the former federal prosecutor Carla Del Ponte. Previously, he was chief of the criminal police in the canton of St Gallen and Ausserrhoden prosecutor. Until his retirement in May 2013, Bänziger served as chief prosecutor of the canton of Solothurn. For the Zurich Government Bänziger 2012 led proceedings against the Director of Justice Martin Graf, who had been charged by a private person. The Vaud Cantonal Court entrusted the eastern Swiss resident with an administrative inquiry in May 2013 in connection with the killing of 19 year old Marie.

Schweiz rollt Fall Lockerbie neu auf

Ein ausserordentlicher Staatsanwalt ermittelt gegen einen Bundeskriminalpolizisten.

25 Jahre nach dem Attentat gegen einen Pan Am Jumbo über Lockerbie soll ein externer Strafverfolger den Einfluss von Schweizer Akteuren untersuchen. Die bisherigen Erkenntnisse sind voller Widersprüche.
Andreas Schmid

Eine explodierende Bombe hat am 21. Dezember 1988 einen Jumbo der US-Fluggesellschaft Pan Am über Lockerbie in Schottland abstürzen lassen. 259 Insassen und 11 Bewohner der Stadt kamen ums Leben. Ein libyscher Geheimdienstangehöriger wurde schuldig befunden, die mit einem Timer versehene Bombe ins Flug-zeug geschmuggelt zu haben. Der 2012 verstorbene Täter war 2001 zu einer lebenslänglichen Gefängnisstrafe verurteilt wurden. Die Schaltuhr, die er benutzte, soll aus der Schweiz nach Libyen geliefert worden sein. Die Ermittlungsergebnisse der schottischen Behörden, der US-Bundespolizei FBI und des Geheimdiensts CIA enthielten jedoch zahlreiche Widersprüche, die auch einen Zürcher Elektronikhändler betreffen, der bezichtigt wurde, den Timer der Bombe produziert zu haben. Zweifel an diesem Sachverhalt sowie eine Anzeige des Verdächtigten führen nun dazu, dass der renommierte pensionierte Strafverfolger Felix Banziger als ausserordentlicher Staatsanwalt mit einer, neuen Untersuchung betraut wurde.

Weil ein früherer Bundeskriminalpolizist im Fokus des Verfahrens steht, trat die Bundesanwaltschaft den Fall ab. «Um jedem Anschein von Befangenheit entgegenzutreten, ersuchten wir die Aufsichtsbehörde über die Bundesanwaltschaft, ei nen ausserordentlichen Staatsanwalt  einzusetzen», sagt Nathalie Guth vom Rechtsdienst der Bundesanwaltschaft. Sie bestätigt Informationen der «NZZ am Sonntag», wonach Bänziger ermächtigt wurde, gegen den vom Elektroniker angezeigten Bundespolizisten zu ermitteln. Nach der Darstellung des Händlers soll der inzwischen für den Nachrichtendienst des Bundes tätige Beamte nämlich den angeblichen Beweis für die Gehilfenschaft des Zürchers am Attentat nachträglich beschafft haben. Aktenkundig ist jedenfalls, dass der Bundeskriminalpolizist im Juni 1989 im Laden des Händlers ein Bestandteil einer Leiterplatte behändigte, wie es später an der Absturzstelle entdeckt wurde. Der Fund ist in den Akten und im Schlussbericht mit drei verschiedenen Daten vermerkt.

Material wirft Fragen auf

Die Schaltuhr zur Bombe, die aus der Schweiz geliefert worden sein soll und die der amerikanische Geheimdienst der Serie des Zürcher Händlers zuwies, enthielt zudem Beschichtungsmaterialien, die er zur Zeit des Attentats gar noch nicht verwendet hatte. Der Elektroniker sei mithilfe eines Timers aus einer spateren Produktion beschuldigt worden, vermutete der «Beobachter» im Juni 2012. Schottische Ermittler hatten sich im Mai 1989 in Bern mit Vertretern der Bundesanwaltschaft getroffen. Gegenstand des Informationsaustauschs war damals die palästinensische Splittergruppe PFLP, die für den Swissair-Absturz von Würenlingen 1970 und weitere Attentate zur Rechenschaft gezogen wurde.

Ein Verfahren wegen Gehilfenschaft gegen den Zürcher Händler wurde erst 1998 eröffnet, jedoch sechs Jahre später eingestellt.

Der Händler war nicht zuletzt wegen seiner früheren Geschäfte ins Visier der Untersuchungsbehörden geraten: Jahrelang hatte er intensiv mit der libyschen Regierung und dem Geheimdienst geschäftet und für das Ghadhafi-Regime Funknetze konstruiert. Mitte der achtziger Jahre lieferte der Zürcher, der seit den frühen siebziger Jahren ebenfalls für den DDR-Geheimdienst Stasi arbeitete, auch 20 Schaltuhren nach Libyen. Diese Tätigkeiten wurden von den Behörden argwöhnisch beobachtet, obwohl die Schweiz die Exporte bewilligt hatte.

Schadenersatz gefordert

In der Anzeige gegen den ehemaligen Bundeskriminalpolizisten. der sich der ausserordentliche Staatsanwalt Bänziger annimmt, bringt der Elektroniker vor, der Kommissar habe seinem Mitarbeiter ohne Befugnis ein Bestandteil abgenommen. Damals war laut dem «Beobachter» kein Straf-verfahren gegen den Händler hängig, und die Schweiz hatte Schottland noch keine Rechtshilfe gewährt. Weil ihn das Vorgehen des Polizisten mit dem Attentat in Verbindung gebracht und seinem Geschäft einen enormen Schaden zugefügt habe, verlangt der Zürcher von der Eidgenossenschaft 47,7 Millionen Franken. Fragen zur allfälligen Verjährung oder zur Strafbarkeit habe der ausserordentliche Staatsanwalt zu prüfen, sagt Nathalie Guth von der Bundesanwaltschaft.

Felix Bänziger

Die Aufsichtsbehörde über die Bundesanwaltschaft hat den langjährigen Strafverfolger mit der Lockerbie-Anzeige betraut.

Ein Mann für heikle Fälle

Der 66-jährige Felix Bänziger hat in seiner Karriere einige Stationen durchlaufen. Bekannt wurde der Jurist Ende der neunziger Jahre als Stellvertreter der damaligen Bundesanwältin Car la Del Ponte. Zuvor war er Chef der Kriminalpolizei im Kanton St. Gallen und Ausserrhoder Staatsanwalt. Bis zur Pensionierung im Mai 2013 amtierte Bänziger als Oberstaatsanwalt des Kantons Solothurns. Für den Zürcher Regierungsrat führte Banziger 2012 ein Verfahren gegen den Justizdirektor Martin Graf, der von einer Privatperson angezeigt worden war. Das Waadtländer Kantonsgericht betraute den Ostschweizer im Mai 2013 mit einer Administrativuntersuchung im Zusammenhang mit der Tötung der 19-jährigen Marie.

Hollywood’s Pan Am 103 Truthers

[This is the headline over an article published yesterday on the website of The Daily Beast.  It reads as follows:]

Acclaimed movie director Jim Sheridan has stirred up a hornet’s nest with his claim that Abdelbaset al-Megrahi, the Libyan spy held responsible for blowing Pan Am Flight 103 out of the sky over the Scottish town of Lockerbie and killing 270 people in December 1988, was innocent.

The FBI officials in charge of the US investigation as well as families and friends of the victims, 190 of whom were Americans, are especially troubled that the 65-year-old Sheridan is planning a feature film that will portray Megrahi—who died of cancer in May 2012 after being sprung from a Scottish prison on a controversial “compassionate release”—as blameless and wrongfully convicted of the crime.

“It kills me to think that they would go off and just tell some completely wrong story just because they like the way it sounds or there’s got to be another twist to it,” said Pan Am 103 widow Kathy Tedeschi, whose husband, Bill Daniels, was a passenger on the doomed flight. “There are too many people, like the FBI and Scotland Yard, who investigated this case, and I firmly believe they knew what they were doing and they got the right man.”

The Irish-born Sheridan, whose Oscar-nominated movies include In the Name of the Father and My Left Foot (for which Daniel Day-Lewis received the Best Actor award), told The Hollywood Reporter that he’s writing a screenplay with fellow Irish writer Audrey O’Reilly that will dramatize the experience of English physician Jim Swire, whose 23-year-old daughter Flora died on Pan Am 103. Swire treated the ailing Megrahi in jail, became convinced of his innocence and launched a still-ongoing campaign to clear the Libyan’s name. [RB: Dr Swire visited Megrahi in jail, but he did not treat him.]

“It was this weird thing where you think you’ve found the person who killed your daughter, and then Jim ended up in the cell looking after him—because he’s a doctor and the guy wasn’t well—and it’s obvious as the nose on your face that Megrahi didn’t do it,” Sheridan told The Hollywood Reporter, adding that Swire will be among his guests at the inaugural Dublin Arabic Film Festival, which Sheridan is staging in Ireland on May 8. The director’s Hollywood publicist said Monday he was traveling and unavailable for comment.

“Somebody should reach out to Mr. Sheridan and tell him he’s betting on the wrong horse,” said Frank Duggan, president of the nonprofit group, Victims of Pan Am 103 Inc, which represents relatives of the Americans killed in the Boeing 747’s explosion. “It would do a lot of damage,” added Duggan, who served as the family liaison for  the President’s Commission on Aviation Security and Terrorism, which was established in response to the Lockerbie tragedy. “It keeps stirring the pot for all the crazies and deniers to say, ‘Aha! See, we were right!’”

Retired FBI agent Richard Marquise, who led the US task force during the Lockerbie investigation and has written extensively about the case, said Sheridan seems to be aligning himself with “10,000 conspiracy theories, none of which has ever been tested in court. It’s a bunch of speculation and hypotheses and I feel bad that somebody is going to stake his reputation on it…Maybe that would sell a movie, but it wouldn’t be the truth.”

Retired FBI official Oliver “Buck” Revell, the bureau’s associate deputy director who rode herd on the American end of the Lockerbie investigation, told The Daily Beast: “As with our Hollywood filmmakers, truth has little or nothing to do with filmmaking and most documentaries. I am well satisfied to let the verdict and evidence that supported it stand. I do favor the investigation continuing, for I am certain that many of Megrahi’s superiors were complicit in this terrible crime.”

Megrahi, who when Flight 103 exploded was head of security for Libya’s national airline and allegedly a Libyan intelligence agent, was convicted of 270 counts of murder, and sentenced to life in prison, by a three-judge Scottish panel in January 2001. The evidence against him was circumstantial; a shopkeeper in Malta, where the bomb was allegedly put aboard the 747, identified Megrahi as the man who purchased the clothes that were found in the suitcase where the device had been concealed. Megrahi also had a business relationship with a Swiss company that manufactured the device’s timer, and he had traveled to Malta from Tripoli on a false passport—all damning pieces of evidence.

Megrahi consistently asserted his innocence. He appealed the verdict and lost, and a second appeal was abandoned after his defense team decided it might hamper legal efforts for an early release. Over bitter protests from the Obama administration, Scottish officials ultimately released him in August 2009, on the grounds that he was suffering from advanced prostate cancer and had only an estimated three months to live.

He was flown back to Libya on Muammar Qaddafi’s personal jet, accompanied by Qaddafi’s son Saif, and greeted by a triumphal celebration at the airport—a spectacle that enraged US government officials and American relatives of the Lockerbie dead. He survived another three years, living out his last days in a posh villa in Tripoli. Ironically, he outlasted Qaddafi, who was killed in a popular uprising in October 2011, after being toppled from power and dragged bruised and bleeding through the streets.

Dr Swire is among the more conspicuous supporters of Megrahi’s innocence and alternative theories of the Flight 103 disaster, which include claims that the explosion was the result of a drug deal gone bad, the work of Palestinian terrorists, or even retaliation by the Iranians, whose civilian airliner, Iran Air Flight 655, was shot down without justification by a US Navy missile cruiser, killing all 290 people aboard, just 5 1/2 months before the Lockerbie disaster.

“Dr Swire is not a credible figure,” Duggan said, adding that US investigators initially liked the Iranian theory but were unable to find any evidence to corroborate it. “I’d like to say to Sheridan that you need to learn the facts before you assume that Megrahi was innocent. You need to look at other family members besides Dr Swire. I don’t know any American family members who agree with him.”

[Frank Duggan, a man whose knowledge of the facts of Lockerbie is so sketchy that he was able to be shown up on air by George Galloway, says that Dr Jim Swire is not a credible figure.  That really is rich!]

Families of Lockerbie bomb victims in new bid to overturn Megrahi conviction

[This is part of the headline over a report published today on the website of the Daily Record and Sunday Mail.  It reads as follows:]

The families of Lockerbie bombing victims will launch a fresh appeal to overturn the conviction of Abdelbaset al-Megrahi on the second anniversary of his death.

The Libyan intelligence officer was the only man found guilty of blowing up Pan Am flight 103, which killed 270 people on December 21, 1988.

But campaigner Dr Jim Swire, whose 23-year-old daughter Flora was killed in the bombing, and other victims’ relatives believe he was innocent and will lodge an appeal against his conviction next month.

Jim said: “Megrahi became my friend after I realised that he had nothing to do with the murder of my daughter.

“I hope the appeal will succeed and, when it does, it means Megrahi’s family are no longer regarded as the family of the so-called Lockerbie bomber.

“The second thing is, I am getting older – I am 78 – and handing over the baton to lawyers will be a huge relief. There are a lot of legal people in Scotland who want to see this issue properly resolved.”

Jim says there are 20 UK-based Lockerbie families who are involved in the appeal and want the evidence that led to Megrahi’s conviction to be re-examined.

He added: “I have not approached US relatives because there is a fixed idea among nearly all of them that Megrahi was guilty because the court found him guilty.

“They don’t appear to me to be interested in re-examination of evidence that led to his conviction. I think to ask them to join in this would be to invite vehement antagonism.”

Megrahi was released from Greenock prison by the Scottish Government in August 2009 after being diagnosed with prostate cancer and died protesting his innocence.

The relatives of 20 British victims will now lodge an appeal with the Scottish Criminal Cases Review Commission (SCCRC), who investigate alleged miscarriages of justice.

It is the third time Megrahi’s conviction has been the subject of an appeal.

After he received his life sentence in 2001, Megrahi appealed but it was thrown out by judges.

A second appeal saw the SCCRC refer the case back to the High Court, suggesting there “may have been a miscarriage of justice” and it was “in the interests of justice” to look at the case again.

But in 2009, Megrahi, by then suffering from terminal prostate cancer, dropped his second appeal to improve his chances of being allowed to go home to Libya to die. The third appeal by Lockerbie families in Britain could now be launched on or near the second anniversary of Megrahi’s death on May 20, 2012.

Last month, in a documentary shown on Al-Jazeera, a former high-ranking Iranian intelligence agent said Iran was responsible for the attack.

It was supposedly in revenge for the destruction in July 1988 of an Iranian plane mistakenly shot down by USS Vincennes, killing 290 people.

Jim Sheridan plans Pan Am terror attack film

[This is the headline over a report published yesterday on the website of The Hollywood Reporter.  It reads as follows:]

Irish filmmaker Jim Sheridan is lining up a movie about the 1988 Pan Am terrorist bombing over Lockerbie, Scotland, which left 270 passengers and town residents dead.

Sheridan said he is working on a script with Irish screenwriter Audrey O’Reilly and that the film would "definitely happen in the next few years."

The attack continues to occupy hearts and minds on both sides of the Atlantic, as many of the dead were American and British.

"It’s a drama basically looking at the effect on a family of terrorism,” said Sheridan.

The Oscar-nominated filmmaker said that the narrative is set to follow the real-life story of Jim Swire, an English doctor whose daughter Flora was among the dead when Pan Am Flight 103 was blown up over the Scottish village on its way from London to the US.

Swire soon became a leading campaigner in the hunt to discover the truth about the terror attack and was unconvinced by the trial and the accusations leveled at Libya.

Eventually the doctor would go on to meet Abdelbaset al-Megrahi, the alleged Libyan intelligence officer who was jailed for the bombing, as a working medic.

Megrahi was released by the Scottish authorities on compassionate grounds to return to Libya to die in 2012 after being diagnosed with terminal cancer.

"It was this weird thing where you think you’ve found the person who killed your daughter, and then Jim ended up in the cell looking after him -- because he’s a doctor and the guy wasn’t well -- and it’s obvious as the nose on your face that Megrahi didn’t do it," said Sheridan.

Lockerbie recently returned to the headlines with a report in UK newspaper The Daily Telegraph claiming that the bombing was actually carried out by a Syria-based terror group under orders from Iran.

Abolghassem Mesbahi, a former Iranian intelligence officer who's since defected to Germany, claimed that the plane was downed in response to a US Navy strike just six months earlier on an Iranian commercial jet that killed 290 people.

"It’s scary what they didn’t reveal to us at the time," said Sheridan. "It doesn’t really matter, the people are dead and you can’t bring them back to life. But in the future, we need clear investigations of these things or else you’re going to end up with flight MH370 [the missing Malaysia Airlines plane]."

Swire is scheduled to be among the special guests at Sheridan’s inaugural Dublin Arabic Film Festival, which kicks off in the Irish capital’s Light House Cinema on May 8.

Other speakers at the four-day event are set to include Omar Sharif, who opens the festival with his acclaimed 2003 drama Monsieur Ibrahim, and Hany Abu-Assad, the director of Oscar-nominated Palestinian dramas Omar and Paradise Now.

Sheridan's 1989 debut, My Left Foot, garnered Oscars for Daniel Day-Lewis and co-star Brenda Fricker.

Sheridan followed up with In the Name of the Father, which won the Golden Bear at the 44th Berlin International Film Festival, and his resume also includes The Boxer, In America, Get Rich or Die Tryin' and Brothers.

[A further report on the same website can be read here.]

Problems and pitfalls of new SCCRC application and appeal

On 20 December 2013, I posted on this blog an item headed A new SCCRC application: problems and pitfalls, in which I explained (a) some of the hurdles that recent Scottish Parliament legislation had placed in the path of anyone seeking to bring the Megrahi conviction before the High Court of Justiciary for a further appeal and (b) how a Bill currently before the Scottish Parliament, once passed, would alleviate some of the problems.

It has just been announced that that Bill (which, amongst other things, highly contoversially proposes abolition of the requirement of corroboration in criminal proceedings) will proceed no further in the Scottish Parliament for at least one year.  That means that any further reference by the Scottish Criminal Cases Review Commission of the Megrahi case to the High Court (assuming that a fresh SCCRC application is on the cards) will be subject the current unamended legal provisions.

For ease of reference, here is my earlier blogpost, with the amendments to the law that would have taken place had the Bill proceeded in red type:

[In the light of recent speculation that a further application may be made to the Scottish Criminal Cases Review Commission with a view to securing a third appeal to the High Court of Justiciary against the conviction of Abdelbaset Megrahi, I set out the legislative provisions that are in force, or are likely to be in force when any such application comes to be considered.

The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (the Cadder Act) currently provides as follows:]

7 References by the Scottish Criminal Cases Review Commission

(1) The 1995 Act [the Criminal Procedure (Scotland Act 1995] is amended as follows.

(2) In section 194B (SCCRC's power to refer cases to the High Court), in subsection (1), before “the case” insert “ , subject to section 194DA of this Act, ”.

(3) In section 194C (grounds for reference)—

(a) the existing words become subsection (1), and

(b) after that subsection, insert—

“(2) 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.”.

(4) After section 194D, insert—

“194DA High Court's power to reject a reference made by the Commission

(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.

(3) On rejecting a reference under this section, the High Court may make such order as it considers necessary or appropriate.”.

[In other words the SCCRC, in determining whether it is in the interests of justice to refer a conviction to the High Court, must have regard to the need for finality and certainty in the determination of criminal proceedings. Likewise, even if the SCCRC refers a case, the High Court itself may refuse to hear the appeal as not being in the interests of justice, having regard to the need for finality and certainty in the determination of criminal proceedings.

However, the Criminal Justice (Scotland) Bill currently before the Scottish Parliament and due to complete Stage 1 of its parliamentary progress on 28 February 2014, will make the following changes to the law:]

82 References by SCCRC

(1) The 1995 Act is amended as follows.

(2) In section 194B—

(a) in subsection (1), for “section 194DA of this Act” there is substituted “subsection (1A)”.

(b) after subsection (1) there is inserted—

“(1A) Where the Commission has referred a case to the High Court under subsection (1), the High Court may not quash a conviction or sentence unless the Court considers that it is in the interests of justice to do so.

(1B) In determining whether or not it is in the interests of justice that any case is disposed of as mentioned in subsection (1A), the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.”.

(3) The title of section 194B becomes “References by the Commission”.

(4) Section 194DA is repealed.

[In other words, if this Bill is enacted the SCCRC, in determining whether it is in the interests of justice to refer a conviction to the High Court, must still have regard to the need for finality and certainty in the determination of criminal proceedings.  But if the Commission makes a reference, the High Court will no longer have the power to refuse to hear the appeal on “finality and certainty” grounds; though, once the appeal has been heard, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings before deciding that it is in the interests of justice to allow the appeal and quash the conviction.

There is, of course, a further problem, even if the SCCRC referred the conviction back to the High Court.  Abdelbaset Megrahi is dead. Who would conduct any posthumous appeal on his behalf?  The relevant statutory provision is section 303A of the 1995 Act:]

(1) Where a person convicted of an offence has died, any person may, subject to the provisions of this section, apply to the High Court for an order authorising him to institute or continue any appeal which could have been or has been instituted by the deceased.

(2) An application for an order under this section may be lodged with the Clerk of Justiciary within three months of the deceased’s death or at such later time as the Court may, on cause shown, allow. (...)

(4) Where an application is made for an order under this section and the applicant—

(a) is an executor of the deceased; or

(b) otherwise appears to the Court to have a legitimate interest,

the Court shall make an order authorising the applicant to institute or continue any appeal which could have been instituted or continued by the deceased; and, subject to the provisions of this section, any such order may include such ancillary or supplementary provision as the Court thinks fit.

(5) The person in whose favour an order under this section is made shall from the date of the order be afforded the same rights to carry on the appeal as the deceased enjoyed at the time of his death and, in particular, where any time limit had begun to run against the deceased the person in whose favour an order has been made shall have the benefit of only that portion of the time limit which remained unexpired at the time of the death.

(6) In this section “appeal” includes any sort of application, whether at common law or under statute, for the review of any conviction, penalty or other order made in respect of the deceased in any criminal proceedings whatsoever.

[If a successful application to the SCCRC were made eg by a relative of a Lockerbie victim, would the High Court regard such a person as having “a legitimate interest”? It is fervently to be hoped that the court would not refuse to recognise someone like Dr Jim Swire as having a legitimate interest. But there can be no guarantee of this.  These obstacles go some way towards explaining why the institution by the Scottish Government of an independent inquiry into the Lockerbie investigation and prosecution and the conviction of Megrahi has been and remains my preferred option.]

Judicial reputations and rehabilitation of Scots criminal justice

[Six years ago today, I posted on the blog an item marking the death of Scottish judge Lord Macfadyen.  It read as follows:]

Lord Macfadyen, one of the five judges on the bench during the first Lockerbie appeal in 2002, died last week at the age of 62. He will be much missed: he was a good judge and a genuinely nice person.

In an obituary in today’s issue of The Herald, it is said that “His reputation on the bench was enhanced by the Lockerbie appeal of 2002.” This is quite simply not so: none of the Appeal Court judges enhanced his reputation by his participation in the Lockerbie appeal.

The court dismissed the appeal on the technical legal ground that Megrahi’s then legal team had submitted grounds of appeal that were incompetent and had not asked the court to address the correct issues (Was there enough evidence in law to convict him? Was the verdict of guilty one that, on the evidence, no reasonable tribunal could have reached?). In the course of the appeal hearing, a number of the judges, particularly Lords Kirkwood and Osborne, exposed the weaknesses in the Crown’s case against Megrahi at the trial. But, at the end of the day, the court held that it could adjudicate only on the (wrong and misconceived) issues raised by his lawyers. See “Lockerbie: A satisfactory process but a flawed result” section headed “The Appeal”.

The court’s decision, in my view, was a weak one. The final court of appeal in criminal matters in Scotland should decide cases on their substantive merits, not on technicalities or on the performance of the appellant’s legal representatives. None of the judges who concurred in this approach to the Lockerbie appeal enhanced his reputation.

[If, as has been reported, moves are afoot for a further appeal against the conviction of Abdelbaset Megrahi, five more Scottish judges will have an opportunity to enhance their reputations and to contribute to the much-needed rehabilitation of the reputation of the Scottish criminal justice system.]

The single decision ... which gives me the greatest pride

[The following paragraph is from an article headed I’m a Scottish Internationalist published today on the Derek Bateman Broadcaster blog. Derek Bateman is a former BBC presenter who is now one of the foremost pro-independence bloggers.]

As an independent nation, stripped of London’s influence, we can determine what our international priorities are. And they may be surprising. Scotland made one of the greatest public declarations of compassion a country can make when, in 2009, the Scottish government freed Abdelbasset al-Megrahi. You may disagree that he should ever have been released but I doubt if you can disagree that it was a decision that defied the major powers, notably America, and sent a message of love and forgiveness around the world. It is the single decision of the devolved government which gives me the greatest pride.