[This is the headline over a report by Lucy Adams in today's edition of The Herald outlining reactions to yesterday's revelations in the newspaper. It reads as follows:]
Revelations in The Herald the UK Government tried to suppress have fuelled calls for a public inquiry into the Lockerbie bombing.
Yesterday, we revealed a document the UK Government has blocked for more than 20 years, which has never been aired in public or shared with the courts, originally came from Jordan and indicates a Palestinian terrorist group was involved in the bombing that killed 270 people – which the UK Government has vehemently denied.
The UK Government went to considerable lengths to prevent details of the document – which casts further doubt on the safety of the conviction of Abdelbaset Ali Mohmed al Megrahi – being published by The Herald.
Dr Jim Swire, whose daughter Flora died in the atrocity, said: "No-one has been braver than The Herald in searching for the truth about Lockerbie. For this news to break now goes to the core of features of this case which have worried me for a long time. One is the professed ignorance of the UK Prime Minister and Scottish First Minister when they say they uphold the verdict of the trial and [will] not hold an inquiry.
"During the second appeal in Edinburgh, when the Advocate General spoke he said a Public Interest Immunity [PII] certificate had been granted by the then Foreign Secretary David Miliband. I knew then the establishment of the countries in which I live were opposing my right to know who really murdered my daughter and all those other people, and to know why their precious lives were not protected."
The document incriminates the Popular Front for the Liberation of Palestine – General Command (PFLP-GC) in the bombing. The PFLP-GC were the original suspects in the investigation into the atrocity. However, by 1991 police and prosecutors were entirely focused on Libya.
The UK Government arranged for the document to be covered by Public Interest Immunity on national security grounds.
Willie Rennie MSP, leader of the Scottish Liberal Democrats, said: "This adds further weight to calls for a Scottish public inquiry into the Lockerbie prosecution. Accusations of suppressing evidence and withholding important documents from those at the heart of the investigation cannot be swept under the carpet. The First Minister should order a Scottish public inquiry to ensure the integrity and fairness of the Scottish justice system is put beyond doubt."
It is thought the document could fatally undermine the case against Megrahi, who died of cancer last month. Tony Kelly, Megrahi's solicitor, said the fact the Appeal Court, defence team and Megrahi were never allowed access to it is a "tragedy".
"The publication of details of the document in yesterday's Herald – previously subject to a PII certificate signed by the Foreign Secretary in the course of the appeal proceedings – was the first inkling I had about the content and source of the document," he said. "What a great pity."
John Ashton, the author of Megrahi: You are my Jury, said yesterday: "Mr Megrahi spent 10 years in prison and went to his grave still bearing the weight of his conviction. If this, and all the other important evidence that we now know of, had been disclosed to his lawyers, he should have walked from court a free man and would have spent the last decade with his family. By resisting a public inquiry into the case, the Scottish Government is fuelling the biggest scandal of the country's post-devolution era."
Patrick Harvie MSP, Scottish Green Party co-convener, said: "The Herald's latest twist adds to the long-held doubts about Mr Megrahi's conviction. In its apparent attempt to prevent The Herald talking about this document, the Foreign Office refers to the UK's international relations being harmed. Surely the real risk is to our reputation for justice. A public inquiry would help address this sorry saga."
A Scottish Government spokesman said: "It is the case that the Crown Office wanted to provide this information to Mr Megrahi's legal team during the second appeal and made this clear to the court, but it could not be done because of the UK Government's Public Interest Immunity certificate.
"The issues being raised in relation to the conviction itself must be a matter for a court of law – Mr Megrahi was convicted in a court of law, his conviction was upheld on appeal, and that is the only appropriate place for his guilt or innocence to be determined. It remains open for relatives of Mr Megrahi or the relatives of the victims of the Lockerbie atrocity to ask the SCCRC (Scottish Criminal Cases Review Commission) to refer the case to the Appeal Court again on a posthumous basis."
Showing posts sorted by relevance for query "public interest immunity" document. Sort by date Show all posts
Showing posts sorted by relevance for query "public interest immunity" document. Sort by date Show all posts
Saturday 2 June 2012
How UK Government hid secret Lockerbie report
[This is the headline over a report by Lucy Adams in yesterday's edition of The Herald. Apologies for tardiness in posting: a family emergency involving a staff member at Gannaga Lodge necessitated a 200 kilometre dirt-road trip to Ceres, from where the blog is now being updated. The report reads as follows:]
It has been hidden, blocked and kept secret by the UK Government for more than 20 years, but The Herald can reveal for the first time the contents of the top-secret Lockerbie document that the UK tried to prevent us from publishing.
The highly classified document, which has never even been aired in public or shared with the courts, originally came from Jordan and indicates that a Palestinian terrorist group was involved in the bombing that killed 270 people – something the UK Government has vehemently denied.
The UK Government has gone to considerable lengths to prevent details of the document – which casts further doubt on the safety of the conviction of Abdelbaset Ali Mohmed al Megrahi – being published by The Herald.
It has threatened legal action to stop publication of the newspaper and asked the paper to sign up to a court-approved gagging order.
Our decision to publish details of the document, which was obtained by the Crown Office but never shown to the defence team, will prove highly embarrassing to the Crown, the Foreign and Commonwealth Office and the Office of the Advocate General, whose lawyers have worked tirelessly to prevent it ever being even discussed in public.
The document incriminates the Popular Front for the Liberation of Palestine – General Command (PFLP-GC) in the Lockerbie bombing.
The PFLP-GC were the original suspects in the investigation into the biggest terrorist atrocity ever to have been committed in mainland Britain. However, by 1991 police and prosecutors were entirely focused on Libya. Since then politicians and the investigating authorities have denied the possibility of their involvement, instead blaming the whole atrocity on Libya.
Repeated, high-level attempts to block the report indicate it is vital to unearthing the truth about the Lockerbie bombing. The UK Government arranged for the document to be covered by Public Interest Immunity on national security grounds. This prevented it from being shared with the defence but does not prevent publication by a newspaper.
A source said: "The document itself is historical and regimes have changed so it is hard to believe it presents any risk at all to national security. It originates from Jordan and incriminates the Palestinian terror group the PFLP-GC. The contents are very important but what makes them so much more significant is the lengths the UK Government and others have gone to in order to prevent anyone from seeing the document.
"This is the most remarkable piece of evidence. It does not rule out the Libyans but it does indicate that others were involved.
"It also shows the lengths the UK Government was prepared to go to in order to ensure that any evidence undermining their case against Libya would never see the light of day."
It is thought the document could fatally undermine the case against Abdelbaset Ali Mohmed al Megrahi. He died of cancer last month without knowing the contents of this report.
The Scottish Criminal Cases Review Commission (SCCRC) team that investigated Megrahi's conviction discovered the existence of the document during their four-year investigation which concluded in 2007. Their 800-page report explains that their investigative team were allowed to access the document in Dumfries police station but they were prohibited from removing the notes they made on it and the document itself.
The commission was only able to access the document after signing up to a special agreement not to divulge the contents and was told by the Crown that "a conclusion was reached that the documents did not require to be disclosed in terms of the Crown's obligations".
The SCCRC then ruled that the contents were sufficiently disturbing for a court to have believed the conviction could have been a miscarriage of justice. The failure to disclose the document was one of the six grounds on which the case was referred back for a fresh appeal in 2007.
To date, only the Crown, UK Government and SCCRC team know the contents of this closely guarded document.
Megrahi's legal team pushed for disclosure of the document once it was revealed by the SCCRC. The Scottish courts were in the process of appointing special advocates and a special judge who would decide in secret whether the contents of the document could be disclosed when Megrahi dropped an appeal in 2009 in order to speed his return to Libya. He was released on compassionate grounds in August 2009 because he was suffering from terminal prostate cancer.
This new evidence and the fact it points to the guilt of non-Libyans will also prove embarrassing for the prosecution who failed to share the document with the trial court and who have subsequently argued that the investigation should focus on Libya alone.
A spokesman for the UK's Foreign and Commonwealth Office said: "The UK Government provided all relevant information on the Lockerbie bombing to the Scottish authorities, who considered it as part of the investigation which led to Megrahi's conviction. Any suggestion of 'hiding' documents is simply incorrect.
"The Government entered into a dialogue with The Herald in line with its long-established practice, supported by successive governments, to seek to prevent publication of any material that could cause significant harm to the UK's international relations and national security. We have consistently made clear that we sought to do this through dialogue rather than legal action".
Chapter 25 of the Scottish Criminal Cases Review Commission's Statement of Reasons refers to material which the Crown had proactively disclosed to the Commission during its review of Megrahi's conviction. The Crown claim they wanted to provide this information to Megrahi's legal team during the second appeal and made this clear to the court, but this could not be done because of the UK Government's Public Interest Immunity Certificate.
A spokesman for the Crown Office said: "The suggestion that the PFLP-GC was responsible for the Lockerbie bombing was fully considered by the trial court following the incrimination of this terrorist group by Megrahi during his trial and does nothing to undermine the Crown's case that Megrahi acted with others in the bombing of flight Pan Am 103.
"All material which met the Crown's disclosure obligations in relation to the PFLP-GC was properly disclosed to the defence before the trial and this was confirmed by the SCCRC's investigation.
"The court concluded that the conception, planning and execution of the plot which led to the bombing was of Libyan origin. The court was, of course, only dealing with evidence, not matters of opinion or conjecture."
[An accompanying editorial in The Herald reads as follows:]
The Herald today publishes the details of a Lockerbie document the UK Government worked to keep secret for more than two decades.
The document not only implicates a different country and terrorist group but indicates the lengths the UK Government would go to in order to keep key information out of the public domain.
It has not explained why the document could not be published or shared with the defence team of Abdelbaset Ali Mohmed al Megrahi, the man convicted of the bombing, other than to use the catch-all cover of national security.
However, we believe that publishing the information was in the public interest.
The document only came to light in 2007 when the Scottish Criminal Cases Review Commission (SCCRC) published its Statement of Reasons for a possible miscarriage of justice and referred the case for a new appeal.
The commission said failure to disclose the document could have constituted such a miscarriage. It was one of the six grounds upon which the case was referred back to court.
However, UK ministers signed a Public Interest Immunity (PII) certificate to prevent disclosure.
Yesterday the Crown Office said that, during the second appeal in 2008/9, it wanted to share the contents of the document with the defence team but was unable to do so because of the PII.
Yet the same Crown Office chose not to disclose this document to the defence a decade previously, before the original trial. Its position was that the document "did not require to be disclosed in terms of the Crown's obligations", even though it was not covered by PII at the time.
The Crown had a duty to disclose relevant information, even if it risked undermining the prosecution case.
The UK Government says the document was not "hidden" as it had been shared with investigating authorities. So why did the Crown choose not to share the information with the defence?
The document is a highly significant piece of new evidence which weakens and perhaps undermines the case against Megrahi as it states that agencies other than the Libyan Government were involved.
It may not be in the UK Government's interests to probe this case more deeply but any grounds for an inquiry should be based on new evidence and the wishes of the relatives of the victims.
The Scottish Government claims it does not have the power to order an inquiry but legal experts have made clear that a narrower inquiry could be ordered by ministers at Holyrood. They have emphasised a desire to be open and accountable in this case.
The relatives of those who died have waited 23 years for answers. It is time for ministers to put the wishes of the relatives first and start answering questions in full.
We are not passing judgment on Megrahi's guilt or otherwise, but the failure to disclose this document and its contents provide compelling reasons for a full and independent public inquiry.
It has been hidden, blocked and kept secret by the UK Government for more than 20 years, but The Herald can reveal for the first time the contents of the top-secret Lockerbie document that the UK tried to prevent us from publishing.
The highly classified document, which has never even been aired in public or shared with the courts, originally came from Jordan and indicates that a Palestinian terrorist group was involved in the bombing that killed 270 people – something the UK Government has vehemently denied.
The UK Government has gone to considerable lengths to prevent details of the document – which casts further doubt on the safety of the conviction of Abdelbaset Ali Mohmed al Megrahi – being published by The Herald.
It has threatened legal action to stop publication of the newspaper and asked the paper to sign up to a court-approved gagging order.
Our decision to publish details of the document, which was obtained by the Crown Office but never shown to the defence team, will prove highly embarrassing to the Crown, the Foreign and Commonwealth Office and the Office of the Advocate General, whose lawyers have worked tirelessly to prevent it ever being even discussed in public.
The document incriminates the Popular Front for the Liberation of Palestine – General Command (PFLP-GC) in the Lockerbie bombing.
The PFLP-GC were the original suspects in the investigation into the biggest terrorist atrocity ever to have been committed in mainland Britain. However, by 1991 police and prosecutors were entirely focused on Libya. Since then politicians and the investigating authorities have denied the possibility of their involvement, instead blaming the whole atrocity on Libya.
Repeated, high-level attempts to block the report indicate it is vital to unearthing the truth about the Lockerbie bombing. The UK Government arranged for the document to be covered by Public Interest Immunity on national security grounds. This prevented it from being shared with the defence but does not prevent publication by a newspaper.
A source said: "The document itself is historical and regimes have changed so it is hard to believe it presents any risk at all to national security. It originates from Jordan and incriminates the Palestinian terror group the PFLP-GC. The contents are very important but what makes them so much more significant is the lengths the UK Government and others have gone to in order to prevent anyone from seeing the document.
"This is the most remarkable piece of evidence. It does not rule out the Libyans but it does indicate that others were involved.
"It also shows the lengths the UK Government was prepared to go to in order to ensure that any evidence undermining their case against Libya would never see the light of day."
It is thought the document could fatally undermine the case against Abdelbaset Ali Mohmed al Megrahi. He died of cancer last month without knowing the contents of this report.
The Scottish Criminal Cases Review Commission (SCCRC) team that investigated Megrahi's conviction discovered the existence of the document during their four-year investigation which concluded in 2007. Their 800-page report explains that their investigative team were allowed to access the document in Dumfries police station but they were prohibited from removing the notes they made on it and the document itself.
The commission was only able to access the document after signing up to a special agreement not to divulge the contents and was told by the Crown that "a conclusion was reached that the documents did not require to be disclosed in terms of the Crown's obligations".
The SCCRC then ruled that the contents were sufficiently disturbing for a court to have believed the conviction could have been a miscarriage of justice. The failure to disclose the document was one of the six grounds on which the case was referred back for a fresh appeal in 2007.
To date, only the Crown, UK Government and SCCRC team know the contents of this closely guarded document.
Megrahi's legal team pushed for disclosure of the document once it was revealed by the SCCRC. The Scottish courts were in the process of appointing special advocates and a special judge who would decide in secret whether the contents of the document could be disclosed when Megrahi dropped an appeal in 2009 in order to speed his return to Libya. He was released on compassionate grounds in August 2009 because he was suffering from terminal prostate cancer.
This new evidence and the fact it points to the guilt of non-Libyans will also prove embarrassing for the prosecution who failed to share the document with the trial court and who have subsequently argued that the investigation should focus on Libya alone.
A spokesman for the UK's Foreign and Commonwealth Office said: "The UK Government provided all relevant information on the Lockerbie bombing to the Scottish authorities, who considered it as part of the investigation which led to Megrahi's conviction. Any suggestion of 'hiding' documents is simply incorrect.
"The Government entered into a dialogue with The Herald in line with its long-established practice, supported by successive governments, to seek to prevent publication of any material that could cause significant harm to the UK's international relations and national security. We have consistently made clear that we sought to do this through dialogue rather than legal action".
Chapter 25 of the Scottish Criminal Cases Review Commission's Statement of Reasons refers to material which the Crown had proactively disclosed to the Commission during its review of Megrahi's conviction. The Crown claim they wanted to provide this information to Megrahi's legal team during the second appeal and made this clear to the court, but this could not be done because of the UK Government's Public Interest Immunity Certificate.
A spokesman for the Crown Office said: "The suggestion that the PFLP-GC was responsible for the Lockerbie bombing was fully considered by the trial court following the incrimination of this terrorist group by Megrahi during his trial and does nothing to undermine the Crown's case that Megrahi acted with others in the bombing of flight Pan Am 103.
"All material which met the Crown's disclosure obligations in relation to the PFLP-GC was properly disclosed to the defence before the trial and this was confirmed by the SCCRC's investigation.
"The court concluded that the conception, planning and execution of the plot which led to the bombing was of Libyan origin. The court was, of course, only dealing with evidence, not matters of opinion or conjecture."
[An accompanying editorial in The Herald reads as follows:]
The Herald today publishes the details of a Lockerbie document the UK Government worked to keep secret for more than two decades.
The document not only implicates a different country and terrorist group but indicates the lengths the UK Government would go to in order to keep key information out of the public domain.
It has not explained why the document could not be published or shared with the defence team of Abdelbaset Ali Mohmed al Megrahi, the man convicted of the bombing, other than to use the catch-all cover of national security.
However, we believe that publishing the information was in the public interest.
The document only came to light in 2007 when the Scottish Criminal Cases Review Commission (SCCRC) published its Statement of Reasons for a possible miscarriage of justice and referred the case for a new appeal.
The commission said failure to disclose the document could have constituted such a miscarriage. It was one of the six grounds upon which the case was referred back to court.
However, UK ministers signed a Public Interest Immunity (PII) certificate to prevent disclosure.
Yesterday the Crown Office said that, during the second appeal in 2008/9, it wanted to share the contents of the document with the defence team but was unable to do so because of the PII.
Yet the same Crown Office chose not to disclose this document to the defence a decade previously, before the original trial. Its position was that the document "did not require to be disclosed in terms of the Crown's obligations", even though it was not covered by PII at the time.
The Crown had a duty to disclose relevant information, even if it risked undermining the prosecution case.
The UK Government says the document was not "hidden" as it had been shared with investigating authorities. So why did the Crown choose not to share the information with the defence?
The document is a highly significant piece of new evidence which weakens and perhaps undermines the case against Megrahi as it states that agencies other than the Libyan Government were involved.
It may not be in the UK Government's interests to probe this case more deeply but any grounds for an inquiry should be based on new evidence and the wishes of the relatives of the victims.
The Scottish Government claims it does not have the power to order an inquiry but legal experts have made clear that a narrower inquiry could be ordered by ministers at Holyrood. They have emphasised a desire to be open and accountable in this case.
The relatives of those who died have waited 23 years for answers. It is time for ministers to put the wishes of the relatives first and start answering questions in full.
We are not passing judgment on Megrahi's guilt or otherwise, but the failure to disclose this document and its contents provide compelling reasons for a full and independent public inquiry.
Friday 27 May 2016
Lockerbie documents security plea
[This is the headline over a report published on the BBC News website on this date in 2008. It reads as follows:]
A plea has been made to Lockerbie bombing appeal judges to hold a hearing to discuss a confidential document behind closed doors.
The Advocate General has suggested a security-vetted advocate could represent Abdelbasset Ali al-Megrahi in place of his usual legal team.
The UK Government claims releasing the document would harm national security.
However, Al Megrahi's lawyers have said it could assist his appeal against his conviction for the 1988 atrocity.
The Advocate General - who represents the UK Government - has lodged a public interest immunity plea to keep the document secret.
A three-day procedural hearing at the Appeal Court in Edinburgh is now meeting to decide how to address the issue.
The court previously heard Foreign Secretary David Miliband had signed the public interest immunity certificate.
Judges were told he believes releasing the secret document would cause "real harm" to the national interest.
Advocate General Lord Davidson QC told the court there should be a public interest immunity hearing, and he suggested judges should have access to the document in advance of that hearing.
He said a special representative, if appointed, would be able to represent Al Megrahi's interests.
The Libyan's defence team have not yet given their views in the hearing but Lord Davidson said it appeared that they contest the use of a special representative in this case.
Al Megrahi was not present at the hearing in Edinburgh.
[RB: This is the document referred to in Kenny MacAskill’s book and in respect of which it has been suggested that Mr MacAskill may have contravened the Official Secrets Act.]
Sunday 21 February 2016
Westminster 'meddling' in Megrahi case
[This is the headline over a report published in The Herald on this date in 2008. It reads as follows:]
The UK Government has been accused of "interference" in the appeal of the man convicted of the Lockerbie bombing.
The charge was made yesterday as it was revealed for the first time that Scotland's top prosecutor would be prepared to release a top secret document which could overturn the case, but that UK ministers are blocking the move.
The Court of Criminal Appeal in Edinburgh was told that Elish Angiolini, the Lord Advocate, would be prepared to disclose the document which was uncovered during the three-year investigation of the Scottish Criminal Cases Review Commission which resulted in the case being referred back to the courts for a new appeal last summer.
The commission concluded the failure during the original trial to disclose this document, which comes from an un-named foreign country and is thought to contain information about the electronic timer used to detonate the bomb, could constitute a miscarriage of justice.
Although the Crown allowed the commission to see the material they have refused to disclose it to the defence.
Abdelbaset Ali Mohmed al Megrahi is currently serving 27 years in Greenock prison for the 1988 bombing which killed 270 people.
The Libyan's defence team say they need to see the document in order for Megrahi to have a fair appeal.
Maggie Scott, QC, leading Megrahi's defence team, said yesterday that according to the response from the Crown Office, "the Lord Advocate has decided that she should disclose this document for the purposes of the appeal".
She argued the lord advocate ultimately has the jurisdiction in deciding whether to disclose a document in a Scottish criminal appeal.
However, Lord Davidson, QC, the Advocate General, who represents the Westminster government in legal matters north of the border, had said no.
Ms Scott said: "No public interest objection has been taken or raised by the lord advocate. In these circumstances, the only reasonable inference is that ... the lord advocate on reflection does not consider there is a well-founded public interest objection to the disclosure of the document sought."
Ms Scott added: "When one understands this position, it becomes obvious ... the advocate general's intervention is preventing that disclosure.
"But for his intervention the document would be disclosed and when one understands that one sees the intervention by the Advocate General is interference by the UK Government in the pursuit of, the conduct of, a criminal prosecution by the lord advocate."
The advocate general is trying to invoke "public interest immunity" to keep the document secret but Ms Scott said it was incompetent for him to do so.
However, Lord Davidson claimed national security was at stake. He accused Ms Scott of "flawed logic" and said her claim the role of the Advocate General was to interfere in matters which should be left to the Scottish authorities was "wholly erroneous".
He told the court: "This is not a minor squabble. It is one of the most important issues that can ever come before a court. It is a question of national security."
The court heard that David Miliband, the Foreign Secretary, is behind moves for a public interest ruling.
Advocate depute Ronald Clancy, QC, for the Crown, also attacked Ms Scott's arguments, saying the lord advocate had not given up any of her independence.
Scotland's top judge, Lord Hamilton - sitting with Lords Kingarth and Eassie - will issue a decision at a later date about whether Lord Davidson has a right to ask them to keep the disputed document secret.
Megrahi was not in court for yesterday's hearing, but the defence said he would like to attend future appeal hearings, raising questions about where the hearings might be held.
[RB: Eventually, the court ordered that the document should be disclosed, though NOT to Megrahi or his legal team but to a special security-vetted counsel, the first time that such a creature (relatively common in English procedure) had been recognised in Scotland.]
Thursday 20 December 2007
Second procedural hearing
Today's procedural hearing before Lords Hamilton, Kingarth and Eassie was, as anticipated, largely concerned with the document in the hands of the Crown, seen and founded upon by the Scottish Criminal Cases Review Commission, that the appellant's legal team is seeking to have disclosed to it. On 11 October the Crown was given six weeks either to get the consent of the foreign country which supplied it to disclosure, or to lodge detailed written reasons as to why the document should not be handed over. The Advocate General for Scotland (who provides Scottish legal advice to the UK Government Departments in London) was also instructed, if so advised, to lodge written answers.
The Lord Advocate (who, as well as being head of the Scottish public prosecution system, is legal adviser to the Scottish devolved Government) lodged answers basically saying no more than that, for reasons that she did not see fit to vouchsafe, the document in question was not disclosable. The Advocate General's answers objected to disclosure on the basis of Public Interest Immunity (PII), but did not deign to disclose what aspects of the public interest would be prejudiced by the document's being handed to the appellant (it already, of course, having been seen by the SCCRC); nor had the Advocate General had the courtesy to lodge a Public Interest Immunity Certificate which would have provided at least some enlightenment.
Maggie Scott QC for Mr Megrahi argued that the Advocate General's PII objection should be dismissed without further argument given that he had not produced in his written answers any material to support it and because it had not been adopted by the Lord Advocate who, in the Scottish criminal justice system is the officer in whose hands alone rests the responsibility for protecting the wider public interest (subject, of course, to ultimate supervision by the High Court). Ronnie Clancy QC for the Crown, however, stated that although no mention of any public interest objection to disclosure was made in the Lord Advocate's answers, this was simply because she had decided that, on this issue, she should defer to the UK Government and the Advocate General since responsibility for foreign relations is non-devolved and rests with the UK Government and so that aspect of the public interest (ie preserving good relations with the foreign government that supplied the document and which has refused to consent to its being disclosed) should be ceded to the Advocate General.
The court, "with great reluctance" allowed the Lord Advocate and the Advocate General six weeks to provide full written reasons for their claim to PII and appointed all parties to lodge by that date a note of their legal arguments and the authorities supporting them on the PII issue. It then fixed a one day hearing for 20 February 2008 for the issue to be fully debated in open court. The Lord Justice General, Lord Hamilton, made it abundantly plain that the court regarded the conduct of both the Lord Advocate and the Advocate General in failing, within the generous period of six weeks allowed them on 11 October, to provide written answers that set out the substance of their objection to disclosure, with full supporting reasons, as highly unsatisfactory.
Two other matters were discussed at the hearing. The first was the scope of the appeal. The Crown had earlier stated that it would consider asking the court to exercise its discretion to refuse to allow to be argued all (or some) of the Grounds of Appeal that related to matters that had been investigated by the SCCRC but rejected by that body. Today Mr Clancy went considerably further: the Crown now wished to argue that, as a matter of law, the Appeal Court was not permitted to hear Grounds of Appeal that had not been accepted by the SCCRC. That is a legal issue that has already been decided by a three-judge bench who held in 2004 (http://www.scotcourts.gov.uk/opinions/XC956.html) that there was no such restriction on the Grounds of Appeal that could be heard. Nothing daunted, Mr Clancy asked for a five-judge court to be convened to reconsider the matter. The court ordered the Lord Advocate to submit within one month a written note setting out her legal arguments and appointed the appellant to submit written answers within one month thereafter. A five-judge court would then be convened to hear oral argument.
The final issue raised was the problem the appellant's legal advisers have been encountering in gaining access to the productions used in the original trial. Dumfries and Galloway Police (who are the custodians of most of them) had apparently been advised by the Crown that the appellant could not have access without an order of the court. Mr Clancy indicated that the Crown did not wish to be obstructive and that he was sure that the matter could be resolved amicably. Ms Scott's rejoinder was that the Crown had been nothing but obstructive. The court indicated that if any further problems were encountered in this regard the matter should be brought back before the court.
Observers of the appeal process have speculated that one of the Crown's principal tactics would be to seek to delay the proceedings at every turn. If corroborative evidence of this were needed, today's hearing has supplied it in abundance.
Once again, there was a good attendance on the public benches. Among the relatives present was Dr Jim Swire and Ms Marina Larracoechea Azumendi. Also in attendance was Edwin Bollier, principal of MeBo, the Zürich company that manufactured the timer that is alleged to have detonated the bomb on board Pan Am 103. The acoustics of the courtroom were somewhat better than on the previous occasion. But they still leave a lot to be desired.
The Lord Advocate (who, as well as being head of the Scottish public prosecution system, is legal adviser to the Scottish devolved Government) lodged answers basically saying no more than that, for reasons that she did not see fit to vouchsafe, the document in question was not disclosable. The Advocate General's answers objected to disclosure on the basis of Public Interest Immunity (PII), but did not deign to disclose what aspects of the public interest would be prejudiced by the document's being handed to the appellant (it already, of course, having been seen by the SCCRC); nor had the Advocate General had the courtesy to lodge a Public Interest Immunity Certificate which would have provided at least some enlightenment.
Maggie Scott QC for Mr Megrahi argued that the Advocate General's PII objection should be dismissed without further argument given that he had not produced in his written answers any material to support it and because it had not been adopted by the Lord Advocate who, in the Scottish criminal justice system is the officer in whose hands alone rests the responsibility for protecting the wider public interest (subject, of course, to ultimate supervision by the High Court). Ronnie Clancy QC for the Crown, however, stated that although no mention of any public interest objection to disclosure was made in the Lord Advocate's answers, this was simply because she had decided that, on this issue, she should defer to the UK Government and the Advocate General since responsibility for foreign relations is non-devolved and rests with the UK Government and so that aspect of the public interest (ie preserving good relations with the foreign government that supplied the document and which has refused to consent to its being disclosed) should be ceded to the Advocate General.
The court, "with great reluctance" allowed the Lord Advocate and the Advocate General six weeks to provide full written reasons for their claim to PII and appointed all parties to lodge by that date a note of their legal arguments and the authorities supporting them on the PII issue. It then fixed a one day hearing for 20 February 2008 for the issue to be fully debated in open court. The Lord Justice General, Lord Hamilton, made it abundantly plain that the court regarded the conduct of both the Lord Advocate and the Advocate General in failing, within the generous period of six weeks allowed them on 11 October, to provide written answers that set out the substance of their objection to disclosure, with full supporting reasons, as highly unsatisfactory.
Two other matters were discussed at the hearing. The first was the scope of the appeal. The Crown had earlier stated that it would consider asking the court to exercise its discretion to refuse to allow to be argued all (or some) of the Grounds of Appeal that related to matters that had been investigated by the SCCRC but rejected by that body. Today Mr Clancy went considerably further: the Crown now wished to argue that, as a matter of law, the Appeal Court was not permitted to hear Grounds of Appeal that had not been accepted by the SCCRC. That is a legal issue that has already been decided by a three-judge bench who held in 2004 (http://www.scotcourts.gov.uk/opinions/XC956.html) that there was no such restriction on the Grounds of Appeal that could be heard. Nothing daunted, Mr Clancy asked for a five-judge court to be convened to reconsider the matter. The court ordered the Lord Advocate to submit within one month a written note setting out her legal arguments and appointed the appellant to submit written answers within one month thereafter. A five-judge court would then be convened to hear oral argument.
The final issue raised was the problem the appellant's legal advisers have been encountering in gaining access to the productions used in the original trial. Dumfries and Galloway Police (who are the custodians of most of them) had apparently been advised by the Crown that the appellant could not have access without an order of the court. Mr Clancy indicated that the Crown did not wish to be obstructive and that he was sure that the matter could be resolved amicably. Ms Scott's rejoinder was that the Crown had been nothing but obstructive. The court indicated that if any further problems were encountered in this regard the matter should be brought back before the court.
Observers of the appeal process have speculated that one of the Crown's principal tactics would be to seek to delay the proceedings at every turn. If corroborative evidence of this were needed, today's hearing has supplied it in abundance.
Once again, there was a good attendance on the public benches. Among the relatives present was Dr Jim Swire and Ms Marina Larracoechea Azumendi. Also in attendance was Edwin Bollier, principal of MeBo, the Zürich company that manufactured the timer that is alleged to have detonated the bomb on board Pan Am 103. The acoustics of the courtroom were somewhat better than on the previous occasion. But they still leave a lot to be desired.
Wednesday 27 May 2015
National security and security-vetted advocates
A plea has been made to Lockerbie bombing appeal judges to hold a hearing to discuss a confidential document behind closed doors.
The Advocate General has suggested a security-vetted advocate could represent Abdelbasset Ali al-Megrahi in place of his usual legal team.
The UK Government claims releasing the document would harm national security.
However, Al Megrahi's lawyers have said it could assist his appeal against his conviction for the 1988 atrocity.
The Advocate General - who represents the UK Government - has lodged a public interest immunity plea to keep the document secret.
A three-day procedural hearing at the Appeal Court in Edinburgh is now meeting to decide how to address the issue.
The court previously heard Foreign Secretary David Miliband had signed the public interest immunity certificate.
Judges were told he believes releasing the secret document would cause "real harm" to the national interest.
Advocate General Lord Davidson [of Glen Clova] QC told the court there should be a public interest immunity hearing, and he suggested judges should have access to the document in advance of that hearing.
He said a special representative, if appointed, would be able to represent Al Megrahi's interests.
The Libyan's defence team have not yet given their views in the hearing but Lord Davidson said it appeared that they contest the use of a special representative in this case.
Al Megrahi was not present at the hearing in Edinburgh.
[RB: Incidentally, Prime Minister David Cameron has not yet appointed an Advocate General for Scotland in his new administration. The strong rumour is that it is to be Richard Keen QC who was senior counsel for Lamin Fhimah at the Lockerbie trial, subsequently Dean of the Faculty of Advocates and is currently chairman of the Scottish Conservative Party.]
Sunday 1 June 2008
The Lord Advocate on public interest immunity
According to a report dated 30 May in the news section of the website of Scottish lawyers' magazine The Firm, the Lord Advocate, Eilish Angiolini QC, appears to believe that before the incorporation into Scottish domestic law of the European Convention on Human Rights the Scottish courts were bound to accept, and could not override, any claim of public interest immunity put forward by the Lord Advocate. With reference to the PII debate in the High Court last week and the court's decision to hold a later closed session once the documents have been produced to it, she is quoted as saying:
"What is a surprise is that it is a surprise," Angiolini told The Firm.
"The European Convention of Human Rights is what brings about this new procedure. It is not some frolic on the part of the court or the lawyers involved in this case. In the past, if there was a circumstance where there was public interest immunity, before ECHR, the Lord Advocate simply declared it and the court wouldn’t question that. It has now shifted to a position where the court determines interest, rather than the minister who makes the assertion."
"That is a huge change for the positive, that it is in court. You have to find a way which guards the issue at stake. The court has to determine the way forward. It is a complex issue and probably an issue of communication, but that is where you are hoping that journalists will look into the history of the law in this area. To look at the background, the history and the European jurisprudence. It is a very specialised area. What I hope is that there will be a balanced approach to it, informed by all of the facts."
If the Lord Advocate has been accurately reported, she is hugely mistaken about the history of public interest immunity. It has been the case for at least fifty years (and probably much longer) that Scottish courts could look behind a PII certificate from the Lord Advocate or a government minister and order the document to be made available as evidence. The House of Lords so decided in the Scottish case of Glasgow Corporation v Central Land Board 1956 SC (HL) 1 (and incidentally extended the Scottish approach to England in the later case of Conway v Rimmer [1968] AC 910).
"What is a surprise is that it is a surprise," Angiolini told The Firm.
"The European Convention of Human Rights is what brings about this new procedure. It is not some frolic on the part of the court or the lawyers involved in this case. In the past, if there was a circumstance where there was public interest immunity, before ECHR, the Lord Advocate simply declared it and the court wouldn’t question that. It has now shifted to a position where the court determines interest, rather than the minister who makes the assertion."
"That is a huge change for the positive, that it is in court. You have to find a way which guards the issue at stake. The court has to determine the way forward. It is a complex issue and probably an issue of communication, but that is where you are hoping that journalists will look into the history of the law in this area. To look at the background, the history and the European jurisprudence. It is a very specialised area. What I hope is that there will be a balanced approach to it, informed by all of the facts."
If the Lord Advocate has been accurately reported, she is hugely mistaken about the history of public interest immunity. It has been the case for at least fifty years (and probably much longer) that Scottish courts could look behind a PII certificate from the Lord Advocate or a government minister and order the document to be made available as evidence. The House of Lords so decided in the Scottish case of Glasgow Corporation v Central Land Board 1956 SC (HL) 1 (and incidentally extended the Scottish approach to England in the later case of Conway v Rimmer [1968] AC 910).
Wednesday 17 December 2014
Equality of arms? Fair trial? Forget it!
Crown refuses to reveal secret Lockerbie paper
This is the title of a front-page article in The Herald by Lucy Adams. Whereas I on this blog on 14 December merely speculated that the reason for this week's procedural hearing might be that the Crown had refused to hand over to Mr Megrahi's legal team the document relating to timers seen by the SCCRC, Lucy Adams (whose sources are usually impeccably reliable) states as a fact that this is the reason why the hearing has been called. She writes:
"Two months ago, the Crown Office was instructed to pass on the document or provide substantial reasons as to why it could not be given to the defence.
"However, The Herald can reveal the Crown has since opposed the petition and suggested it has no duty to disclose. It has refused to reveal, even to the defence, the country from which the document originated, or its full reasons for not sharing the information.
"The defence team is understood to be seeking the document which relates to supply of timers and an additional paper."
For the full story, see
The Edinburgh Evening News has picked up the story:
And here is a link to Dr Ludwig de Braeckeleer's commentary on OhMyNews:
It looks, therefore, as if the Crown is claiming Public Interest Immunity in relation to the document, on the basis of the public interest in maintaining good relations with the foreign country which supplied the document with the condition that its confidentiality be preserved. What the judges of the High Court will be required to do, in deciding whether to order the document to be handed over, is to balance that aspect of the public interest against the public interest in a fair trial (protected, inter alia by article 6 of the European Convention on Human Rights) which involves an accused person having access to all evidence that might assist his case.
If this is indeed what the procedural hearing will be concerned with, I, for one, will find it interesting to hear the the Lord Advocate's representative arguing that maintaining good relations with a foreign country is a matter that should take precedence over the fairness of Scottish criminal proceedings.
[The sordid saga of the UK Government’s successful attempt to prevent Abdelbaset Megrahi’s lawyers obtaining access to this document, aided and abetted by the Scottish Crown Office, can be followed here.]
Sunday 25 May 2008
Public interest immunity
The purpose of the hearing that is due to begin in the Criminal Appeal Court on Tuesday, 27 May is to decide whether to uphold or reject the United Kingdom Government’s assertion of public interest immunity (PII) in respect of a document, emanating from a foreign country (not the United States of America), that the Scottish Criminal Cases Review Commission regarded as of such significance that the Crown’s failure to disclose it at the Lockerbie trial may have given rise to a miscarriage of justice.
As a distinguished Scottish judge said in 1968 in a case in the House of Lords: “It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”
What the court has to do is to assess the harm, if any, that would be done to the national interest through disclosure, and weigh that against the harm that would be done to the administration of justice (eg the likelihood, or the possibility, that an unjustified conviction might be upheld) if disclosure were denied. In this balancing exercise, the court must consider what aspects of the UK’s national interest would be harmed by disclosure (eg national security; relations with friendly foreign governments) and what the extent and gravity of that harm would be. Before the Government’s PII claim can succeed, this potential harm must outweigh the public interest in (and the European Convention on Human Rights requirement of) the fairness of criminal proceedings, which involves an accused person’s having access to all relevant material that might assist his defence.
In the past, PII claims have been relatively frequently been upheld in civil cases, but only rarely upheld in criminal cases, where the liberty of the accused person is at stake. And given that the document in question was already in the hands of the Crown at the time of the Lockerbie trial in 2000, I suspect that the court will take some convincing that serious harm would be done to the UK’s national interest by its disclosure today, some eight years later.
As a distinguished Scottish judge said in 1968 in a case in the House of Lords: “It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”
What the court has to do is to assess the harm, if any, that would be done to the national interest through disclosure, and weigh that against the harm that would be done to the administration of justice (eg the likelihood, or the possibility, that an unjustified conviction might be upheld) if disclosure were denied. In this balancing exercise, the court must consider what aspects of the UK’s national interest would be harmed by disclosure (eg national security; relations with friendly foreign governments) and what the extent and gravity of that harm would be. Before the Government’s PII claim can succeed, this potential harm must outweigh the public interest in (and the European Convention on Human Rights requirement of) the fairness of criminal proceedings, which involves an accused person’s having access to all relevant material that might assist his defence.
In the past, PII claims have been relatively frequently been upheld in civil cases, but only rarely upheld in criminal cases, where the liberty of the accused person is at stake. And given that the document in question was already in the hands of the Crown at the time of the Lockerbie trial in 2000, I suspect that the court will take some convincing that serious harm would be done to the UK’s national interest by its disclosure today, some eight years later.
Thursday 1 June 2017
How UK Government hid secret Lockerbie report
[This is the headline over a report published in The Herald on this date in 2012. It reads as follows:]
It has been hidden, blocked and kept secret by the UK Government for more than 20 years, but The Herald can reveal for the first time the contents of the top-secret Lockerbie document that the UK tried to prevent us from publishing.
The highly classified document, which has never even been aired in public or shared with the courts, originally came from Jordan and indicates that a Palestinian terrorist group was involved in the bombing that killed 270 people – something the UK Government has vehemently denied.
The UK Government has gone to considerable lengths to prevent details of the document – which casts further doubt on the safety of the conviction of Abdelbaset Ali Mohmed al Megrahi – being published by The Herald.
It has threatened legal action to stop publication of the newspaper and asked the paper to sign up to a court-approved gagging order.
Our decision to publish details of the document, which was obtained by the Crown Office but never shown to the defence team, will prove highly embarrassing to the Crown, the Foreign and Commonwealth Office and the Office of the Advocate General, whose lawyers have worked tirelessly to prevent it ever being even discussed in public.
The document incriminates the Popular Front for the Liberation of Palestine – General Command (PFLP-GC) in the Lockerbie bombing.
The PFLP-GC were the original suspects in the investigation into the biggest terrorist atrocity ever to have been committed in mainland Britain. However, by 1991 police and prosecutors were entirely focused on Libya. Since then politicians and the investigating authorities have denied the possibility of their involvement, instead blaming the whole atrocity on Libya.
Repeated, high-level attempts to block the report indicate it is vital to unearthing the truth about the Lockerbie bombing. The UK Government arranged for the document to be covered by Public Interest Immunity on national security grounds. This prevented it from being shared with the defence but does not prevent publication by a newspaper.
A source said: "The document itself is historical and regimes have changed so it is hard to believe it presents any risk at all to national security. It originates from Jordan and incriminates the Palestinian terror group the PFLP-GC. The contents are very important but what makes them so much more significant is the lengths the UK Government and others have gone to in order to prevent anyone from seeing the document.
"This is the most remarkable piece of evidence. It does not rule out the Libyans but it does indicate that others were involved.
"It also shows the lengths the UK Government was prepared to go to in order to ensure that any evidence undermining their case against Libya would never see the light of day."
It is thought the document could fatally undermine the case against Abdelbaset Ali Mohmed al Megrahi. He died of cancer last month without knowing the contents of this report.
The Scottish Criminal Cases Review Commission (SCCRC) team that investigated Megrahi's conviction discovered the existence of the document during their four-year investigation which concluded in 2007. Their 800-page report explains that their investigative team were allowed to access the document in Dumfries police station but they were prohibited from removing the notes they made on it and the document itself.
The commission was only able to access the document after signing up to a special agreement not to divulge the contents and was told by the Crown that "a conclusion was reached that the documents did not require to be disclosed in terms of the Crown's obligations".
The SCCRC then ruled that the contents were sufficiently disturbing for a court to have believed the conviction could have been a miscarriage of justice. The failure to disclose the document was one of the six grounds on which the case was referred back for a fresh appeal in 2007.
To date, only the Crown, UK Government and SCCRC team know the contents of this closely guarded document.
Megrahi's legal team pushed for disclosure of the document once it was revealed by the SCCRC. The Scottish courts were in the process of appointing special advocates and a special judge who would decide in secret whether the contents of the document could be disclosed when Megrahi dropped an appeal in 2009 in order to speed his return to Libya. He was released on compassionate grounds in August 2009 because he was suffering from terminal prostate cancer.
This new evidence and the fact it points to the guilt of non-Libyans will also prove embarrassing for the prosecution who failed to share the document with the trial court and who have subsequently argued that the investigation should focus on Libya alone.
A spokesman for the UK's Foreign and Commonwealth Office said: "The UK Government provided all relevant information on the Lockerbie bombing to the Scottish authorities, who considered it as part of the investigation which led to Megrahi's conviction. Any suggestion of 'hiding' documents is simply incorrect.
"The Government entered into a dialogue with The Herald in line with its long-established practice, supported by successive governments, to seek to prevent publication of any material that could cause significant harm to the UK's international relations and national security. We have consistently made clear that we sought to do this through dialogue rather than legal action".
Chapter 25 of the Scottish Criminal Cases Review Commission's Statement of Reasons refers to material which the Crown had proactively disclosed to the Commission during its review of Megrahi's conviction. The Crown claim they wanted to provide this information to Megrahi's legal team during the second appeal and made this clear to the court, but this could not be done because of the UK Government's Public Interest Immunity Certificate.
A spokesman for the Crown Office said: "The suggestion that the PFLP-GC was responsible for the Lockerbie bombing was fully considered by the trial court following the incrimination of this terrorist group by Megrahi during his trial and does nothing to undermine the Crown's case that Megrahi acted with others in the bombing of flight Pan Am 103.
"All material which met the Crown's disclosure obligations in relation to the PFLP-GC was properly disclosed to the defence before the trial and this was confirmed by the SCCRC's investigation.
"The court concluded that the conception, planning and execution of the plot which led to the bombing was of Libyan origin. The court was, of course, only dealing with evidence, not matters of opinion or conjecture."
Tuesday 18 December 2007
Crown refuses to reveal secret Lockerbie paper
This is the title of a front-page article in The Herald by Lucy Adams. Whereas I on this blog on 14 December merely speculated that the reason for this week's procedural hearing might be that the Crown had refused to hand over to Mr Megrahi's legal team the document relating to timers seen by the SCCRC, Lucy Adams (whose sources are usually impeccably reliable) states as a fact that this is the reason why the hearing has been called. She writes:
"Two months ago, the Crown Office was instructed to pass on the document or provide substantial reasons as to why it could not be given to the defence.
However, The Herald can reveal the Crown has since opposed the petition and suggested it has no duty to disclose. It has refused to reveal, even to the defence, the country from which the document originated, or its full reasons for not sharing the information.
The defence team is understood to be seeking the document which relates to supply of timers and an additional paper."
For the full story, see
https://www.heraldscotland.com/news/12452904.crown-refuses-to-reveal-secret-lockerbie-paper/
The Edinburgh Evening News has picked up the story:
http://edinburghnews.scotsman.com/scotland/Crown-refuses-to-reveal-secret.3599269.jp
And here is a link to Dr Ludwig de Braeckeleer's commentary on OhmyNews:
http://english.ohmynews.com/articleview/article_view.asp?article_class=3&no=381263&rel_no=1
It looks, therefore, as if the Crown is claiming Public Interest Immunity in relation to the document, on the basis of the public interest in maintaining good relations with the foreign country which supplied the document with the condition that its confidentiality be preserved. What the judges of the High Court will be required to do, in deciding whether to order the document to be handed over, is to balance that aspect of the public interest against the public interest in a fair trial (protected, inter alia by article 6 of the European Convention on Human Rights) which involves an accused person having access to all evidence that might assist his case.
If this is indeed what the procedural hearing will be concerned with, I, for one, will find it interesting to hear the the Lord Advocate's representative arguing that maintaining good relations with a foreign country is a matter that should take precedence over the fairness of Scottish criminal proceedings.
"Two months ago, the Crown Office was instructed to pass on the document or provide substantial reasons as to why it could not be given to the defence.
However, The Herald can reveal the Crown has since opposed the petition and suggested it has no duty to disclose. It has refused to reveal, even to the defence, the country from which the document originated, or its full reasons for not sharing the information.
The defence team is understood to be seeking the document which relates to supply of timers and an additional paper."
For the full story, see
https://www.heraldscotland.com/news/12452904.crown-refuses-to-reveal-secret-lockerbie-paper/
The Edinburgh Evening News has picked up the story:
http://edinburghnews.scotsman.com/scotland/Crown-refuses-to-reveal-secret.3599269.jp
And here is a link to Dr Ludwig de Braeckeleer's commentary on OhmyNews:
http://english.ohmynews.com/articleview/article_view.asp?article_class=3&no=381263&rel_no=1
It looks, therefore, as if the Crown is claiming Public Interest Immunity in relation to the document, on the basis of the public interest in maintaining good relations with the foreign country which supplied the document with the condition that its confidentiality be preserved. What the judges of the High Court will be required to do, in deciding whether to order the document to be handed over, is to balance that aspect of the public interest against the public interest in a fair trial (protected, inter alia by article 6 of the European Convention on Human Rights) which involves an accused person having access to all evidence that might assist his case.
If this is indeed what the procedural hearing will be concerned with, I, for one, will find it interesting to hear the the Lord Advocate's representative arguing that maintaining good relations with a foreign country is a matter that should take precedence over the fairness of Scottish criminal proceedings.
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