The Arab League and Lockerbie

[What follows is the text of a Reuters news agency report published on this date in 1998:]

Arab League foreign ministers are expected to throw their diplomatic weight behind Libya this week in their first meeting since Britain and the United States agreed to hold the Lockerbie trial in a neutral country.

“The Lockerbie issue is on the front burner,” said an Arab official of the two days of talks starting on Wednesday.

“It is a priority based on the degree of attention which will be given not only in the official work of the council but on the sidelines as well.”

The Arab official said the Arab League was expected to call for clarification through UN Secretary-General Kofi Annan.

“The Libyans are worried Holland might be used as a conveyor belt,” he said. “There is already an environment of mistrust and the language of take-it-or-leave-it is not helpful.

“So the work of the League will focus on supporting Libya's legitimate rights to seek more clarification and guarantees. We believe this will strengthen the Libyan position,” he said.

In their last talks in March, the foreign ministers of the 22-member League renewed support for Libya's call for an end to the UN sanctions imposed on Libya after it refused to give up for trial the suspects in the bombing which killed 270 people.

But Libyan leader Muammar Gaddafi apparently wants more than lip service this time.

On Sunday, the Libyan news agency said Libya had abolished its ministerial portfolio charged with promoting Arab unity and emphasised that Libya belonged to the African continent.

The last task for Libya's Unity Affairs Minister Jomaa al-Fezzani will be to attend this week's Arab League meeting. Diplomats saw the move as timed to pressure the Arab League into backing up words with deeds, as African states have done.

The Organisation of African Unity (OAU) in May called for an end to the sanctions and this month seven African leaders broke the embargo by flying into Libya without UN permission.

No Arab country has followed suit. Asked to comment, the Arab official said: “I would understand sometimes it's frustrating, but we are not competing with the OAU and Arabs cannot violate U.N. resolutions collectively. It should be decided country by country,” he said. “We have given strong collective diplomatic support to Libya.”

[And, exactly ten years later, from Wikipedia:]

On 14 September 2008, the Arab League Ministerial Council passed a resolution calling for the 'political hostage' Megrahi to be released from prison in Scotland. The resolution demanded that the Scottish government should hand to Megrahi's lawyers the documents which the SCCRC had identified, adding that Britain's refusal to do so represented a 'miscarriage of justice'. The Arab League also endorsed Libya's right to compensation for the damage done to its economy by UN sanctions which were in force from 1991 until 1999*.

*Arab League Ministerial Council Renews Call for Al-Megrahi Release

Tainting evidence -- the FBI crime laboratory

[On this date in 1995 the FBI crime laboratory was the subject of a highly critical television programme broadcast on the ABC network. It followed disclosures by one of the laboratory’s scientists, Dr Frederic Whitehurst, about the methods adopted by some of his colleagues, including Tom Thurman. The scandal later became the subject of a book, Tainting Evidence, by John Kelly and Phillip Wearne. The relevance of this to the Lockerbie case is outlined in the following excerpt from Gareth Peirce’s article The Framing of al-Megrahi in the London Review of Books:]

The key features needed to prosecute al-Megrahi successfully were the scientific identification of the circuit-board fragment, which would in turn establish its origin, and the identification of the purchaser of the clothes in Malta. The timers, the indictment stated, were made by a firm in Switzerland; their circuit board matched the fragment retrieved from Lockerbie, and they sold the timers exclusively to Libya. Everything, essentially, hinged on those links.

Who found the fragment? And who understood its relevance? Thomas Hayes of the Royal Armament Research and Development Establishment (RARDE) claimed the find (with his colleague Alan Feraday) and Thomas Thurman of the FBI claimed the analytical victory. All were swiftly hailed (or hailed themselves) as heroes. Thurman appeared on television on 15 November 1991, the day after indictments were issued against the two Libyans, boasting that he had identified the piece of circuit board as part of a timing device that might have been sold to Libyan Airlines staff. ‘I made the identification and I knew at that point what it meant. And because, if you will, I am an investigator as well as a forensic examiner, I knew where that would go. At that point we had no conclusive proof of the type of timing mechanism that was used in the bombing of 103. When that identification was made of the timer I knew that we had it.’ This was the claim – the hard evidence – that linked Libyans to the crime. If the claim was false the bereaved Lockerbie families have been deceived for 20 years.

On 13 September 1995 the FBI’s forensic department was the subject of a programme broadcast in the US by ABC. At its centre was a memorandum from the former head of explosive science at the FBI, Dr Frederic Whitehurst. It was a devastating indictment of a former colleague. The colleague was Thomas Thurman and the accusations related to his investigation of a terrorist attack in which a judge was killed by pipe bombs. Two years later, as a result of a review by the US inspector general, Michael Bromwich, into a large number of criminal investigations, Thomas Thurman was barred from FBI labs and from being called as an expert witness. Bromwich had discovered that he had no formal scientific qualifications and that, according to a former colleague, he had been ‘circumventing procedures and protocols, testifying to areas of expertise that he had no qualifications in . . . therefore fabricating evidence’.

Thurman had made the Libyan connection, and its plausibility relied on the accuracy of his statement that the fragment of circuit board proved that it would have been possible for the unaccompanied bag to fly from Malta without the seemingly inevitable mid-air explosion. And thus it was that a witness from Switzerland, Edwin Bollier, the manufacturer of the MEBO circuit board, was called on to provide evidence that such boards had been sold exclusively to Libya.

The disappearing police notebooks

[On this date in 1999, Scotland on Sunday broke the news that the notebooks of police officers involved in the Lockerbie investigation had been destroyed. I cannot find the original report on The Scotsman website, but news agency reports picking up the story the same day can be read here and one from BBC News the following day can be read here. A report from Sky News reads as follows:]

A claim that dozens of police notebooks relating to the Lockerbie air tragedy have been destroyed could have severe implications for a trial next year. The pads were apparently destroyed five years after the 1988 crash that took 270 lives. The Scotland on Sunday newspaper believed the loss of the notebooks could affect court proceedings scheduled to take place in Holland early next year. The newspaper said police officers would now have to give evidence years later without being able to refer back to detailed notes taken at the time.

It claimed some of the books covered the recovery of fragments of wreckage. It is not known whether police destroyed them mistakenly or whether the Crown Office, responsible for prosecutions in Scotland, did not order them to be kept. The newspaper quoted sources, said to be close to the defence, as saying: "Police officers have told us they could not give detailed statements because they did not have their notebooks.

"When we asked why, the answer was the notebooks had been taken off them and were later destroyed. In a case like this the order should have been given that they were kept. For some reason the order was either not given or was ignored. We are aware of dozens of notebooks which have been destroyed." Yet prosecution officials and police are not commenting on the revelations.

A Crown Office spokesman said: "We cannot make any comment as it would be inappropriate to comment about what may be evidential matters in the Lockerbie trial." Dumfries and Galloway police, that covers the Lockerbie area, also declined to comment. Dozens of police notebooks relating to the Lockerbie air disaster have been destroyed, it was claimed today.

The notebooks were destroyed five years after the 1988 crash which claimed 270 lives, for which two Libyans are alleged to be responsible. Prosecution officials and police declined to comment on the report in the Scotland on Sunday newspaper, which said the lack of the notebooks could have implications at the trial due to take place in The Netherlands early next year.

“Police officers will have made written statements based on their notebooks, but these probably will not be admissible,” Robert Black, professor of law at Edinburgh University and an expert on the Lockerbie case, told Scotland on Sunday. “The lack of the notebooks will be useful to the defence. I imagine police officers will have to say they do not remember exactly where they found x, y or z,” he added.

Justice for Megrahi petition at forthcoming Justice Committee session

[The next consideration of Justice for Megrahi’s petition (PE1370) by the Justice Committee of the Scottish Parliament will take place on 22 September 2015. What follows is the text of JFM’s submission for that meeting:]

On the 28th April 2015 the Convener of the Justice Committee wrote to the Lord Advocate seeking his view on JFM’s suggestion that an independent prosecutor be appointed to consider the forthcoming Police Scotland ‘Operation Sandwood’ report. In his response of 8th May 2015 the Lord Advocate stated that it was his intention to appoint an, ‘independent Crown Counsel who has not been involved in the Lockerbie case to deal with this matter if and when the need arises.’ http://www.scottish.parliament.uk/S4_JusticeCommittee/General%20Documents/ 20150508_LA_to_CG.pdf

In our letter to the committee dated 29th May JFM, objecting to this decision, we observed: ‘If the Lord Advocate is proposing a Crown Office advocate depute as an independent prosecutor to consider any Police Scotland report stemming from the investigation of JFM’s 9 allegations of criminality, known as Operation Sandwood, such a proposal falls well short of JFM’s concept of an independent, unbiased and constitutionally sound approach.’ http://www.scottish.parliament.uk/S4_JusticeCommittee/General%20Documents/ 20150526_JFM_response_to_LA.pdf

Our letter lays out precisely why JFM objects in the strongest possible terms to the Lord Advocate’s proposal contained in his letter to the convener dated 8th May 2015 and we would ask the committee to fully consider our detailed objections at its 15th September meeting.

In particular JFM wishes to emphasise the following passage from page 4 of its 26th May letter: ‘We strongly believe that in order to acquire a fair, unprejudiced and truly independent reading of the final police report a special prosecutor must be appointed by a process independent of the Lord Advocate and the Crown Office, and must be seen to exercise his/ her decision-making and prosecutorial functions without reference to the Lord Advocate and the Crown Office.

‘Since the Lord Advocate’s position and independence as head of the prosecution system in Scotland is enshrined in the Scotland Act, such a mechanism must be put in place by the Lord Advocate himself, failing which, the Scottish Government should seek from the UK Government a section 30 Order in Council to enable the Scottish Government to do so.’

We believe that these facts offer the Justice Committee a way forward.

Over past years a number of serious questions have been raised about the office of the Lord Advocate, the Crown Office and the Scottish Justice System in general. The collapse of the Andy Coulson trial, the hasty decision to take no proceedings in relation to the Bin Lorry accident are but two examples.

The astonishing public outbursts in relation to our 9 allegations first from the Crown Office and then from the Lord Advocate to which we have already referred before they even knew what the allegations were, are two more cases in point.

This latest attempt by the Lord Advocate not to surrender his control, despite irrefutable evidence that he should, only serves to provide further focus to these concerns and throw serious doubt on the Crown’s internal decision making processes.

We feel it is important to emphasise that while we have highlighted the actions of the current Lord Advocate and Crown Office this only serves to highlight a much more central concern about the general constitutional and political position of the Office of the Lord Advocate and the Crown Office.

We believe that the only authority providing any form of political oversight of the Scottish Justice System is the Justice Committee and as such we believe that your continuing monitoring of the action of the prosecution authorities in relation to our petition is critical and very much in the public interest.

We would respectfully urge the Committee to allow Petition PE1370 to remain on the table.

[A submission from Police Scotland, along with the minute of a meeting between JFM and the police investigating team, can be read here.]

Key Lockerbie 'evidence' not used

[This is the headline over a report published on the BBC News website on this date in 2001. It reads as follows:]

New evidence has emerged which casts doubt over the Lockerbie bombing conviction, a national newspaper reported on Tuesday.

The Mirror claims that the device which blew up Pan Am flight 103 over the small Scottish town may not have been loaded at Frankfurt, an assertion made by the prosecution team.

Its theory stems from an interview with Heathrow Airport security guard Ray Manly who said he told police that Pan Am's baggage area was broken into on 21 December, 1988, some 17 hours before the plane set off for New York.

Mr Manly was interviewed by anti-terrorist officers a month after the tragedy, but his evidence was "lost" and never used in court.

During the trial in the Netherlands it was claimed by the prosecution that accused Libyan Abdelbaset Al Megrahi placed the bomb on a flight from Malta to Frankfurt, where it was then "interlined" on to a flight to Heathrow before being loaded on to Flight 103.

In February this year, Al Megrahi was convicted of mass murder and jailed for a minimum of 20 years.

Fellow accused, Libyan Al Amin Khalifa Fhimah, was acquitted of the crime.

Al Megrahi's defence team said during the trial at Camp Zeist that it was more likely the bomb was introduced at Heathrow.

Mr Manly told police he found that a padlock near the Pan Am desk at Heathrow's Terminal Three appeared to have been severed with bolt cutters.

This would have cleared the way for a bomb to be planted among Pan Am luggage which had already passed through security checks, the newspaper said.

Mr Manly told The Mirror: "I can't believe the statement was lost.

"No one at the trial knew about the break-in."

Dr Jim Swire, whose 23-year-old daughter Flora died in the crash, said the new claims added to his continued calls for a full public inquiry.

He said: "These kind of aspects not only show failures at Heathrow, they bring questions that serious mistakes have been made during the (police) inquiry.

"As soon as the appeal process is over we want a full inquiry into why Heathrow didn't take full steps to protect our loved ones."

Dr Swire said the fact the plane had been loaded from empty at the London airport also showed the need for the UK Government to set up an inquiry to determine exactly what happened.

"What we are after is the whole truth," added Dr Swire.

The High Court of Judiciary in Edinburgh last month granted Al Megrahi, 49, permission to appeal against his conviction.

A preliminary hearing is scheduled to take place in Camp Zeist next month.

[At his first appeal, Megrahi was allowed to lead evidence about the Heathrow break-in. I have described elsewhere how the appeal court dealt with the issue:]

The only ground upon which a criminal appeal can succeed in Scotland is that there has been a miscarriage of justice. In the Note of Appeal lodged on behalf of Megrahi there were set out in 21 paragraphs (many of them subdivided) the grounds upon which, individually or in combination, it was contended that a miscarriage had occurred. One of those grounds related to the existence and significance of evidence which was not heard during the original proceedings. This evidence related to a breach of security at Heathrow Terminal 3 (potentially giving access to the baggage build-up area) the night before Pan Am 103 departed from that terminal on its fatal flight. The Appeal Court allowed the new evidence to be led before it, but ultimately concluded that it could not be regarded as possessing such importance as to have been likely to have had a material bearing on the trial court’s determination of the critical issue of whether the suitcase containing the bomb was launched on its progress from Luqa Airport in Malta (an essential plank in the prosecution case) or from Heathrow. This ground of appeal was accordingly rejected.

Amendment to limit High Court's power to reject SCCRC references

[What follows is from a series of tweets posted today by James Chalmers, Regius Professor of Law in the University of Glasgow, about the Scottish Parliament Justice Committee’s consideration on 8 September 2015 of the Criminal Justice (Scotland) Bill:]

Justice Committee considered amendments to the Criminal Justice (Scotland) Bill on Tuesday - official report here: http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=10071&mode=pdf

Christine Grahame defied her own party line to push an amendment limiting the High Court's power to reject SCCRC references.

That amendment was carried over the votes of the other SNP members (and Conservative abstention).

Christine Grahame was absolutely right to push that point, although presumably the government will try to undo the amendment later.

[The debate on this issue, which is important in the context of any further Megrahi appeal, is to be found in columns 36 to 41 of the Official Report. The background is explained in this blogpost.]

World Court Lockerbie case dropped

[What follows is excerpted from a document to be found on The Hague Justice Portal:]

On 10 September 2003, after more than ten years of proceedings before the International Court of Justice (ICJ), the disputes between Libya and both the United Kingdom and the United States concerning the extradition of two Libyan citizens were removed from the Court’s List following the Parties’ withdrawal from the proceedings. (...)

By two letters of 9 September 2003, the Governments of Libya and the United Kingdom on the one hand, and of Libya and the United States of America on the other, notified the Court that they had "agreed to discontinue with prejudice the proceedings".

Following those notifications, on 10 September 2003 the President of the Court, Judge Shi, made an Order in each case placing on record the discontinuance of the proceedings with prejudice, by agreement of the Parties, and directing the removal of the case from the Court’s List.

In the meantime, Libya had agreed that the two accused, Abdelbaset Ali Mohmed Al Megrahi and Ali Amin Khalifa Fhimah, be tried by five Scottish Judges sitting in a neutral Court, in the Netherlands. Abdelbaset Ali Mohmed Al Megrahi was found guilty on 31 January 2001. He was convicted of 270 counts of murder for his part in the bombing of Pan Am Flight 103 and sentenced to life imprisonment. His co-accused, Al Amin Khalifa Fhimah was found not guilty and released.

[Here is what I have previously written about this chapter in the Lockerbie affair:]

[This] is what I wrote in an article headed “The Lockerbie Disaster” published in (1999) 3 Edinburgh Law Review 85-95:

On 27 November 1991 the Governments of the United Kingdom and the United States each issued a statement calling upon the Libyan Government to hand over the two accused to either the Scottish or the American authorities for trial.  Requests for their extradition were transmitted to the Government of Libya by diplomatic channels.  No extradition treaties are in force between Libya on the one hand and the United Kingdom and United States on the other.

Libyan internal law, in common with the laws of many countries in the world, does not permit the extradition of its own nationals for trial overseas.  The Government of Libya accordingly contended that the affair should be resolved through the application of the provisions of the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, to which all three Governments are signatories.  Under article 7 of that Convention a state in whose territory persons accused of terrorist offences against aircraft are resident has a choice aut dedere aut judicare, either to hand over the accused for trial in the courts of the state bringing the accusation or to take the steps necessary to have the accused brought trial in its own domestic courts.  In purported compliance with the second of these options, the Libyan authorities arrested the two accused and appointed a Supreme Court judge as examining magistrate to consider the evidence and prepare the case against them.  Not entirely surprisingly, perhaps, the UK and US Governments have refused to make available to the examining magistrate the evidence that they claim to have amassed against the accused who, to this day, remain under house arrest.

The United Nations Security Council first became involved in the Lockerbie affair  on 21 January 1992 when it passed Resolution 731 strongly deploring the Government of Libya's lack of co-operation in the matter and urging it to respond to the British and American requests contained in their statements of 27 November 1991.  This was followed by Security Council Resolution 748 (31 March 1992) requiring Libya to comply with the requests within a stipulated period of time, failing which a list of sanctions specified in the Resolution would be imposed.  Compliance was not forthcoming and the sanctions duly came into  effect.  On 11 November 1993 the Security Council, by Resolution 883, further extended the range and application of the sanctions.  The imposition of sanctions under the last two Resolutions was justified by the Security Council by reference to Chapter VII of the Charter of the United Nations on the basis that Libya's failure to extradite the accused constituted a threat to peace.

On 3 March 1992 (after the passing of Security Council Resolution 731, but before Resolutions 748 and 883), Libya presented applications to the International Court of Justice in The Hague for declarations that she was entitled under Article 7 of the 1971 Montreal Convention to put the accused on trial in Libya and that the United Kingdom and the United States were in breach of their obligations under that Convention in insisting upon trial in the UK or the USA.  The Governments of the United Kingdom and United States sought to have these applications dismissed without a hearing on the merits on the grounds inter alia that (1) the ICJ had no jurisdiction to consider them and (2) the Security Council Resolutions of 31 March 1992 and 11 November 1993, imposing upon Libya an international obligation contended by the UK and the USA to be superior to that embodied in Article 7 of the Montreal Convention, had rendered the applications pointless.  On 27 February 1998 the judges of the ICJ by substantial majorities [RB: 13 to 3] (and with the American and British judges dissenting) rejected the submissions of the UK and the USA, thereby clearing the way for decisions at some time in the future on the merits of Libya's applications.

RB: This judgement was followed within six months by the UK and US volte face whereby they agreed to a neutral venue trial. Here is what I wrote in the article mentioned above:

For four years and seven months the Government of the United Kingdom (and that of the United States) consistently maintained that the "neutral venue" scheme proposed by the writer and accepted by the Libyan Government and defence lawyers in January 1994 was impossible, impracticable and inherently undesirable.  For a flavour of the strength and vehemence of the Government's opposition, the interested reader is referred to "The Lockerbie Trial"  1998 Scots Law Times (News) 9 by Lord Hardie, a response by the Lord Advocate to the present writer's "The Lockerbie Proposal" 1997 Scots Law Times (News) 304.

However, on 24 August 1998 the Governments of the United Kingdom and United States announced that they had reversed their stance on the matter.  In a letter of that date to the Secretary-General of the United Nations, Kofi Annan, the Acting Permanent Representatives of the UK and the USA stated:

".... in the interest of resolving this situation in a way which will allow justice to be done, our Governments are prepared, as an exceptional measure, to arrange for the two accused to be tried before a Scottish court sitting in the Netherlands.  After close consultation with the Government of the Kingdom of the Netherlands, we are pleased to confirm that the Government of the Kingdom of the Netherlands has agreed to facilitate arrangements for such a court.  It would be a Scottish court and would follow normal Scots law and procedure in every respect except for the replacement of the jury by a panel of three Scottish High Court judges.  The Scottish rules of evidence and procedure, and all the guarantees of fair trial provided by the law of Scotland, would apply."

RB: Once the trial and appeal at Camp Zeist were concluded, the World Court case brought by Libya was quietly dropped, to the enormous relief of the permanent members of the UN Security Council, who were in fear and trembling that the court was going to recognise what would, in effect, have been a form of judicial review of the legality of the acts of the Security Council. And that would never do. Good heavens, it might have judicially prevented the invasion of Iraq!

The farcical imprisonment of Abdelbaset al-Megrahi

[What follows is the text of a letter from Dr John Cameron published in today’s edition of The Scotsman:]

Italy’s highest court of appeal has issued its written explanation for dismissing out of hand the conviction of Amanda Knox and Raffaele Sollecito in the Meredith Kercher murder trial.

In a scathing critique of the prosecution’s hopelessly flawed case it said there was a “total lack of any biological evidence” that they were in the room or had touched the body.

The trial had shamed the Italian justice system and yet, in the end, it proved self-correcting unlike our own system in the equally farcical imprisonment of Abdelbaset al-Megrahi.