The prisoner transfer débâcle

[What follows is excerpted from a report published in The Guardian on this date in 2007:]

Scotland's justice secretary today labelled as "ludicrous" Westminster's claim that a prisoner exchange agreement with Libya did not cover the Lockerbie bomber.

Kenny MacAskill poured scorn on Downing Street's insistence that a memorandum of understanding signed last week during a trip by Tony Blair to Libya did not apply to Abdelbaset Ali Mohmed al-Megrahi.

Alex Salmond, Scotland's first minister, has protested to Tony Blair over the agreement, which he suggested could lead to the Lockerbie bomber being transferred from Scotland to his homeland.

The SNP leader made an emergency statement in the Holyrood parliament complaining that "at no stage" had he been made aware of a British-Libyan agreement on extradition and prisoner release before it was signed.

The agreement has sparked the first major row between the government and the minority SNP administration in Holyrood.

Mr MacAskill told BBC Radio's Good Morning Scotland that Westminster's handling of the affair was "at minimum, discourteous to the first minister and the Scottish parliament".

Mr MacAskill continued: "There's no mention of al-Megrahi [in the memorandum] but we have many people in our prisons ... but we have only one Libyan national in our prisons.

"So when we're talking about the transfer of Libyan prisoners they are not secreted in Barlinnie, Saughton, Perth or anywhere else.

"We have only one Libyan national in custody and when we talk about the transfer of prisoners, frankly it is ludicrous to suggest that we are talking in a context other than this major atrocity that was perpetrated on Scottish soil and which was dealt with by a Scottish court and with a sentence provided by Scottish judges." (...)

No 10 denied Megrahi's case was covered by the document, saying: "There is a legal process currently under way in Scotland reviewing this case which is not expected to conclude until later this summer.

"Given that, it is totally wrong to suggest the we have reached any agreement with the Libyan government in this case.

"The memorandum of understanding agreed with the Libyan government last week does not cover this case."

But Mr MacAskill rejected any suggestion that the agreement would only apply to the transfer of al-Qaida suspects.

He said: "We haven't been given clarification [by Downing Street].

"All we've been told is that a memorandum of understanding has been signed.

"Mr al-Megrahi is not specifically excluded. It refers to the transfer of prisoners so this is London's interpretation of it.

"I doubt it very much if it's the interpretation being placed upon it by the government of Libya."

The row comes in the middle of an examination of Megrahi's case by the Scottish Criminal Cases Review Commission.

The body will decide later this month whether to refer his conviction back to an appeal court.

Mr MacAskill said: "It [the memorandum] is undermining the fabric of the Scottish judicial system that has been independent long before the Scottish parliament was established.

David Mundell, the Tory MP whose Dumfriesshire constituency covers Lockerbie, said he was "appalled" by Mr Blair's handling of the matter.

"Not only has he ridden roughshod over Scotland's parliament and legal system, but his actions threaten to undermine a legal process which took years to put in place and was agreed with the United Nations and international community," he said.

[RB: Here is something previously written by me on this matter:]

It was on [29 May] 2007 that the “deal in the desert” was concluded between Prime Minister Tony Blair and Colonel Gaddafi at a meeting in Sirte. This was embodied in a “memorandum of understanding” that provided, amongst other things, for a prisoner transfer agreement to be drawn up. In later years UK Government ministers, particularly Justice Secretary Jack Straw, sought to argue either (i) that the prisoner transfer element of the deal was not intended to apply to Abdelbaset Megrahi or (ii) that if it was intended to cover him, all parties appreciated that the decision on transfer would be one for the Scottish Government not the UK Government. Here is what I wrote about that on this blog:

According to Jack Straw "the Libyans understood that the discretion in respect of any PTA application rested with the Scottish Executive." This is not so. In meetings that I had with Libyan officials at the highest level shortly after the "deal in the desert" it was abundantly clear that the Libyans believed that the UK Government could order the transfer of Mr Megrahi and that they were prepared to do so. When I told them that the relevant powers rested with the Scottish -- not the UK -- Government, they simply did not believe me. When they eventually realised that I had been correct, their anger and disgust with the UK Government was palpable. As I have said elsewhere:

"The memorandum of understanding regarding prisoner transfer that Tony Blair entered into in the course of the "deal in the desert" in May 2007, and which paved the way for the formal prisoner transfer agreement, was intended by both sides to lead to the rapid return of Mr Megrahi to his homeland. This was the clear understanding of Libyan officials involved in the negotiations and to whom I have spoken.

"It was only after the memorandum of understanding was concluded that [it belatedly sunk in] that the decision on repatriation of this particular prisoner was a matter not for Westminster and Whitehall but for the devolved Scottish Government in Edinburgh, and that government had just come into the hands of the Scottish National Party and so could no longer be expected supinely to follow the UK Labour Government's wishes. That was when the understanding between the UK Government and the Libyan Government started to unravel, to the considerable annoyance and distress of the Libyans, who had been led to believe that repatriation under the PTA was only months away.

“Among the Libyan officials with whom I discussed this matter at the time were Abdulati al-Obeidi, Moussa Koussa and Abdel Rahman Shalgam.”

UK Government prevarication over prisoner transfer

[What follows is excerpted from a report published on the BBC News website on this date in 2007:]

The UK Government has published details of a deal struck with Libya on prisoner exchange, which it insists does not cover the Lockerbie bomber's case.

Scotland's First Minister Alex Salmond had voiced concern at Holyrood that Abdelbaset Ali Mohmed al-Megrahi could be transferred back to a jail in Libya.

A spokesman for Prime Minister Tony Blair said no deal had been signed over the future of al-Megrahi. (...)

The memorandum of understanding with Libya was signed last week by Mr Blair during a trip to the country. It was created on 29 May.

It states that the two sides will shortly "commence negotiations" on prisoner transfer, extradition and mutual assistance in criminal law, with a final deal signed within 12 months.

It will be based on a "model agreement" that, according to the document, has already been hammered out.

Mr Salmond had demanded clarification from the UK Government about al-Megrahi's case and made an emergency statement at Holyrood on Thursday.

He said that "at no stage" was the Scottish government made aware of the memorandum, despite the deal being struck on 29 May.

Addressing MSPs, he said: "I have today written to the prime minister expressing my concern that it was felt appropriate for the UK government to sign such a memorandum on matters clearly devolved to Scotland, without any opportunity for this government and indeed this parliament to contribute."

The first minister reminded politicians that al-Megrahi's case was being reviewed by the Scottish Criminal Cases Review Commission, which could send his case back to appeal judges in Edinburgh. (...)

Scotland's top law officer, the Lord Advocate Eilish Angiolini, supported the decision to write to Mr Blair, Mr Salmond said.

He added that while the Scottish Executive supported the UK Government's desire for better relations with Libya, the lack of consultation with Holyrood over the memorandum was "clearly unacceptable".

"This government is determined that decisions on any individual case will continue to be made following the due process of Scots law," the first minister said.

A Downing Street statement said: "There is a legal process currently under way in Scotland reviewing this case which is not expected to conclude until later this summer.

"Given that, it is totally wrong to suggest the we have reached any agreement with the Libyan Government in this case.

"The memorandum of understanding agreed with the Libyan Government last week does not cover this case."

A spokesman for the prime minister said a deal covering Libyan prisoner exchange was reached between Mr Blair and the Libyan leader Colonel Gaddafi.

When asked if after the legal review al-Megrahi could be returned to serve his sentence in Libya, the spokesman would not be drawn.

Opposition politicians in Scotland condemned the lack of consultation with the Scottish government.

Labour leader Jack McConnell said: "As former first minister I would have expected and demanded no less than prior consultation on such a memorandum.

"Scottish ministers, as far as I understand the letter of the law, have an absolute veto over prison transfers. I want to know if this memorandum contradicts that in any way." (...)

Mr Salmond told him he became aware of the memorandum on Friday, discussed it at the Scottish Cabinet meeting on Tuesday and then consulted the lord advocate on Wednesday.

Scottish Tory leader Annabel Goldie said: "Tony Blair has quite simply ridden roughshod over devolution and treated with contempt Scotland's distinct and independent legal system."

Liberal Democrat leader Sir Menzies Campbell said: "The government's ineptitude in handling this matter has given Mr Salmond precisely what he wanted.

"Westminster and the Labour government have given the impression of disdain for the Scottish authorities.

"The issue is not large in itself but it has played right in Mr Salmond's hands."

Former Labour MP Tam Dalyell, who has believed throughout in al-Megrahi's innocence, said: "The prime minister may think he can draw a line under all this.

"Surprisingly I am sympathetic to Mr Salmond. The only way that Megrahi can prove his innocence is through the Scottish legal system."

Dr Jim Swire, whose daughter Flora was killed in the bombing and who speaks for other British victims, said Scotland had been insulted by the British-Libyan agreement.

Referring to the document, he said: "Incredibly it seems that we are being asked to believe that this concerns other Libyan nationals, but not Megrahi.

"No mention of any discussion was given to us, the Lockerbie relatives.

"Mr Salmond should indeed remain indignant: Scotland has been insulted."

Malta could have done more to reject Lockerbie claims

What follows is an item originally posted on this blog on this date in 2009.

Malta could have done more to reject Lockerbie claims - UN monitor

[This is the headline over an article by Caroline Muscat in today's edition of The Sunday Times, Malta. It reads as follows:]

The man convicted of the Lockerbie bombing is not guilty as charged and there is no convincing argument for Malta's involvement in the terrorist act, according to the United Nations' appointed monitor of the trial in the Netherlands.

Hans Koechler, who was handpicked by the then UN Secretary-General Kofi Annan to monitor proceedings, told The Sunday Times: "I never really understood why the government of Malta did so little to reject these allegations and to defend the integrity of the country's civil aviation system."

Twenty years after the bombing, the government has gone no further than saying that it is monitoring proceedings of the second appeal. Air Malta did not comment.

Malta was implicated in the terrorist act because the prosecution had argued that Abdel Basset Al-Megrahi and Al-Amin Khalifa Fahima had placed the bomb on an Air Malta aircraft before it was transferred at Frankfurt airport on board the doomed Pan Am flight 103A.

The flight went to London Heathrow and was bound for New York's JFK airport before exploding over Lockerbie in Scotland an hour into the journey on December 21, 1988. All 259 people on board died as well as 11 locals on the ground.

The trial at Camp Zeist in the Netherlands had led the Scottish judges to conclude in 2001 that Mr Al-Megrahi was guilty. He was jailed for life while the other defendant was released.

In his report after the verdict, Dr Koechler had concluded that a miscarriage of justice may have occurred. Several years on, he stands by his conclusions: "The court did not come up with any convincing argument that Mr Al-Megrahi is the one who bought the clothes at the shop in Malta and that the 'bomb suitcase' was loaded at Luqa Airport."

Dr Koechler expressed doubt that Mr Al-Megrahi's ongoing appeal, which started on April 28, could be fair and impartial because of the "outright interference of the British government trying to withhold certain sensitive evidence from the defence".

He said political expediency had guided the original verdict, saying it reflected the political considerations related to the foreign policy interests of the involved states at that time.

One of Malta's leading lawyers, who had formed part of the legal team in the defence of the two Libyan suspects, also believes Mr Al-Megrahi is innocent.

Emmanuel Mallia told The Sunday Times: "I personally know the accused and have always firmly believed in his innocence."

Mr Al-Megrahi's appeal was ordered by the Scottish Criminal Cases Review Commission in 2007, after a four-year investigation came to the conclusion that a "miscarriage of justice" may have occurred.

Dr Mallia would not enter into the merits of the case because it is still sub judice. But he said his personal view was that the verdict was flawed.

"Having examined the judgment of the court at Camp Zeist and being aware of the salient evidence produced in the case by the prosecution, I feel that the evidence could never have amounted to guilt of the accusation according to law," Dr Mallia said.

He said the prosecution lacked reliable evidence that could prove guilt beyond reasonable doubt: "Although there were a lot of issues which could give rise to suspicion, anything argued on the basis of suspicion may lead to conjecture but not proof. Even if considering circumstantial evidence, we know that such evidence can mislead and, in order to rely upon it, it has to lead to one direction."

Some argue that at the early investigation stage Malta was perhaps too compliant.

"The government gave access to the Scottish and American investigators to interview people and take any action deemed necessary. Some have argued that things may have been done differently with the Malta police having more direct control of the investigation".

A former Scottish judge regarded as the architect of the Lockerbie trial, Robert Black, also told The Sunday Times last week that there was never any evidence that the bomb left from Malta.

On his blog this week, Prof Black contested arguments made by the prosecution at the Court of Criminal Appeal in recent days that Mr Al-Megrahi's trip to Malta with a false passport the day the bomb was planted, and his departure the day after, was a link to the commission of the offence.

"As regards the coded - not false - passport, it is of relevance only if the bomb actually started from Malta, which is a finding the defence have strongly challenged in the appeal," Prof Black said.

The hearing continues despite rumours that the 57-year-old former Libyan intelligence officer may choose to drop his appeal and go home because of a recent prisoner transfer agreement between the UK and Libya.

Mr Al-Megrahi is suffering from prostate cancer and can choose to die at home. But dropping his appeal will leave him a condemned man and mean that Malta will remain implicated in one of the worst terrorist acts in aviation history.

According to Dr Koechler, it is "absolutely essential" that the appeal goes ahead: "The Scottish authorities can reconcile the imperatives of the rule of law and of humanity and grant the appellant compassionate release while the appeal goes on... In a situation where there are serious doubts whether he is guilty as charged, and where the public is confronted with an increasing number of shocking revelations about the mishandling of the case by the judiciary, tampering with evidence, and so on, it is appropriate to make such a step."

Dr Koechler believes the British Parliament should mandate an independent public investigation into the Lockerbie case.

"The international public, including the people of Malta, deserve to know the truth - the full and uncensored truth - about the chain of events that led to the explosion of the American jetliner over Lockerbie."

Libyan Government requests transfer of Megrahi

[On this date in 2009 the Libyan Government submitted an application to the Scottish Government for Abdelbaset Megrahi to be transferred to Libya to serve the remainder of his sentence. The relevant post on this blog reads as follows:]

The Libyan authorities have applied for the transfer of the man convicted of the Lockerbie bombing, the Scottish government said today.

The move, which could see Abdelbaset Ali Mohmed al Megrahi sent home to Libya to serve out his sentence, follows last week's ratification of a prisoner transfer agreement between the British and Libyan governments.

A Scottish government spokesman said: "The application will be considered by officials who will provide information and advice to Scottish ministers for decision on this matter.

"Under the terms of the agreement this process may take 90 days although it could be longer if further information is required in relation to the application, or for another reason."

[From The Herald's website. The BBC News website's report can be read here. The report on The Scotsman's website can be accessed here. The following are excerpts:]

'[Megrahi's] second appeal against conviction began at the Appeal Court in Edinburgh last week, but this must be dropped if his transfer to a Libyan jail is to take place.

'Dr Jim Swire, whose daughter Flora was on board the Pan Am flight 103, welcomed the development.

'He said: "I am not opposed to this simply because I don't believe the man is guilty as charged and I don't think Megrahi should be in prison."

'He said it was only "right" Megrahi, who is dying from cancer, should be allowed home.

'But Dr Swire added: "He has to renounce his appeal before he can go home. Just because the authorities have applied doesn't mean it is going to happen immediately."

'The application to the Scottish Government was made late yesterday, officials said.

'Under terms of Britain's agreement with Libya, a decision on transferring a prisoner cannot be made if there are any outstanding legal proceedings.

'But the fact that legal proceedings are still outstanding does not prevent an application being lodged.

'The prisoner transfer deal was ratified last Wednesday – the day after Megrahi's second appeal began in Edinburgh.

'For a prisoner like Megrahi, who has prostate cancer, the requirement that there can be no legal proceedings outstanding poses an agonising choice.

'He can either drop his appeal – and with it his bid to clear his name – and seek a return to Libya. Or he can persist with an appeal – and possibly die before it is completed.

'Labour's Scottish justice spokesman Richard Baker said: "It is absolutely right that it is Scottish ministers that will be responsible for any decision to transfer Mr Megrahi.

'"The Scottish Justice Minister has responsibility for Scottish prisoners and so it follows that Kenny MacAskill should decide on the issue."

'Barrie Berkley, who lost his son Alistair, said he hoped the appeal would continue.

'Mr Berkley, of Hexham, Northumberland, said: "I would rather the appeal be completed first and I hope the courts would facilitate it going through without any further delay.

'"We want the appeal to go through because it's the main means of us getting further information about how our family members died or why they died.

"We really want to know whether the Libyans were behind this and Megrahi was behind it.

'"Or of course if he was found not guilty that would mean the inquiry would have to reopen and the various agencies of the US and UK would need to find who was behind it if it wasn't Megrahi.

'"Our main motive is to find out whether Megrahi did do it or not."

'He added: "If he is found guilty then the Government has to decide where he serves the remainder of his term. It shouldn't be up to him or the Libyan authorities."'

[RB: The relevant legal provisions governing prisoner transfer are set out here. A prisoner may be transferred only if the judgment against him is final and no other criminal proceedings are pending in the transferring state. This means that Abdelbaset Megrahi's current appeal would have to be abandoned before transfer takes place. But it would seem on the face of it that there is no reason why the appeal should not continue while the Scottish Government is considering the application. Transfer cannot be effected without the consent of the prisoner concerned since it is he alone who can instruct the appeal to be abandoned to allow transfer to take place.]

Lockerbie accused's health deteriorates as appeal hearing opens

[This is the headline over a report published on the website of The Guardian on this date in 2009. It reads as follows:]

Doubt over evidence against Libyan convicted for bombing that killed 270 people during 1988 flight over Lockerbie

The health of the Libyan convicted of planting the Lockerbie bomb, Abdelbaset Ali Mohmed al-Megrahi, has worsened and he is experiencing increasing levels of pain, his lawyers said today.

The opening day of Megrahi's appeal against conviction for killing 270 people in the 1988 bombing heard that he is to undergo a new course of treatment for his terminal prostate cancer, which has already spread to his spine and other parts of his body.

His lawyers claim he was wrongly convicted in 2001 on insufficient evidence, and is innocent of the bombing.

He was jailed for life for playing a prominent role in the atrocity when a suitcase bomb killed 259 passengers and crew on Pan Am flight 103 and 11 people in the Scottish town of Lockerbie on 20 December 1988.

Today's appeal hearing in Edinburgh came nearly two years after the case was referred by the Scottish Criminal Cases Review Commission. The commission raised substantial doubts about the reliability of the key witness against Megrahi, a Maltese shopkeeper called Tony Gauci, and said Megrahi may have been wrongly convicted.

Much of Megrahi's trial had focused on forensic evidence linking blast-damaged clothing to the suitcase that contained the bomb.

Megrahi was said to have visited Gauci's shop on 7 December 1988, but the commission said new evidence indicated the clothing was bought at an earlier date. There had been no evidence at the trial that Megrahi was in Malta on that date.

Last November judges rejected an application for Megrahi, who is dying of cancer, to be released on bail on compassionate grounds before the appeal after medical experts said he could live for some years.

Megrahi said afterwards: "I wish to reiterate that I had nothing to do with the Lockerbie bombing and that the fight for justice will continue regardless of whether I am alive to witness my name being cleared."

Many relatives of Lockerbie victims support his protestations of innocence.

Megrahi's first appeal was rejected in March 2002. Since he was jailed in Scotland, a prisoner transfer agreement has been reached between the UK and Libya. The agreement was formally put before parliament on 27 January but the justice ministry said last night that the treaty could not enter into force until the instruments of ratification had been exchanged.

"Ratification will happen shortly. In the case of prisoners in Scottish jails, including Megrahi, and respecting the devolution settlement, any decision to transfer under this agreement would be for Scottish ministers and Scottish ministers alone," it said.

Not a snowball's chance in hell the prosecution case will survive

What follows is an item originally posted on this blog on this date in 2009:

New witness casts doubt on Lockerbie bomb conviction

[The following are excerpts from an article under this headline in today's edition of The Independent on Sunday. The full article can be read here.]

A new witness is expected this week to undermine thoroughly the case against the only person to be convicted of the Lockerbie bombing. New testimony will call into question evidence linking the Libyan Abdel Basset Ali al-Megrahi to the bomb that blew up Pan Am Flight 103 in 1988, his lawyers claim. (...)

[Note by RB: In the first session of the appeal, which starts on Tuesday and runs until 22 May, there will be no new witnesses, just legal argument. Any new witnesses, if the Appeal Court allows them to be heard -- and the rules about fresh evidence in appeals are very restrictive -- will only feature in later sessions.]

Appeal hearings are due to begin on Tuesday, and Megrahi's lawyers insisted this weekend they will go ahead as planned, despite speculation that he may be returned to Libya under the terms of a controversial prisoner transfer agreement, due to be ratified tomorrow.

"We are turning up next week," said Tony Kelly, his solicitor. "We are seeking that the court upholds his appeal, admit that there has been a miscarriage of justice, and grant him his liberty. Whatever remedies come after that is for after the appeal."

Appeal documents seen by The Independent on Sunday reveal that testimony from a new witness is expected to undermine the evidence of a key prosecution witness, Tony Gauci, a Maltese shopkeeper. His testimony was vital in connecting Megrahi to the bombing at the trial in 2001.

Mr Gauci identified Megrahi as the person who bought the tweed suit, baby sleepsuit and umbrella found among the remnants of the suitcase that contained the bomb on board.

The new witness, not named in the documents, will provide an account the defence claims is "startling in its consistency with Mr Gauci's account of the purchase, but adds considerable doubt to the date the key items were purchased and identification of Megrahi as the purchaser".

All of this may be academic, as 56-year-old Megrahi, who was diagnosed with advanced prostate cancer in October 2008, has been reported as having less than a year to live and the appeal could take two years.

Increasingly, however, it seems likely that the Lockerbie suspect will spend his last days in Libya. This month, officials wrote to the families of victims of the bombing explaining the prisoner transfer programme, interpreted as a tacit agreement that Megrahi may be returned to Libya. Under the terms of the deal, if Megrahi participates in the transfer scheme, he will forfeit his right to appeal.

"If he goes back to Libya, it will be a bitter pill to swallow, as an appeal would reveal the fallacies in the prosecution case," said Dr Jim Swire, whose daughter Flora was killed on Flight 103. Dr Swire is a member of UK Families Flight 103, which wants a public inquiry into the crash. "I've lost faith in the Scottish criminal justice system, but if the appeal is heard, there is not a snowball's chance in hell that the prosecution case will survive."