Invited Consultants –
Dr Hans Koechler, President of the International Progress Organisation (IPO), Vienna.
Prof Robert Black QC, Professor Emeritus of Scots Law, University of Edinburgh.
Convener –
Robbie the Pict, Lockerbie Justice Group.
The participants were invited to reply to four questions put by the Convener in the hope of guidance in the pursuit of proper justice for all in relation to the destruction of PanAm Flight 103 over Lockerbie in December 1988.
The questions asked were answered as follows:
QUESTION 1. Did the Foreign and Commonwealth Office arrangements for a trial at Kamp Zeist deliver an independent and impartial tribunal?
ANSWER 1.
No. We draw attention to five principal defects:
a) It would have enhanced the appearance of independence and impartiality if the Judicial Bench had been composed of Judges from countries other than the United Kingdom with a Scottish Judge in the Chair. This is principally because the case involves the interests of more than one state and the appointment of all the Judges from only one of the concerned states does not meet the required standards of independence and impartiality. The Consultants present today would both have preferred a tribunal wherein a Scottish Judge chaired a panel of Judges from other countries but this was rejected by the relevant UK authorities. It should be kept in mind that there was an ongoing political dispute between the UK and Libya at this time which had led to the severing of diplomatic relations.
b) The presence of American advisers in the well of the Court, later identified to the IPO as FBI agents, having frequent discourse and consultation with the Crown prosecution team contributed to the appearance of outside influence on the conduct of the prosecution. These persons were not identified at any point and their names did not appear on the official brochure which, amongst other things, named the prosecution and defence teams. Concerns were raised in the course of the trial that these persons appeared to be guiding witness responses by facial gestures.
c) We are of the view that if, in an adversarial system, the defence does not properly play its antagonistic role, the interplay of forces is set off-balance. This demands both equality of arms procedurally, and a determined and dedicated wielding of these arms. We draw attention to the new burden placed upon all Judges under Section 6(1) of the Human Rights Act 1998 (HRA) to ensure that there is indeed an equality of arms in their Court.
d) Whilst we accept that circumstantial evidence alone can be sufficient to convict, we are not satisfied that the Court, in its written judgment, adequately explained its reasons for accepting incriminating inferences from that evidence and rejecting or dismissing evidence that supported non-incriminating inferences.
e) We have good reason to suspect that rewards and benefits of a direct or indirect nature have been paid to prosecution witnesses.
QUESTION 2. What should happen now?
ANSWER 2
a) In the event that the Public Interest Immunity (PII) certificate is upheld by the Court and evidence is withheld from the Defence, we consider that this would render the conduct of a fair appeal impossible. We believe that, in actuality and in the public perception, such a denial compromises the principles of a fair hearing, which depends significantly upon equality of arms. In this context we would like to draw attention to the position adopted by the Foreign and Commonwealth Office on this matter, as contained in a letter written to the IPO on 27 August 2008. It reads:
“Under the Human Rights Act 1998 the Court has a duty to act in compliance with Convention rights in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial. The UK Government has made clear its commitment to work closely with the Court to ensure that Mr Megrahi receives a fair trial and that sensitive material is handled appropriately.”
b) In the event that the present appeal proceeds, we recommend the following:
i) That the pending decision by the Appeal Court, regarding the scope of the appeal, be delivered with urgency. Preparation by both the appellant and the Crown is impeded whilst the precise parameters of the appeal remain unsettled. It is clearly desirable that any decision defining those parameters should give reasons for the rejection of any grounds submitted by the appellant.
ii) The phrase ‘the trial and any appeal’ in the Agreement between the Governments of the UK and the Netherlands concerning a Scottish Trial in the Netherlands permits the view that this further appeal should also take place in an international framework; however we consider that unlikely. We urge that the relevant Scottish and UK authorities take such steps as are necessary to secure the presence of international observers at any further appeal hearing.
c) Irrespective of the outcome of the current appeal, there should be a re-investigation of the incident by the Scottish authorities. A further Fatal Accident Inquiry would not be inappropriate given the amount of material that has become available since the original FAI took place. When the restricted scope of an FAI is considered perhaps it would be more appropriate to have a wider-ranging public inquiry.
d) Allegations have been made in the Press and elsewhere of incidences of tampering with evidence material to the case. The Lord Advocate should instruct that these allegations be investigated.
QUESTION 3. If Scotland was charged with managing such an international event in the future, what model is recommended?
ANSWER 3.
a) Although this is a hypothetical question it offers the opportunity to advise the Scottish public of developments since the Lockerbie incident. The UK is a state party to the Rome Statute of the International Criminal Court (ICC). This would mean that such matters could be prosecuted by the International Criminal Court in The Hague.
b) Where, for whatever reason, the ICC cannot be resorted to, the possibility exists of inviting non-Scottish Judges to participate in a Scottish trial. The following are illustrative precedents for such an approach:
i) The Special Court for Sierra Leone, established by agreement between the UN and the Government of Sierra Leone.
ii) The Special Chambers in the Courts of Cambodia.
QUESTION 4. What changes should be considered for the better administration of justice in Scotland?
ANSWER 4.
1. Whilst Scotland retains an adversarial system as opposed to an inquisitorial system, the existence of a real equality of arms is crucial to the delivery of justice. Following the coming into force of the Human Rights Act 1998 (HRA) the responsibility for ensuring a fair trial, which includes equality of arms, lies with the Court itself. Although this judicial obligation is already enshrined in the law, it could usefully be spelled out in an amendment to the Criminal Procedure (Scotland) Act 1995.
2. It is inappropriate that the Chief Legal Adviser to the Government is also head of all criminal prosecutions. Whilst the Lord Advocate and Solicitor General continue as public prosecutors the principle of separation of powers seems compromised. The potential for a conflict of interest always exists. Resolution of these circumstances would entail an amendment of the provisions contained within the Scotland Act 1998.
3. The Criminal Procedure (Scotland) Act 1995 should be amended to oblige the Crown to disclose all prosecution witness statements. The current system, whereby the Crown’s disclosure obligation is met by simply supplying a list of possible Crown witnesses, encourages the fruitless expenditure of defence time, money and effort.
4. The absence of a particular and dedicated Criminal Appeal Court, especially when, unlike in civil matters, there is no further appeal available to a higher Court, renders the appeal system vulnerable to serious criticism.
16 September 2008
Showing posts sorted by date for query "Robbie the Pict". Sort by relevance Show all posts
Showing posts sorted by date for query "Robbie the Pict". Sort by relevance Show all posts
Tuesday 16 September 2008
Sunday 6 July 2008
Scottish newspapers accused of shirking investigative duties
Today's issue of the Sunday Herald contains an article about a letter written by Professor Hans Köchler complaining about the supine attitude of the Scottish press over the Lockerbie miscarriage of justice. The article reads in part:
'When readers are asked what they want more of in newspapers the answer is often great, jaw-dropping scoops. Yet investigative reporting - the discipline behind many such stories - is increasingly seen by many newspaper executives as too expensive to bother with.
'This is certainly the view of Professor Hans Kochler [sic], the former UN monitor of the Lockerbie trial, who has attacked the Scottish media for its coverage of Abdelbaset Ali Mohmed al-Megrahi's continuing appeals against his conviction.
'Kochler believes Scottish journalists are becoming unwilling to question the establishment version of events and work under editors and executives who refuse to finance proper reporting. He says he has a list of publications and journalists he believes have failed to do their jobs properly, which he may seek to publish at a later date.
'Says Kochler: "As far as Lockerbie is concerned I can't understand why more isn't being done by the European country that was most concerned with it. There is a lot at stake: the rule of law, security, the role of international terrorism. Why isn't somebody trying to find out why the authorities are now trying to withhold evidence and delaying everything?"
'In an earlier letter to veteran campaigner Robbie the Pict nee [sic] Brian Robertson, in which Kochler raised the issue of a potential media blackout, he simply wrote: "Where are Scotland's investigative journalists?"
'Kochler claims that editors reduced coverage under establishment pressure. Some journalists closely related to the story argue that the real reason why Lockerbie is off the agenda is because people are tired of it, but Kochler claims it is a symptom of a wider problem that cuts across the profession.'
The comments from members of the public which follow the article are well worth reading and are extremely well-informed.
'When readers are asked what they want more of in newspapers the answer is often great, jaw-dropping scoops. Yet investigative reporting - the discipline behind many such stories - is increasingly seen by many newspaper executives as too expensive to bother with.
'This is certainly the view of Professor Hans Kochler [sic], the former UN monitor of the Lockerbie trial, who has attacked the Scottish media for its coverage of Abdelbaset Ali Mohmed al-Megrahi's continuing appeals against his conviction.
'Kochler believes Scottish journalists are becoming unwilling to question the establishment version of events and work under editors and executives who refuse to finance proper reporting. He says he has a list of publications and journalists he believes have failed to do their jobs properly, which he may seek to publish at a later date.
'Says Kochler: "As far as Lockerbie is concerned I can't understand why more isn't being done by the European country that was most concerned with it. There is a lot at stake: the rule of law, security, the role of international terrorism. Why isn't somebody trying to find out why the authorities are now trying to withhold evidence and delaying everything?"
'In an earlier letter to veteran campaigner Robbie the Pict nee [sic] Brian Robertson, in which Kochler raised the issue of a potential media blackout, he simply wrote: "Where are Scotland's investigative journalists?"
'Kochler claims that editors reduced coverage under establishment pressure. Some journalists closely related to the story argue that the real reason why Lockerbie is off the agenda is because people are tired of it, but Kochler claims it is a symptom of a wider problem that cuts across the profession.'
The comments from members of the public which follow the article are well worth reading and are extremely well-informed.
Thursday 3 July 2008
Lockerbie Appeal - To Crown it All
I am grateful to Robbie the Pict for drawing my attention to the following article in Private Eye of 27 June 2008.
'Unless the Scottish judiciary resists blatant meddling from Westminster, the forthcoming appeal of Ali Mohmed al-Megrahi, jailed for life for the Lockerbie bombing, is in danger of descending into fiasco.
'Not only is the Foreign Office trying to keep secret intelligence documents that are crucial to the Libyan's defence by claiming public interest immunity (PII) on them (see Eye 1201), but the Crown Office is now seeking to limit Megrahi's appeal too.
'Crown lawyers want the appeal restricted to the six grounds cited last year by the Scottish Criminal Cases Review Commission (SCCRC). Because one of those grounds relates to documents which the UK government wants kept secret, the United Nations special observer, Dr Hans Kochler, has already said the appeal looks more like an "intelligence operation" than a fair hearing.
'To try now to limit the scope of the appeal will underscore Kochler's belief and confirm the view of many, including some of the victims' families, that the government does not want the truth to emerge about how and why Pan Am flight 103 was blasted from the sky nearly 20 years ago, killing 270 people.
'The secret documents relate indirectly to the timing device alleged to have detonated the bomb and said to provide the crucial link to both Libya and Megrahi. Recent leaks to two Scottish newspapers suggest the documents are German in origin and cast doubt on the Libyan connection. Scotland on Sunday quoted a source who had seen the material saying it held "considerable detail" and "appeared to confirm that the method of attack was typical of a Palestinian terror cell in Germany".
'A Syrian-backed Palestinian terrorist cell operating out of Frankfurt was of course broken by German police two months before Lockerbie. Altitude sensitive bombs packed in cassette recorders were found in their flat. It was calculated that they would blow an aircraft up around 40 minutes after take off- spookily similar to the fate of Pan Am 103 after it left Heathrow.
'The Palestinians were the main suspects for the Pan Am bombing for well over a year - until the investigation suddenly switched to Libya and Megrahi with the purported discovery of a tiny fragment of circuit board said to come from a Swiss-made MST 13 timer.
'How the fragment was found and later identified by UK scientists and US investigators has always been highly contentious. Thus any evidence about the timer is central to Megrahi's defence. As well as seeking disclosure of the secret material, it is understood his lawyers want to introduce the results of independent forensic tests casting farther doubt on the evidence given about the timer - unless the Crown Office succeeds in limiting the scope of the appeal.'
'Unless the Scottish judiciary resists blatant meddling from Westminster, the forthcoming appeal of Ali Mohmed al-Megrahi, jailed for life for the Lockerbie bombing, is in danger of descending into fiasco.
'Not only is the Foreign Office trying to keep secret intelligence documents that are crucial to the Libyan's defence by claiming public interest immunity (PII) on them (see Eye 1201), but the Crown Office is now seeking to limit Megrahi's appeal too.
'Crown lawyers want the appeal restricted to the six grounds cited last year by the Scottish Criminal Cases Review Commission (SCCRC). Because one of those grounds relates to documents which the UK government wants kept secret, the United Nations special observer, Dr Hans Kochler, has already said the appeal looks more like an "intelligence operation" than a fair hearing.
'To try now to limit the scope of the appeal will underscore Kochler's belief and confirm the view of many, including some of the victims' families, that the government does not want the truth to emerge about how and why Pan Am flight 103 was blasted from the sky nearly 20 years ago, killing 270 people.
'The secret documents relate indirectly to the timing device alleged to have detonated the bomb and said to provide the crucial link to both Libya and Megrahi. Recent leaks to two Scottish newspapers suggest the documents are German in origin and cast doubt on the Libyan connection. Scotland on Sunday quoted a source who had seen the material saying it held "considerable detail" and "appeared to confirm that the method of attack was typical of a Palestinian terror cell in Germany".
'A Syrian-backed Palestinian terrorist cell operating out of Frankfurt was of course broken by German police two months before Lockerbie. Altitude sensitive bombs packed in cassette recorders were found in their flat. It was calculated that they would blow an aircraft up around 40 minutes after take off- spookily similar to the fate of Pan Am 103 after it left Heathrow.
'The Palestinians were the main suspects for the Pan Am bombing for well over a year - until the investigation suddenly switched to Libya and Megrahi with the purported discovery of a tiny fragment of circuit board said to come from a Swiss-made MST 13 timer.
'How the fragment was found and later identified by UK scientists and US investigators has always been highly contentious. Thus any evidence about the timer is central to Megrahi's defence. As well as seeking disclosure of the secret material, it is understood his lawyers want to introduce the results of independent forensic tests casting farther doubt on the evidence given about the timer - unless the Crown Office succeeds in limiting the scope of the appeal.'
Sunday 15 June 2008
Lockerbie bomber hearing 'flawed'
The Sunday Times has picked up the story from The Firm which was mentioned on this blog on 13 June. The report, by Mark Macaskill, reads as follows:
'The UN’s observer in the trial that convicted a Libyan of the atrocity criticises the process of his appeal
The UN observer at the Lockerbie trial, Hans Köchler, has said that the Libyan convicted of the bombing will not get a fair hearing in Scotland.
Köchler, who advises the European Commission on democracy and human rights, has condemned government interference in the appeal of Abdelbaset Ali Mohmed al-Megrahi and said the hearing should be held in a neutral country.
His intervention follows an attempt by the British government to block the release of secret papers that could help clear the former Libyan intelligence agent convicted of the 1988 bombing, which claimed 270 lives.
Köchler said Megrahi’s case was handled “more like an intelligence operation than a genuine undertaking of criminal justice” and criticised MSPs for failing to hold inquiries into the downing of Pan Am 103 and its judicial aftermath. “It is almost trivial to say that a fair trial requires the availability of evidence to the prosecution and defence. Only in a totalitarian system would the executive power interfere in court proceedings and order the withholding of evidence.”
The Advocate General, on behalf of British ministers, had objected to disclosure of the documents to Megrahi’s legal team, lodging a public interest immunity plea.
Last month senior judges ordered that the papers should be released to the Court of Criminal Appeal in Edinburgh, where a panel of three judges will decide in camera whether they should be disclosed.
The documents, which are believed to hold information about the electronic timer that detonated the bomb, were not disclosed to the defence during al-Megrahi’s trial at Camp Zeist in the Netherlands. Megrahi lost an appeal in 2002, but the Scottish Criminal Cases Review Commission concluded that he might have been the victim of a miscarriage of justice and referred his case back to the court last year. One of the grounds for referral is believed to be the prosecution’s failure to disclose the secret document to Megrahi’s lawyers.
Köchler said the decision to hear the appeal in Scotland breached a concordat between the UK, the US and the Netherlands. “The fact that the new appeal proceedings take place in Scotland is not in conformity with the original intergovernmental agreement on the Lockerbie trial.” The proceedings totally lacked “transparency”, he said.
Last week, Robert Black, the Edinburgh law professor who helped to arrange Megrahi’s original trial in the Netherlands said the intergovernmental agreement no longer applied. It “existed for the original trial and the appeal. This is now the second appeal.” The agreement was spent, he said.
“Scotland made a mess of the trial and the appeal, and to an outside observer, that might lend justification to Köchler’s view. But I believe that this time it will be done properly and Megrahi will be released.”
Last year, Köchler said Scotland had the reputation of a “banana republic” because of its handling of the case.'
Scotland on Sunday runs a story along the same lines. It contains the following quote from doughty Lockerbie campaigner, Tam Dalyell:
"Hans Köchler is a good man and he is absolutely right with his criticisms. The behaviour of the Crown in this case has been disgusting and a disgrace to Scotland. I personally feel very responsible because I was one of those, along with others, who helped persuade the Libyans to hand over one of their nationals for trial."
Scotland on Sunday states that Professor Köchler's views were expressed in a letter written to The Firm. The letter was in fact written to Robbie the Pict who, with Köchler's permission, passed it to the magazine.
'The UN’s observer in the trial that convicted a Libyan of the atrocity criticises the process of his appeal
The UN observer at the Lockerbie trial, Hans Köchler, has said that the Libyan convicted of the bombing will not get a fair hearing in Scotland.
Köchler, who advises the European Commission on democracy and human rights, has condemned government interference in the appeal of Abdelbaset Ali Mohmed al-Megrahi and said the hearing should be held in a neutral country.
His intervention follows an attempt by the British government to block the release of secret papers that could help clear the former Libyan intelligence agent convicted of the 1988 bombing, which claimed 270 lives.
Köchler said Megrahi’s case was handled “more like an intelligence operation than a genuine undertaking of criminal justice” and criticised MSPs for failing to hold inquiries into the downing of Pan Am 103 and its judicial aftermath. “It is almost trivial to say that a fair trial requires the availability of evidence to the prosecution and defence. Only in a totalitarian system would the executive power interfere in court proceedings and order the withholding of evidence.”
The Advocate General, on behalf of British ministers, had objected to disclosure of the documents to Megrahi’s legal team, lodging a public interest immunity plea.
Last month senior judges ordered that the papers should be released to the Court of Criminal Appeal in Edinburgh, where a panel of three judges will decide in camera whether they should be disclosed.
The documents, which are believed to hold information about the electronic timer that detonated the bomb, were not disclosed to the defence during al-Megrahi’s trial at Camp Zeist in the Netherlands. Megrahi lost an appeal in 2002, but the Scottish Criminal Cases Review Commission concluded that he might have been the victim of a miscarriage of justice and referred his case back to the court last year. One of the grounds for referral is believed to be the prosecution’s failure to disclose the secret document to Megrahi’s lawyers.
Köchler said the decision to hear the appeal in Scotland breached a concordat between the UK, the US and the Netherlands. “The fact that the new appeal proceedings take place in Scotland is not in conformity with the original intergovernmental agreement on the Lockerbie trial.” The proceedings totally lacked “transparency”, he said.
Last week, Robert Black, the Edinburgh law professor who helped to arrange Megrahi’s original trial in the Netherlands said the intergovernmental agreement no longer applied. It “existed for the original trial and the appeal. This is now the second appeal.” The agreement was spent, he said.
“Scotland made a mess of the trial and the appeal, and to an outside observer, that might lend justification to Köchler’s view. But I believe that this time it will be done properly and Megrahi will be released.”
Last year, Köchler said Scotland had the reputation of a “banana republic” because of its handling of the case.'
Scotland on Sunday runs a story along the same lines. It contains the following quote from doughty Lockerbie campaigner, Tam Dalyell:
"Hans Köchler is a good man and he is absolutely right with his criticisms. The behaviour of the Crown in this case has been disgusting and a disgrace to Scotland. I personally feel very responsible because I was one of those, along with others, who helped persuade the Libyans to hand over one of their nationals for trial."
Scotland on Sunday states that Professor Köchler's views were expressed in a letter written to The Firm. The letter was in fact written to Robbie the Pict who, with Köchler's permission, passed it to the magazine.
Monday 12 November 2007
Robbie the Pict and Hans Koechler
Here is (1) the text of an e-mail sent to Robbie the Pict by Dr Hans Koechler, the UN-appointed observer at the Lockerbie trial and (2) the text of an e-mail sent today by Robbie to, amongst others, the First Minister and the Minister of Justice. The issue is the preservation of the wreckage from Pan Am 103. Items posted on this blog on 02 and 29 October 2007 are relevant.
(1) From: I.P.O.
To: RtP
Sent: Wednesday, November 07, 2007 3:14 PM
P/RE/20727
Dear Robbie!
I have received your message concerning the remains of the aircraft.
I agree with you that all forensic evidence, including the aircraft remains, has to be stored in a safe place where it can be assured that it will not be tampered with.
From here in
With best regards,
Hans Koechler
(2) Greetings Gentlemen,
With best regards,
Tuesday 2 October 2007
Pan Am 103 and the mysterious sewing-machine needles
Robbie the Pict, a doughty Scottish campaigner against injustice, has a different perspective on the cause of the Lockerbie disaster. See
http://www.firmmagazine.com/members/feature.php?id=324
http://www.firmmagazine.com/members/feature.php?id=324
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