The most blatant Scottish miscarriage of justice for 100 years

[What follows is an excerpt from an interview with me published in Lockerbie’s local weekly newspaper, the Annandale Herald, on this date in 2009:]

Q. You are credited with being one of the “architects” of the first trial at Camp Zeist. What was your involvement at that time?

A. My personal involvement in the aftermath of the destruction of Pan Am 103 began in early 1993. I was approached by representatives of a group of British businessmen whose desire to participate in major engineering works in Libya was being impeded by the UN sanctions that had been imposed on Libya in an attempt to compel the surrender for trial in Scotland or the United States of America of their two accused citizens. They asked if I would be prepared to provide independent advice to Libya with a view (it was hoped) to persuading them their citizens would obtain a fair trial if they were to surrender to the Scottish authorities. I submitted material setting out the essentials of Scottish solemn criminal procedure and the various protections embodied in it for accused persons. It was indicated to me that the Libyan government was satisfied regarding the fairness of a criminal trial in Scotland but, since Libyan law prevented the extradition of nationals for trial overseas, the ultimate decision would have to be one taken voluntarily by the accused persons themselves.

For this purpose a meeting was convened in Tripoli in October 1993 of the international team of lawyers appointed to represent the accused. I am able personally to testify to how much of a surprise and embarrassment it was to the Libyan government when the outcome of the meeting of the defence team was an announcement that the accused were not prepared to surrender themselves for trial in Scotland. At a private meeting I had in Tripoli a day later it was explained to me the primary reason for the unwillingness of the accused to stand trial in Scotland was their belief that, because of unprecedented pre-trial publicity over the years, a Scottish jury could not possibly bring to their consideration of the evidence the impartiality and open-mindedness accused persons are entitled to expect and that a fair trial demands.

I returned to Tripoli and in 1994 and presented a detailed proposal that a trial be held outside Scotland, ideally in the Netherlands, in which the governing law and procedure would be that followed in Scottish criminal trials on indictment but with the jury of 15 persons replaced by a panel of judges. In a letter to me it was stated the suspects would voluntarily surrender themselves for trial before a tribunal so constituted. The Deputy Foreign Minister of Libya stated his government approved of the proposal. I submitted the relevant documents to the Foreign Office in London and the Crown Office in Edinburgh. Their immediate response was that this scheme was impossible, impracticable and inherently undesirable, with the clear implication that I had taken leave of what few senses nature had endowed me with. However, from about late July 1998, following interventions supporting my “neutral venue” scheme from, amongst others, President Nelson Mandela, there began to be leaks from UK government sources to the effect that a policy change over Lockerbie was imminent; and on 24 August 1998 the governments of the United Kingdom and United States announced they had reversed their stance on the matter of a “neutral venue” trial. And after a number pitfalls were avoided, the suspects surrendered themselves for trial.

Q. What is your view of the legal process involving the case since then?
A. The outcome of the trial was a real shock. Since the day of the verdict I have consistently maintained the conviction of Abdelbaset Megrahi was contrary to the weight of the evidence and that the finding of guilt against him was a conclusion no reasonable tribunal could have reached on that evidence. I am glad to say my view appears to be shared by the Scottish Criminal Cases Review Commission, for this is one of the grounds on which it referred Megrahi’s case back to the High Court for a further appeal. As someone who has practised, taught and (as a part-time judge) administered the criminal law of Scotland for 35 years, I can confidently say that, in my opinion, the conviction of Megrahi is the worst and most blatant miscarriage of justice to have occurred in Scotland for a hundred years.

Q. What is your experience of meeting and working with victims’ families?

A. One of the great privileges accorded to me through my involvement in the Lockerbie case has been meeting, and forming friendships with, relatives of individuals killed aboard Pan Am 103: delightful people like Jim and Jane Swire, John and Lisa Mosey and Marina Larracoechea. My contacts with other relatives, particularly some American ones, have been less pleasurable. For some of them, anyone who expresses anything less than absolutely uncritical acceptance of the trial verdict and of Libyan culpability is a rogue and a scoundrel. How they will cope with the quashing of Megrahi’s conviction (which I believe to be inevitable if the current appeal goes the full distance) I hesitate to think.

"A witness, not a suspect"

[On this date in 2011 the media in the UK were still salivating over the arrival of Moussa Koussa. What follows is taken from a report in the Daily Mirror:]

Outraged relatives of Lockerbie victims yesterday called for Libyan “monster” Musa Kusa to be put on trial for mass murder.

They fear the former head of Colonel Gaddafi’s brutal secret service is trying to cheat justice and save his own skin in exchange for helping to topple the tyrant’s crumbling regime.

Kusa was being given the kid-gloves treatment last night as he was questioned by MI5 at a safe house in London after defecting to Britain.

And MI6, which operates abroad, is talking to at least six others about making the same move after David Cameron urged them to bail out while they still can.

But there is growing fury at the prospect of Kusa being let off the hook.

He is believed to have masterminded the 1988 strike on Pan Am Flight 103, which killed 259 passengers and another 11 people on the ground.

The ex-intelligence chief is also suspected of involvement in arming the IRA and holds vital information on the 1984 shooting of PC Yvonne Fletcher outside Libya’s London Embassy.

Frank Duggan, who represents relatives of Lockerbie victims said: “This man is a monster, a murderer. He was no longer inside Gaddafi’s inner circle and had nowhere else to go so he jumped ship.”

He said Britain already had a “dirty bib” for allowing Lockerbie bomber Abdelbaset al-Megrahi to return home to a life of luxury in Libya.

And he warned that the same must not happen to Kusa, adding: “This guy has a lot of blood on his hands. Once they have pumped him for information they should put him on trial either in Scotland or the US.” [RB: Rather naughty of the Daily Mirror not to specify that the only relatives that Frank Duggan -- not himself a relative -- represented were US, not UK, relatives. A report in The Herald, as might be expected from a serious newspaper, does make this clear.]

Jim Swire, whose daughter Flora was killed in the bombing, said last night he had asked his lawyers to try to fix a meeting for him with Kusa. He added: “Kusa knows everything about it.

“He was clearly running things. If Libya was involved in Lockerbie, he can tell us how they carried out the atrocity and why.” ­Scottish prosecutors and police yesterday confirmed they want to quiz Kusa over the bombing.

David Cameron insisted officers would get the chance – and claimed no deal had been done over the defector’s future.

He said: “The decision by the former Libyan Foreign Minister to come to London and resign his position is a decision by someone right at the very top. It tells a compelling story of the desperation and fear right at the top of the crumbling and rotten Gaddafi regime.” But he added: “Let me be clear, Musa Kusa is not being granted immunity, there’s no deal. Police should follow their evidence wherever it leads.”

Whitehall sources say it will be some time before police get to see Kusa and suggest that even then he could be treated as a witness, not a suspect.

[RB: Abdelbaset al-Megrahi would have been 63 today.]

UN sanctions imposed on Libya 23 years ago today

On this date in 1992 the United Nations Security Council adopted Resolution 748 imposing sanctions (including trade and air transport embargoes) on Libya for failing to hand over Abdelbaset al-Megrahi and Lamin Fhimah for trial in the United Kingdom or the United States (as had been required by Security Council Resolution 731 of 21 January 1992). Of the fifteen members of the Security Council, ten voted in favour and five abstained. 

The UN sanctions were eventually lifted on 12 September 2003 by Security Council Resolution 1506. Of the fifteen members of the Security Council, thirteen voted in favour and two (France and the United States) abstained. 

Separate US economic sanctions against Libya had been in force since March 1982. These remained until September 2004.

Memories of Moussa Koussa

[On this date in 2011, Moussa Koussa arrived in Britain. The following are excerpts from his Wikipedia entry (footnotes omitted):]

Moussa Muhammad Koussa (Arabic: موسى كوسا‎, Arabic pronunciation: [ˈmusaˌkosa]; born c. 1947) is a Libyan political figure and diplomat, who served in the Libyan government as Minister of Foreign Affairs from March 2009, into the Libyan Civil War, when he resigned his position from the Gaddafi regime on 30 March 2011.

Koussa previously headed the Libyan intelligence agency from 1994 to 2009, and was considered one of the country's most powerful figures. He arrived in the United Kingdom on 30 March 2011. Later the UK Foreign and Commonwealth Office released an official statement saying that Koussa no longer wished to represent the Libyan government and intended to resign. He now lives in a small house in a suburb of Doha, Qatar, after being asked to leave his suite in Doha's luxurious Four Seasons hotel. He was a member of Gaddafi's inner circle. (...)

After departing Tripoli by car and arriving in Tunis, Tunisia, on 28 March 2011, via the Ras Ajdir border crossing, a Tunisian Government spokesman stated via Tunis Afrique Presse that Koussa had arrived on a "private visit." On 30 March 2011, he departed from Djerba on a Swiss-registered private jet, arriving at Farnborough Airfield, England, according to Libyan sources on a diplomatic mission. The Foreign and Commonwealth Office later released an official press statement, stating that Koussa no longer wished to represent the Libyan government and intended to resign, unhappy with Libyan Army attacks on civilians.

Scottish prosecutors interviewed Koussa about the Lockerbie bombing, which killed 270 people. At the time, Koussa was a leading member of al Mathaba.

Koussa left the United Kingdom and moved to Qatar following a European Union decision to lift sanctions against him, meaning he no longer faces travel restrictions or an asset freeze.

Moussa Koussa's role in the torture and deaths of Libyan people was alleged by the BBC television Panorama programme (broadcast on 24/10/2011). Koussa issued a statement to the press through his lawyer, strongly refuting the allegations.

[Items on this blog relating to Moussa Koussa can be found here.]

The Abu Nidal Organization and Lockerbie

[On this date in 2008 a long article entitled Lockerbie: The Man Who Was Not There by Dr Ludwig de Braeckeleer was published on the OhmyNews International website. It is full of interesting material, including extensive quotes from Richard Marquise, the FBI’s chief Lockerbie investigator. The following is just one short excerpt from the article:]

Atef Abu Bakr is a former spokesman for the Abu Nidal Organization (ANO) and one of Nidal's closest aides between 1985 and 1989. In a series of interviews published in the Arabic Al Hayat newspaper Bakr said that Abu Nidal told him that his organization was behind the explosion on Pan Am flight 103*.

"Abu Nidal told a meeting of the Revolutionary Council leadership: I have very important and serious things to say. The reports that attribute Lockerbie to others are lies. We are behind it."

"If any one of you lets this out, I will kill him even if he was in his wife's arms,"' Abu Nidal added, according to Bakr.

Having become persona non grata in Syria, Abu Nidal started his move from Syria to Libya in the summer of 1986. His operations, and those he falsely claimed, were bringing discomfort to Damascus. His move to Libya was completed by March 1987.

Settling in Tripoli, Abu Nidal and Libya's leader, Muammar al-Gaddafi, allegedly became close friends sharing, according to some observers, "a dangerous combination of an inferiority complex mixed with the belief that they were men of great destiny."

In the aftermath of the Pan Am Flight 103 bombing, Gaddafi, seeking to distance himself from Nidal, expelled him in 1999**.

* "Abu Nidal Behind Lockerbie, Says Aide."

** Abu Nidal Organization

New hearing in Lockerbie appeal bid

[This is the headline over a report by the Press Association news agency, as published on the Fife Today website, on yesterday’s High Court hearing in the SCCRC’s petition in the Megrahi case. The following are excerpts:] 

A hearing will take place at a later date to decide whether relatives of Lockerbie bombing victims could pursue an appeal on behalf of the only man convicted of the atrocity.

A group of British relatives maintain they have a "legitimate interest" in trying to get the case of Abdelbaset al-Megrahi back before a court for a full appeal.

They believe the Libyan, who died protesting his innocence in his home country in 2012, was the victim of a miscarriage of justice and say his conviction should be overturned.

The Scottish Criminal Cases Review Commission (SCCRC), which is once again looking at Megrahi's conviction, has asked the High Court for guidance on whether members of the victims' families can take forward such an appeal on the convicted man's behalf.

A brief procedural hearing took place before judge Lady Dorrian at the Appeal Court in Edinburgh today to examine the SCCRC's petition.

The judge ordered a further hearing to take place, on a date yet to be fixed, for all the issues surrounding the commission's request to be aired.

The one-day hearing is expected to take place later this year. (...)

Since June last year, the SCCRC has been considering a fresh, joint application from members of Megrahi's family and the Justice for Megrahi campaign group, which includes relatives of British victims of the bombing, to review the conviction.

It is believed to be an unprecedented move - the first time in UK legal history that relatives of murdered victims have united with the relatives of a convicted deceased in such a way.

But the SCCRC previously said that despite repeated requests, members of Megrahi's family have failed to provide appropriate evidence supporting their involvement in the application and it concluded that the application was being actively supported only by the members of the victims' families.

Previous court decisions have meant that only the executor of a dead person's estate or their next of kin could proceed with such a posthumous application. [RB: Previous decisions have confirmed that close relatives of the deceased convict have a legitimate interest. The decisions do not stipulate that only such persons have a legitimate interest.]

The SCCRC, therefore, wants to determine if a member of the victims' families - such as Dr Jim Swire, who lost his daughter Flora in the bombing - might be classed as a ''person with a legitimate interest to pursue an appeal'' in the event that it decides to refer the case back to the High Court for a third appeal.

After hearing brief submissions on the way forward today, Lady Dorrian ruled: "I shall continue this for a hearing on all issues, including any preliminary matters, to a date hereafter to be fixed."

Dr Swire and Aamer Anwar, solicitor for the Megrahi family and relatives of the deceased victims, were among those at court.

In paperwork lodged with the court, they are calling for the SCCRC's petition for guidance to be dismissed, claiming it is "incompetent" in law.

Speaking after the hearing, Mr Anwar said: "Relatives of the Lockerbie victims instructing my firm maintain that they have a legitimate interest in pursuing an appeal and they will continue to seek the truth.

"But as proceedings are live, it would be inappropriate to comment further."

[The BBC News website’s report on the proceedings, which is clearly based on the Press Association’s, can be read here.]

SCCRC Megrahi petition: today's procedural hearing

A procedural hearing before Lady Dorrian on the petition to the High Court of Justiciary by the Scottish Criminal Cases Review Commission (seeking guidance on whether relatives of Lockerbie victims would have a legitimate interest to pursue an appeal against the conviction of Abdelbaset Megrahi) took place this morning. The background can be found here.

The court today ordered that a full hearing be held on a date to be fixed once the diaries of all the judges and counsel involved have been consulted. It is anticipated that the hearing will be before three very senior judges.

The hearing will cover both the merits, ie whether relatives of murder victims have a legitimate interest to conduct an appeal against the conviction of the alleged culprit and the prior question of whether this is a matter that has been competently raised by the SCCRC’s petition, the argument being that since the issue of who is entitled to conduct the appeal on behalf of a deceased convict arises only if the SCCRC actually refers the conviction back to the High Court, it is only at that point that a decision falls to be made. In other words, the question of “legitimate interest” to conduct an appeal is not one that is, or should be, in law of any concern to the SCCRC in its task of deciding whether there might have been a miscarriage of justice.

Lockerbie evidence destroyed, claims Dalyell

[This is the headline over an article published on the website of the Kirkintilloch Herald on this date in 2002. The following are excerpts:]

The government was accused last night of conspiring to destroy critical evidence from the wreckage of the doomed PanAm flight 103 before the Lockerbie trial.

Tam Dalyell, the Labour MP for Linlithgow and Father of the House of Commons, used parliamentary privilege to claim that a decision to subvert vital clues to the identity of the bombers was taken in London.

He said ministers must answer claims that notebooks belonging to police officers who scoured the crash site in Dumfriesshire after the disaster which claimed 270 lives in 1988 had been destroyed.

Mr Dalyell, who has long had an interest in Lockerbie and believes that Abdelbaset Ali Momed al-Megrahi, now serving life for the mass murder, is innocent, told MPs yesterday during an Easter adjournment debate that he feared there had been a cover-up.

His statement was the first time an MP has challenged the government over the handling of Scotland’s biggest ever murder investigation and trial. (...)

The MP said: "This Easter, an innocent man, innocent of the monstrous crime he was found guilty of committing, languishes in Barlinnie prison in Glasgow.

"His name is Abdelbaset al-Megrahi. Before parliament rises, the House ought to get an undertaking that the British Government, yes the British Government, and not a highly controversial devolved Crown Office in Edinburgh, will address certain questions."

He said that not one of the 129 members of the Scottish parliament had been prepared to take a "sustained, in-depth view" of the Lockerbie case.

Mr Dalyell went on: "Our country’s relations with the Arab world have not been devolved to a Scottish parliament." Mr Dalyell said a former police constable, Mary Boylan, had been asked to give a statement to the procurator fiscal regarding her activities at Lockerbie.

As the request had come almost 11 years after the event, the retired WPC phoned Livingston Police Station to ask for her notebook only to be told it had gone missing.

"Who gave the instruction for the destruction of the notebooks? After all, this was the biggest murder trial unresolved in Scottish legal history.

"The answer to this question is more likely to be found not in Edinburgh but in London," said Mr Dalyell. (...)

Megrahi, a Libyan, lost his appeal against conviction for the bombing of flight 103 and is serving a life sentence in Barlinnie jail.

Speaking after making his comments in the Commons, Mr Dalyell said: "What I am asking the government to comment on is the suggestion that something highly irregular has taken place, apparently with consent.

"I find it absolutely incredible that for reasons of routine or storage space that the notebooks belonging to police officers investigating the biggest murder case in Scottish history should be destroyed. I think it is extraordinary."

Mr Dalyell insisted his remarks were not an attack on the competency of MSPs and suggested the real sources of any alleged conspiracy to cover up the perpetrators of the bombing were in London and the United States.

"This is a serious request and I expect answers," he added.

Megrahi appeal an "abstract undertaking not related to the search for truth"

[On this date in 2002, United Nations observer Professor Hans Köchler published his official report on the appeal proceedings at Camp Zeist that had ended on 14 March 2002. It is utterly damning -- but, of course, had not the slightest effect. The full text can (and should) be read here. What follows is just one paragraph:]

The appeal judges chose a kind of “evasive” strategy by not scrutinizing the argumentation of the trial court in regard to its plausibility and logical consistency, thus not questioning at all the arbitrariness of the evaluation of evidence by the trial judges, and not paying adequate attention to new evidence presented in the course of the appeal – an attitude of effective denial of responsibility that made the entire process a highly formal, artificial and abstract undertaking not related to the search for truth (an essential requirement of justice) and rendered the appeal proceedings virtually meaningless. What else could be the meaning of an appeal process if not a comprehensive review of a trial court’s decision in regard to its duty to find the truth in order to make a decision on guilt or innocence “beyond a reasonable doubt”?

SCCRC 2007 Megrahi report enters public domain

[With a fresh application lodged, it is worth recalling that it was on this date in 2012 that the Sunday Herald published the Scottish Criminal Cases Review Commission’s 2007 Statement of Reasons for finding that the conviction of Abdelbaset Megrahi might have amounted to a miscarriage of justice. Excerpts from an accompanying article by Lucy Adams were published on this blog. The Sunday Herald summarised the SCCRC report as follows:]

The SCCRC report criticises the former Lord Advocate who led the landmark prosecution. Colin Boyd QC, now Lord Boyd, was head of the team which has been accused of failing to disclose crucial information to Megrahi's defence team.

In its 800-page report, the SCCRC criticises Lord Boyd for his handling of CIA cables about a key witness.

The cables refer to Abdul Majid Giaka, an alleged double agent who was a Crown witness. Giaka identified Megrahi as a member of Libyan intelligence, but his subsequent evidence was rejected following revelations in the US intelligence agency's much-redacted cables that he had demanded and received reward money.

Lord Boyd originally told the trial there was no need for disclosure of the cables. However, the SCCRC said it was "difficult to understand" his assurances from August 22, 2000 that there was "nothing" in the documents relating to Lockerbie or the bombing which could "in any way impinge" on Giaka's credibility.

Lord Boyd rejected the commission's claim. He said: "I reject the suggestion that I or anyone else in the prosecution team failed to disclose material evidence to the defence. All of the relevant CIA cables were disclosed subject to some exceptions, principally to ensure that the lives of named individuals were not put at risk. They were disclosed as a result of a request from the court."

The SCCRC report refers to a number of occasions when it was not granted full access to security documents from the CIA. It was not allowed to disclose certain documents about the case – including one relating to timers found in Senegal which were similar to those thought to have caused the tragedy, and claims by former CIA staff.

The appendices contain a number of references to other CIA cables which have never been fully scrutinised.

The UK Security Services complied with all requests to share information with the SCCRC but said a number of documents could not be disclosed because of national security.

The six different grounds on which the SCCRC said Megrahi could have been a victim of a miscarriage of justice are:

Unreasonable verdict. Due to uncertainty over the date on which Megrahi was supposed to have bought clothes in Malta which were found among the plane debris.

Undisclosed evidence concerning the Gauci identification.

Undisclosed evidence concerning the date of the clothes purchase.

Undisclosed evidence concerning Gauci's interests in financial rewards.

Undisclosed secret intelligence documents –the documents' contents remain unknown.

New evidence concerning the date of clothes purchase.

The report refers to several documents which were not revealed to Megrahi's defence team.

Three of the undisclosed documents related to payments of around $3 million (£1.9m) made by the US Justice Department to Paul and Tony Gauci – key witnesses in the Crown's case.

Tony Gauci claimed Megrahi resembled the man who bought clothes in his Malta shop which were later found to be in the suitcase that contained the bomb which killed 270 people over Lockerbie in December 1988. His identification of Megrahi was critical to the prosecution case.

However, the defence did not know he had discussed and shown an interest in reward money before identifying Megrahi. If they had known, they could have challenged the credibility of the prosecution case. In its report, the SCCRC says: "Such a challenge may well have been justified, and in the commission's view was capable of affecting the course of the evidence and the eventual outcome of the trial."

The commission also found Tony Gauci had a magazine with a photograph of Megrahi stating he was the Lockerbie bomber three days before Gauci identified Megrahi at an identification parade in Holland. We now know that Gauci had it for several months prior to the parade.

SCCRC Megrahi petition in High Court on Friday

A reminder that a hearing on the petition to the High Court of Justiciary by the Scottish Criminal Cases Review Commission (seeking guidance on whether relatives of Lockerbie victims would have a legitimate interest to pursue an appeal against the conviction of Abdelbaset Megrahi) is due to take place at the High Court in Edinburgh on Friday, 27 March at 10.00. The background to this hearing is outlined in the following blogposts:

SCCRC petitions court for advice on whether victims' relatives have legitimate interest

Applicants' lawyer's response to SCCRC announcement

Today's High Court hearing on SCCRC Megrahi application

End this disgraceful appeal on behalf of Lockerbie bomber, say US bereaved