The worst Scottish miscarriage of justice since Oscar Slater

Most of the items posted on this blog record the published views of others on the Lockerbie case and the conviction of Abdelbaset Megrahi. Here, from this date six years ago, is one of the relatively rare articles written by me:

What should happen now

[My opinions about what should happen to Abdelbaset Megrahi now that he has been diagnosed with late stage prostate cancer are canvassed in a number of Sunday newspapers. What follows are my real views, expressed in my own words.]

Since 31 January 2001 -- the day the guilty verdict against Abdelbaset Megrahi was announced by the Scottish Court at Camp Zeist – I have made no secret of my belief in his innocence. His conviction, on the evidence led at the trial, was nothing short of astonishing. It constitutes, in my view, the worst miscarriage of justice perpetrated by a Scottish criminal court since the conviction of Oscar Slater in 1909 for the murder of Marion Gilchrist.

In this context it is highly relevant to note that one – by far the most important – of the grounds on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice in Mr Megrahi’s case was its view that no reasonable court could have reached the conclusion that the Lockerbie court did on a matter absolutely central to its reasons for convicting. The SCCRC said:

“[T]he Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House [which were in the suitcase that also contained the bomb] took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.”

But even if there were not overwhelming grounds for doubting the justifiability of the court’s verdict, there are other reasons for pressing for his release from prison, given his recent diagnosis of late-stage, untreatable prostate cancer.

The first of these reasons is compassion and humanity. There is a practice -- though not an invariable one -- within the Scottish Prison Service of releasing a prisoner who has only three months to live. We none of us know whether that stage has been reached in the progression of Mr Megrahi’s illness. But is it really necessary for those in whose power the decision lies, to wait until they are certain that that point has arrived? This particular prisoner finds himself incarcerated in a foreign country whose culture is alien to him. His sense of isolation at this time and the psychological strain on him must be greater than what would be suffered by a Scottish prisoner in a Scottish jail. Would it not be both appropriate as well as merciful for this to be recognized by the Scottish authorities?

Secondly, the delay in bringing Mr Megrahi’s current appeal to the hearing stage has been appalling. Had a measure of urgency been shown, it is entirely conceivable that the appeal could have been over before now and the appellant back with his wife and children in his own country, a free man. The SCCRC had his case under consideration for more than three years before referring it back to the High Court. The submission made to them was, admittedly, a long and detailed one. But the issue of the trial court’s unreasonable findings, mentioned above, is a very simple and straightforward one and required virtually no investigation other that a perusal of the relevant portions of the transcript of evidence. If the SCCRC decided early in its deliberations that the case was going to have to be referred back on this ground – and it is difficult to believe that it did not – then delaying taking that step for three years is hard to justify.

Then there is the delay that has occurred after the SCCRC referred the case to the High Court in June 2007.

More than sixteen months have passed since then. More than thirteen months have passed since the first procedural hearing in the new appeal was held. More than ten months have passed since the appellant’s full written grounds of appeal were lodged with the court. Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?

The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze is not in the book, have been asking the court to rewrite the book to insert it). These tactics include, to name but a few, raising difficulties about allowing the appellant access to productions used at the original trial; seeking to overturn previous appeal court decisions on the scope of the appeal in SCCRC references; and claiming public interest immunity on “national security” grounds in respect of documents which have been in the hands of the Crown for more than twelve years and which have been seen by the SCCRC. The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done little, if anything, meaningful to curb it.

Abdelbaset Megrahi has been shabbily dealt with by the Scottish criminal justice system. The Scottish Government has an opportunity now to treat him with compassion and dignity. I, for one, hope that it has the moral courage to seize this opportunity.

Incomprehensible verdict that could be reached only through deliberate malpractice

Around this time in October 2009 the Crown Office announced that there would be a review of the evidence in the Lockerbie case with a view to ascertainining whether persons in addition to Abdelbaset Megrahi should stand trial. On 25 October 2009 the following item was published on this blog:

Dr Swire doubts sincerity of Crown Office announcement

[In an article written for Scottish lawyers' magazine The Firm, Dr Jim Swire casts doubt on the sincerity of the Crown Office's announcement of a review of the evidence in the Lockerbie case. He writes:]

Naturally the UK Lockerbie relatives would love to see a fully enabled objective criminal investigation re-examining all the currently available Lockerbie evidence. 

But how can an objective criminal investigation not impinge on the verdict against Megrahi? The Crown Office's case against Megrahi depended on the evidence of identification by Gauci. 

Yet we now know that when the clothing was in fact bought from Gauci's shop, Megrahi was not even on the island of Malta, but Abu Talb was. We also now know that Harry Bell of the investigating Scots police recorded that the Americans wanted to give Gauci $10,000 'up front' with $2,000,000 to follow if conviction was successful. Clearly they must have thought the identification evidence critical.

It was in Talb's flat in Sweden that the Swedish police found further items of clothing from Gauci's shop. The Crown currently has no known explanation for this.

Yet if Talb, not Megrahi, bought the clothing, the verdict against Megrahi would have to be quashed. Are those currently and previously forming the Crown Office, as well as Colin Boyd, (the most implicated Lord Advocate), prepared to see their 'new investigative directions' lead to such an outcome? There is of course no evidence that any of them offered any inducements to Gauci or anyone else, but surely their careers and reputations depend on their past conduct of this case? So would the new criminal investigation be objective, I ask myself? 

I cannot free my mind of the words of Prof Hans Koechler, the UN's appointed special International Observer at the court: he thought the verdict so incomprehensible that it could only have been reached through (his words) 'deliberate malpractice’ by Scotland's Crown Office. 

So what to do? Observers should remember that under current Human Rights legislation and the Inquiries Act 2005, we the relatives have a right to a full and objective enquiry. 

Meanwhile those who swear by the Megrahi verdict might like to visit the London Review of Books website and search for 'Megrahi' they will find a devastating analysis as to the conduct of the trial written by Gareth Peirce, one of England's most noted miscarriage of justice and human rights lawyers. 

Further, if the Crown Office are really to refer matters as alleged (for I personally have no communication from them) to 'forensic experts' it is to be hoped that they will never again try to use the thoroughly discredited Hayes and Feraday. 

[In another article in the magazine, headed 'Cynicism and doubt over latest Crown Office “spoiler”', the following paragraph appears:

"Dr Jim Swire told the Firm that - contrary to their usual practice - the Crown Office have not even contacted him to advise that any new investigation was planned. He said the coincidental timing of the Crown’s announcement had unavoidably distracted attention from the same day announcement by UK Families [Flight] 103 that they had delivered a letter to the Prime Minister asking him to instigate a full independent inquiry into the Lockerbie event under the Inquiries Act 2005. He described the Crown’s act as a “spoiler,” pointing out that any investigation would be useless as long as the Crown refused to quash the outstanding guilty verdict against Megrahi."]

Virtually nobody believes the true facts about the destruction of Pan Am 103 have been revealed

Five years ago on this date an item headed Why the Lockerbie families deserve an inquiry was posted on this blog. The families still deserve one. The item reads as follows:

[This is the heading over an editorial in the current edition of The Sunday Telegraph. It reads as follows:]

Telegraph View: There are strong grounds for a thorough and independent investigation into Britain's worst terrorist atrocity

Lockerbie is a name burned into the consciousness of the British public. Like Omagh and other places associated with atrocious terrorist outrages, it retains a grim resonance, more than 20 years after this vicious mass murder that saw 270 innocent people, including 51 British citizens, subjected to an exceptionally cruel death. To this day it remains the worst act of terrorism perpetrated on British soil. For the victims' families it is a wound that can never heal. The trauma would be alleviated, however, if the bereaved and the wider public could confidently feel that the circumstances had been investigated to the core and the truth established.

Today, therefore, we are proud to support the campaign being launched by relations of the victims to demand an independent inquiry into who ordered and carried out the bombing. This weekend, the families have written to Gordon Brown, the Prime Minister, requesting such a step. The demand is well founded: the Crown Office, the prosecuting authority in Scotland, is already pursuing fresh inquiries, following the withdrawal of a second appeal by Abdelbaset Ali Mohmed al-Megrahi, the man convicted of the Lockerbie bombing, in order to secure his release.

Particularly welcome is the assurance by Scottish authorities that this is no token gesture, but a thorough investigation, focusing partly on forensic evidence and with a full-time team of detectives assigned to it. The fact that the Scottish judiciary had given Megrahi permission to appeal for a second time testifies that experienced judges believed there was merit in further consideration of the case. This businesslike response by prosecutors and police requires to be supported by the Government ordering an independent inquiry.

Virtually nobody believes that the true facts about the destruction of Pan Am Flight 103 have been revealed. Alongside the inevitable conspiracy theories, there are substantive allegations regarding possible Iranian and Palestinian involvement that have never been properly investigated, not to mention a suspicious break-in that occurred at Heathrow Airport 17 hours before Flight 103 took off from there.

Potential scrutiny of such evidence was aborted by Megrahi's abandonment of his appeal. An independent inquiry would effectively test his appeal in absentia.

It would also go some way to restoring the reputations of the Scottish and British justice systems. The decision taken by the Scottish justice minister, Kenny MacAskill, to release Megrahi from prison on compassionate grounds and allow him to return to Libya, was the wrong one. The role of the British Government – the murky rumours of oil-related deals – was shameful. American officials remain angry at how the matter was handled.

If the authorities had investigated the case more rigorously and placed all the evidence in the public domain, an inquiry would not now be necessary. Considering the history of obfuscation surrounding the Lockerbie case, however, the details must be brought into the light of day. Nobody is asking for an open-ended, Bloody Sunday-style inquiry; but a full, detailed and public investigation of all the available evidence is now essential, if any kind of closure is to be achieved for the victims' families and the country.

[The same newspaper contains a report headed "Police relaunch Lockerbie bombing investigation" which reads in part:]

Authorities secretly ordered the re-examination of all evidence following the decision by Abdelbaset Ali Mohmed al-Megrahi to drop his appeal against his conviction for mass murder. (...)

The Sunday Telegraph has seen the email sent by the Crown Office, Scotland's prosecuting authority, to British relatives of victims informing them of the new investigation, which includes a review of forensic evidence.

In the email, Lindsey Miller, a senior Procurator Fiscal who was involved in preparing evidence for Megrahi's trial, wrote: "Throughout the investigation we have, at various times, taken stock of the evidence as a whole with a view to identifying further lines of inquiry that can be pursued.

"Now that the appeal proceedings are at an end a further review of the case is under way and several potential lines of inquiry, both through a 'desktop' (paper) exercise and consultation with forensic science colleagues are being considered.

"You will of course appreciate that it would not be appropriate for me to elaborate on these lines but please be assured that this is not simply paying lip service to the idea of an 'open case'."

The investigation is understood to be headed by Detective Chief Inspector Michael Dalgleish, a senior officer who was part of the original team that brought the case against Megrahi. Four detectives from Dumfries and Galloway police, which covers the Lockerbie area, are working full-time on the case. (...)

Pam Dix, whose brother Peter died in the explosion, said last night: "This new investigation gives us new hope. It has to be right that police don't see this as concluded.

"Even if Megrahi was guilty, he could not possibly have carried out the bombing unaided and if he is not guilty then not a single one of the conspirators of the Lockerbie bombing have been brought to justice.

"This email implies they are looking at all the forensics again and that has to be a good thing. Police have always said the case is open and not closed as such but they have never said they are looking at all the evidence afresh."

[Note by RB: As the editorial in The Sunday Telegraph recognises, what is needed is an independent inquiry. But the police open case review is at least a start. However, it is difficult to disagree with Dr Jim Swire, as quoted on the heraldscotland website:

“I think that if they are really going to a meaningful investigation then that is all well and good and long overdue. I would be all for it.

“But if it is just a dodge to prevent an investigation into why the lives of those killed were not protected then I would be livid."

As regards the scope of this investigation, the Crown Office is quoted in Scotland on Sunday as saying:

"There is no question of reopening the case against Megrahi. The open case concerns only the involvement of others with Megrahi in the murder of 270 people and the Crown will continue to pursue such lines of inquiry that become available.

"The trial court accepted the Crown's position that Mr Megrahi acted on in furtherance of the Libyan intelligence services and did not act alone. 

"The Crown stood ready, willing and able to support his conviction throughout the appeal process which he abandoned."]

President Mandela's October 1997 visit to Libya

[What follows is the text of a Reuters news agency report from 23 October 1997:]

South African President Nelson Mandela, sternly dismissing US reservations about his mission, arrived in Libya on Wednesday for a visit described by diplomats as the most important for Muammar Gaddafi since the United Nations clamped sanctions on his nation in 1992.

Mandela, his Mozambican companion, Graca Machel, and Foreign Minister Alfred Nzo arrived at the Libyan border town of Ras Adjir by helicopter from the nearby Tunisian resort island of Djerba and drove across the frontier and 160 km (100 miles) to Tripoli. The trip was made by road because of an air embargo imposed on Libya by the United Nations.

Mandela's 50-vehicle convoy passed under a series of welcoming banners, including one that set the tone for his visit saying: "Mandela's visit to Libya is a devastating blow to America."

After a triumphant cavalcade around downtown Tripoli, Mandela, 79, was greeted by Gaddafi outside the ruined home in which the Libya leader's daughter, Hana, was brutally killed in a US air raid more than 10 years ago.

Greeting Gaddafi with a hug and a kiss on each cheek, Mandela told him: "My brother leader, my brother leader. How nice to see you."

Shortly afterwards, he told reporters he remained unimpressed by US opposition to his mission, adding:"Those who say I should not be here are without morals. I am not going to join them in their lack of morality."

Mandela said he had spent 27 years in jail rather than abandon his principles under pressure and said he felt the same way about his debt to Gaddafi and the Libyan people for their support in the struggle against apartheid.

"This man helped us at a time when we were all alone, when those who say we should not come here were helping the enemy (South Africa's white government)," Mandela said.

He reiterated South Africa's policy on the sanctions imposed by the United Nations to force Libya to hand over two suspects in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland -- saying a way should be found to lift them.

Mandela said South Africa supported the Organisation of African unity's call for a trial in a neutral third country.

He said he would seek to promote a resolution of the stalemate between Libya and the United States and Britain at the Commonwealth summit in Edinburgh next week.

"It would be premature now to say exactly how we are going to search for a solution. (We) feel that to maintain these sanctions is to punish the ordinary people of Libya and that is why there is now great concern that the remaining sanctions must be lifted," he said.

Diplomats in Tunisia said Mandela was Gaddafi's most significant guest since the UN banned air travel to the North African state. "Colonel Gaddafi receives a regular stream of African leaders in Tripoli, but it would be fair to say that with his international stature, Mr Mandela is the most significant visitor he has received since 1992," said an African diplomat. The United States has branded Libya a terrorist state and, in line with its policy of discouraging trade or diplomatic relations, on Monday renewed its objection to Mandela's visit. "We would be disappointed if he decided to make such a trip. To give (the Libyans) any solace at a time like this would be unfortunate," said US State Department spokesman James Rubin.

Ebrahim Saley, South Africa's ambassador to Tunisia and Libya, told Reuters, however, Libya had offered Mandela's ANC consistent moral support throughout the 30-year armed struggle against white rule in South Africa, including training and financial backing that helped the party to sweep apartheid into history.

Mandela visited Libya twice between his release from jail in 1990 and his election as South Africa's first black leader in 1994, but has not been to Tripoli since becoming president.

Abdalla Abzubedi, Libya's ambassador to South Africa, told Reuters the visit would focus on regional peace-making efforts and bilateral trade. Asked whether the Lockerbie issue could be raised, he said: "President Mandela always makes a difference to any international issue - especially in Africa."

Relative of Syracuse University 2014 Remembrance Scholar died on Pan Am 103

Today’s edition of the Daily Orange, the newspaper of Syracuse University, New York, thirty-five of whose students died on Pan Am 103, contains a moving article about one of the university’s 2014 Remembrance Scholars. The article is headed Coming full circle and subheaded Student honors family member who died in Pan Am Flight 103 bombing by becoming Remembrance Scholar.

The Megrahi scandal reprised

[What follows is the text of an item posted on this blog on this date four years ago:]

The Megrahi scandal

[This is the headline over an article by me just published on the website of the Scottish Review. It was written in response to a letter that appeared on the site yesterday from retired solicitor Alistair R Brownlie OBE, criticising the Megrahi petition. Other SR readers have written in supporting the petition and their contributions can be accessed on the same web page. My article reads as follows:]

At the end of June 2007, the Scottish Criminal Cases Review Commission (SCCRC) referred Abdelbaset Ali Mohmed al-Megrahi's conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, the Crown and the High Court) extends to more than 800 pages, accompanied by 13 volumes of appendices.

The commission, in the published summary of its findings, indicated there were six grounds on which it had concluded a miscarriage of justice might have occurred. Strangely, only four of these grounds are enumerated in the summary. They are:

• That there was no reasonable basis for the trial court's conclusion that the date of purchase of the clothes which surrounded the bomb was 7 December 1988, the only date on which Megrahi was proved to have been on Malta and so could have purchased them. The finding that he was the purchaser was 'important to the verdict against him'.

• That evidence not heard at the trial about the date on which Christmas lights were switched on in Malta further undermined the trial court's conclusion that the date of purchase was as late as 7 December.

• That evidence was not made available to the defence that four days before the shopkeeper made a tentative identification of Megrahi at an ID parade he had seen a magazine article containing a photograph of Megrahi, linking him to the bombing.

• That other evidence which undermined the shopkeeper's identification of Megrahi and the finding as to the date of purchase was not made available to the defence.

The reasons given by the commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence (such as the payment to a key prosecution witness of $2m) which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence.

The prima facie miscarriage of justice identified by the commission includes the trial court's finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser. This was the cornerstone of the Crown's case against him. If, as suggested, that finding had no reasonable basis in the evidence, then there is no legal justification for his conviction.

I have always contended that no reasonable tribunal could have convicted Megrahi on the evidence led. Here is one example of the trial court's idiosyncratic approach to the evidence. Many more could be provided.

A vitally important issue was the date on which the goods that surrounded the bomb were purchased in Malta. There were only two live possibilities: 7 December 1988, a date when Megrahi was proved to be on Malta, and 23 November 1988, when he was not. In an attempt to establish just which of these dates was correct, the weather conditions in Sliema on those two days were explored.

Shopkeeper Tony Gauci's evidence was that when the purchaser left his shop it was beginning to rain heavily enough for his customer to think it advisable to buy an umbrella to protect himself while he went in search of a taxi. The unchallenged meteorological evidence led by the defence established that, while it had rained on 23 November at the relevant time, it was unlikely to have rained at all on 7 December and, if there had been any rain, it would have been at most a few drops, insufficient to wet the ground. On this material, the judges found in fact that the clothes were purchased on 7 December.

On evidence as weak as this, how was it possible for the trial court to find him guilty? And how was it possible for the appeal court in 2002 to fail to overturn the conviction? The Criminal Appeal Court dismissed Megrahi's first appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court's factual findings at all. Indeed, it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence.

I contend that at least part of the answer lies in the history of the Scottish legal and judicial system. For centuries courts have accorded a specially privileged status to the Lord Advocate. It has been unquestioningly accepted that, though a political appointee and the UK government's (now the Scottish Executive's) chief Scots law adviser, he (now she) would at all times, in his capacity as head of the prosecution system, act independently, without concern for political considerations, and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction.

This vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court judges (and lower court judges) were nominated for appointment to the Bench by the Lord Advocate of the day. This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.

I believe that, subconsciously at least, the judges were reluctant to reach a verdict acquitting both accused because of the humiliation that this would entail for the office of Lord Advocate in the most high profile prosecution ever brought in the Scottish courts.

Megrahi launched an appeal based on the SCCRC findings, but abandoned it in 2009 in order to maximise his prospects of repatriation to Libya when terminal metastatic prostate cancer was diagnosed. But the concerns regarding the propriety of his conviction raised by the SCCRC and others have not disappeared.

Lord Denning tarnished his reputation by expressing the view that an alleged miscarriage of justice should not be investigated because it might undermine confidence in the English criminal justice and judicial systems. It is sad to see Alistair Brownlie appearing to take the same stance in Scotland.

Lord Advocate accuses Libya of obstructing Lockerbie trial

[What follows is the text of a press release issued by the Crown Office on this date in 1997:]

The Lord Advocate, the Rt Hon Lord Hardie QC, today reaffirmed his commitment to bring the two Libyans accused of the Lockerbie bombing to trial in Scotland or the United States and accused Libya of prevarication and inconsistency in preventing this.

Speaking at the International Court of Justice at The Hague this morning Lord Hardie, who is leading the British legal team at the case brought by Libya against the United Kingdom, said in his concluding remarks:

“This is not an ordinary case. I remind the Court of my primary responsibility as Lord Advocate of Scotland. It is my duty to bring persons charged with crimes to justice. In this case justice is being delayed and justice has therefore been denied since Libya first refused to hand over these two accused in 1991. I want to discharge my duty, which amounts to no more and no less than the presentation of the case to a jury of 15 ordinary citizens chosen at random.”

Replying to suggestions that the United Nations Security Council, which supports Britain’s position, did not fully represent international opinion the Lord Advocate said:

“I will say only this. It is from the whole membership of the United Nations that the changing membership of the Security Council is drawn. It is the whole membership of the United Nations who have entrusted the responsibility of international peace and security to the Security Council. It is the whole membership of the United Nations who have agreed to accept and carry out the decisions of the Security Council. It is the whole membership of the United Nations who now look to Libya to implement the resolutions of the security council without further evasion and procrastination.

“On behalf of the relatives of the dead, on behalf of the people of Scotland, on behalf of the broader international community, who are watching these proceedings, I would urge this court to reach a decision which will expedite a trial of these men in Scotland or the United States of America.”

Earlier the Lord Advocate had said that while Libya had repeatedly talked about removing its constitutional impediment to the handing over of the accused it had done nothing about it. The Lord Advocate pointed out that several times in the past Libya had referred to action which could be taken to overcome these internal obstacles to extradition of its nationals. “If action had followed these words,” he said, “there would be no obstacle to a trial in Scotland.”

The Lord Advocate also repeated his offer to invite international observers to attend and monitor the trial and detention of the accused and stressed that any matter relative to the fairness of the trial could also be considered under the European Convention on Human Rights. He rejected as “offensive and without substance” Libyan claims that “incantations on the virtues and impartiality of Scottish or American judges are derisory” and underlined that the United Kingdom had been at pains to avoid making statements which prejudge the criminal case. He said “potential jurors are more likely to have been bombarded with ubiquitous reports, films, books and articles putting forward alternative explanations for the responsibility of the crime and suggesting the innocence of the accused.”

It is expected that the International Court will come to a decision on the case brought by the Libyans early in the New Year.

[RB: The case in the International Court of Justice was withdrawn by Libya after Megrahi and Fhimah surrendered themselves for trial. The UK and the USA had earlier sought to have the case dismissed on the basis that the UN Security Council Resolution requiring Libya to hand the suspects over trumped the Montreal Convention which entitled Libya to try them in its domestic courts. The Court resoundingly rejected the UK/US arguments (with the UK and US judges dissenting).

It was another nine months from the date of Lord Hardie’s statement before the UK and the USA agreed to a non-jury trial in the Netherlands, a proposal that had been accepted by the Libyan Government and the Libyan defence lawyers since January 1994. The history can be found here.]

Libya is more dangerous than ever

[This is the headline over an article published today on the website of the Sri Lankan newspaper The Nation. The following are excerpts:]

It is less than three years since Colonel Muammar Gaddafi, the former Libyan dictator, was murdered by his own people. His savage killing, which took place on 20 October 2011, near Sirte, was welcomed with almost sadistic relish by western politicians. RAF and French warplanes had “facilitated” the butchery, the despot’s corrupt and inhumane regime was gone, “friendly” rebels were in charge, and gung-ho TV news channels were there to record the celebrations. “Job done” was the reassuringly simplistic verdict.

Nicolas Sarkozy, the French President who had pressed for the Nato bombing campaign that guaranteed Gaddafi’s demise, was particularly jubilant. He was greeted as a “liberator” in Tripoli, along with David Cameron, Prime Minister of the country that had poured the most resources into the adventure – up to £900m of British taxpayers’ money according to some calculations.

Nobody would deny that an end to the Gaddafi regime was long overdue. It was characterized by numerous human rights abuses, including the murder of more than 1,000 prisoners – mainly political opponents – at the Abu Salim prison in 1996. Gaddafi was also linked with a long list of heinous crimes abroad, such as the bombing of Pan-Am flight 103 over Lockerbie, Scotland, in 1988 with the loss of 270 lives, and the murder of police officer Yvonne Fletcher in central London in 1984.

While UN Resolution 1973, the one that gave the green light to military intervention, had by no means authorized regime change, a dead Gaddafi heralded peace, prosperity and, crucially, a “strong and democratic future”, according to Cameron.How dismal all that sounds today. It was US air force jets flying above Tripoli this week, and their job was to guarantee the safety of their escaping diplomats. British and French subjects were also fleeing in fear of their lives. Even the UN mission was shut down.

Rebel infighting makes almost everywhere unsafe. Assassinations are routine, robbers stalk the roads, while water and electricity supplies are regularly interrupted. (...)

Those of us who visited the rapidly expanding glass-and-steel infrastructure of the commercially minded Libya at the start of the revolution saw hope in the country’s technical class. Highly trained engineers, energy workers, and numerous other professionals all wanted to do business globally, offering the possibility of radical transformation for the good.

Instead, western leaders put faith in unregulated forces carrying a vast arsenal of weapons, including surface-to-air missiles. Many of the warlords have strong links with Islamist terrorist groups operating across the deserts of North Africa.The repressive Gaddafi decades had kept these warring tribes in check through unacceptable levels of brutality. Viable political institutions and a credible security apparatus are now urgently needed, but none of the “liberators” seem interested any more.

Sarkozy is now an alleged criminal himself – he is being actively investigated in France for receiving up to £50m in illegal cash from Gaddafi to fund his 2007 election campaign. Examining judges are said to want to know why the so-called “brother leader” was honored with a state visit to Paris that year, and treated like a personal friend by Sarkozy. Sarkozy denies the charges. France’s current Socialist president, François Hollande, does not even mention Libya, and nor does Barack Obama. The US president was always lukewarm in supporting the intervention in Libya in the first place, making sure that his forces only played a supply role in the military campaign.

Cameron is now similarly lackluster about the growing crisis in a country he was once so proud to visit in person. The barbaric manner in which Gaddafi was killed should surely have provided him, and indeed the entire international community, with a stark warning about what was to follow.

Silence on the biggest outrage ever perpetrated in the UK is truly terrifying

[What follows is an item posted on this blog on this date in 2007:]

Lockerbie's indelible stain

What follows is a letter published in The Scotsman from Iain McKie, father of one of Scotland's recent miscarriage of justice victims. The comments at

http://thescotsman.scotsman.com/letters.cfm?id=1655982007

are also well worth reading. [RB: Regrettably, the comments no longer appear on the newspaper's website.]

"As Lockerbie is once again thrust into the public conscience, I challenge everyone who aspires to a true and just Scotland to ensure that this tragedy is constantly at the forefront of his or her mind. 

“The dissembling dishonesty that cast a shadow over every aspect of the Lockerbie investigation has left an indelible stain on Scottish justice and remains an insult to the memory of the 270 souls who perished over 18 years ago. 

“It has corrupted a once respected system of jurisprudence forged over the centuries from the Scottish Enlightenment and demeans the worldwide legacy of Scots like David Hume and Robert Burns.

“We now live in a culture that favours political expediency, lying and mediocrity, over openness and accountability. As governments at home and abroad pledge to fight terrorism at every turn, their silence on the biggest outrage ever perpetrated in the UK is truly terrifying. 

"As Burns put it, 'There's nane ever fear'd that the truth should be heard, but they whom the truth would indite.' As a Scot, I believe it is my duty to fight for the truth about Lockerbie to be heard because that single injustice encapsulates everything that I loathe and despise about our otherwise great country."

The tortuous path towards a Lockerbie trial

[What follows is the text of a report published on this date in 1998 by The Associated Press news agency:]

Britain said Friday it would not negotiate Libya's demand that two suspects, if convicted in the 1988 Pan Am bombing over Scotland, serve their prison terms in Libya or the Netherlands.

A US-British proposal to try the men in the Netherlands under Scottish law calls for any sentences to be served in Britain.

“We are not in discussion with the Libyans about this and we are not negotiating on it,'' said Britain's UN ambassador, Jeremy Greenstock.

Two Libyan intelligence agents, Abdel Basset Megrahi and Lamen Khalifa Fhimah, are accused of planting the suitcase bomb that ripped apart the New York-bound Pan Am jet on Dec 21, 1988, killing 270 people in the air and on the ground at Lockerbie.

Aside from Britain's refusal to negotiate with Libya over jail sites, Greenstock assured that the suspects' religious rights would be respected and pledged that any witnesses brought in to testify would be immune from any charges related to the bombing while they were in the Netherlands.

“They have a guarantee of immunity in that sense,'' Greenstock said.

He spoke to reporters after briefing the Security Council on Britain's efforts to clarify certain legal and technical questions that have been posed by Libya regarding the US-British plan.

Greenstock said he had passed along to the UN chief a “full set of clarifications,'' earlier this week regarding various aspects of the proposed trial and procedures surrounding it.

For years, Britain and the United States demanded that the trial take place in the United States or Britain. Libya refused to hand the men over, fearing they would never get a fair trial in either country.

The United States and Britain agreed in August to hold the trial in the Netherlands, using Scottish judges and Scottish law, in an attempt to achieve justice in the 10-year-old case.

The Security Council backed the proposal by agreeing to suspend an international travel ban on Libya once the two suspects arrived in the Netherlands for trial. While giving its qualified acceptance of the proposal, Libya has sought several clarifications, one of which is the demand that any sentences be served in Dutch or Libyan prisons.

A Libyan legal team was in New York recently to discuss details of the proposal with the UN legal team.

[This report illustrates the problems that were encountered in the process of securing a Lockerbie trial. The United Kingdom government refused to negotiate directly with the Libyan government or the Libyan defence lawyers over the fine print of the US-UK proposal for a trial in the Netherlands. Matters that could have been clarified or settled within minutes if the parties had only sat round a table took weeks through an intermediary (Hans Corell, UN Under-Secretary-General and Legal Counsel). Here is what I have said before about the process:]

Although the British proposal was announced in late August 1998, it was not until 5 April 1999 that the two suspects actually arrived in the Netherlands for trial before the Scottish court.  Why the delay? The answer is that some of the fine print in the two documents was capable of being interpreted, and was in fact interpreted, by the Libyan defence team and the Libyan government as having been deliberately designed to create pitfalls to entrap them.  And since the governments of the United Kingdom and United States resolutely refused to have any direct contact with either the Libyan government or the Libyan defence lawyers, these concerns could be dealt with only through an intermediary, namely the Secretary-General of the United Nations.