MacAskill may have breached Official Secrets Act over Lockerbie

[This is the headline over a report in today’s edition of the Sunday Herald. It reads in part:]

Former justice minister Kenny MacAskill has revealed details of highly classified secret document which casts serious doubt on the safety of the conviction of Lockerbie bomber Abdelbaset al-Megrahi.

However, the Foreign and Commonwealth Office (FCO) has said that the revelation, which will appear in MacAskill's new book about the downing of Pan Am flight 103, 'might' constitute a breach of the Official Secrets Act.

It is understood the FCO only became aware that top secret details were disclosed in MacAskill’s book when the Sunday Herald contacted the UK government about the revelations. Officials are now believed to be seeking legal advice.

The person who discloses information is guilty of an offence if they do so “without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure”.

In his book, The Lockerbie Bombing: The Search for Justice, which is due to be released on Thursday, MacAskill reveals details of a secret document which implicates the terror group the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) in the Lockerbie bombing carried out on December 21 1988.

The PFLP-GC were the original suspects in the investigation into the biggest terrorist atrocity ever to have been committed in mainland Britain, which claimed the lives of 270 people, including 11 Lockerbie residents.

However, by 1991 police and prosecutors were entirely focused on Libya and in 2001 Megrahi – who was a former Libyan intelligence officer - was convicted of the bombing and sentenced to life in prison. (...)

The significance of the document which implicates the PFLP-GC is played down by MacAskill in his book but it does suggest others may have been involved in the bombing.

The details of the document are covered by a strict Whitehall gagging order. The document in question was the subject of a legal wrangle during Megrahi’s second appeal against conviction.

The Scottish Criminal Cases Review Commission (SCCRC) referred the case to the High Court on the basis that there may have been a miscarriage of justice.

That conclusion was reached after the SCCRC team that investigated Megrahi's conviction discovered the existence of the document during their four-year probe 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 prevented from removing the notes they made on it and the document itself.

The SCCRC 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”.

When Megrahi’s defence team pushed for the recovery of the information the Lord Advocate took the view that it would be appropriate to disclose the document.

However, the Advocate General, representing the UK government, produced a public interest immunity (PII) certificate signed by then Foreign Secretary David Miliband, which blocked the disclosure on the grounds of national security.

A spokeswoman for the FCO confirmed that “the [PII] certificate is still active” and “if the material protected by the certificate were disclosed, it might constitute a breach of the Official Secrets Act.”

She added: “It would be for the publisher of the book to seek their own legal advice about any legal risks they are running.”

A Scottish Government spokeswoman said: “This is a matter for the publisher to advise upon.”

In 2012 the UK Government went to great lengths to prevent our sister paper The Herald revealing details of the document.

It threatened legal action to stop publication and asked the paper to sign up to a court-approved gagging order.

At that time only the Crown, UK Government and SCCRC team knew the contents of the closely guarded document.

The Herald did publish some details which implicated the PFLP-GC, and revealed that the document originated in Jordan.

MacAskill, however, has gone much further, naming key individuals who were party to the contents of the document, and the potential security ramifications of its release into the public domain.

The Sunday Herald has chosen - after consultation with our lawyers - not to publish the full details of the document despite knowing its contents.

Co-founder of campaigning organisation Lockerbie Truth, Dr Jim Swire, 80, whose daughter Flora was killed in the bombing, said the revelations confirmed his suspicions about the potential involvement of the PFLP-GC.

He said: “It’s exactly what the relatives of the victims have thought for many years. I hope that the book is published without interference. It may lead us to find ways of breaking through the refusal to look again at the evidence used to convict Megrahi.

“This sort of thing - pointing to official knowledge of the real perpetrators - could be absolutely crucial.”

A Crown Office spokesman said: “The Crown has had no involvement in the publication of the former Cabinet Secretary’s book and cannot therefore comment on its content ahead of publication.

“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. (...)”

When asked about the possible breach of the PII certificate, Victoria Gilder, Publicity Director at Biteback, the publisher of MacAskill’s book, said: “Sorry, I can’t comment on that because I don’t know anything about it.

“The book is embargoed until next week…you’re not supposed to run anything. It’s embargoed until Monday.”

Last night a Foreign Office spokesman confirmed that the government department has not seen a copy of the book, but added: “We take the protection of material covered by Public Interest Immunity certificates extremely seriously.”

UK Government held entitled to claim public interest immunity

[What follows is the text of a report by Lucy Adams in The Herald on this date in 2008:]

The defence team for the Libyan jailed for the Lockerbie bombing yesterday suffered a set-back in its attempts to get access to a top-secret document.

The document, which originated in an unknown foreign country, is thought to contain vital information about the timer which detonated the bomb that killed 270 people in 1988.

At the previous hearing, the UK Government said the document could not be disclosed for reasons of national security, leading the defence team to accuse it of "interference" in the appeal.

Margaret Scott QC, senior counsel for Abdelbaset Ali Mohmed al Megrahi, the Libyan currently serving 27 years in Greenock prison for the bombing, objected to the Advocate General for Scotland - the law officer who represents the UK Government in Scottish affairs - playing a part in the debate.

She accused the government of meddling - an allegation hotly disputed by Lord Davidson, the Advocate General, and by Elish Angiolini QC, the Lord Advocate and head of prosecutions in Scotland.

However, yesterday the appeal judges ruled against her. Their decision opens the way for several days of future debate about whether letting lawyers see the document would have any security implications.

The Libyan's defence team say it needs to see the document in order for Megrahi to have a fair appeal.

Earlier this year, the Court of Criminal Appeal in Edinburgh was told that Ms Angiolini would be prepared to disclose the document but that has also been disputed.

The document itself 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 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.

Foreign Secretary David Miliband claims the document should remain confidential.

Now Lord Davidson will be allowed to put the case for "public interest immunity", on his behalf, at a future hearing - for which no date has yet been set. The hearing of Megrahi's actual appeal is still months away.

Megrahi, who was jailed in 2001, was not in court yesterday - but the appeal judges have been told he would like to attend future appeal hearings.

Third procedural hearing ... much as predicted

From what has appeared in the media about the third procedural hearing in the new Lockerbie appeal, it would appear that the arguments were much as had been anticipated in this blog on 19 February.

The most interesting feature of the proceedings is the confirmation of the hints given at the second procedural hearing that if it were up to the Lord Advocate, the head of the prosecution system in Scotland (and a member of the Scottish Government) the document could be made available to Megrahi’s legal team. It is the United Kingdom Government, in the shape of the Foreign Office (represented in Scottish legal proceedings by the Advocate General for Scotland, Lord Davidson of Glen Clova QC) that is claiming that the document should remain secret on the ground of public interest immunity. According to the Advocate General, the Foreign Secretary is of the view that non-disclosure of the document is required in the interests of national security. I may perhaps be forgiven for commenting that, in the light of the UK Government’s resort to “national security” arguments in its attempts to prevent disclosure of material pertinent to the decision to embark upon the Iraq invasion and in its approach to internal security measures in the “war” against terrorism, confidence in the UK Government’s assessment of the UK national interest must be pretty low.

The Court of Appeal, which has reserved its judgment (“made avizandum” in Scottish legal parlance) will now have to decide (a) whether it is competent for the UK Government to raise the issue of public interest immunity in Scottish criminal proceedings when the Scottish public prosecutor chooses not to do so (my prediction is that the court will rule in favour of the competency of the Advocate General’s plea) and (b) whether the “national security” argument outweighs the public interest in an accused person’s having access to all material that might assist in his defence (my prediction here is that the court will order the document to be made available to Megrahi’s lawyers).

The Guardian's account of the proceedings is to be found at http://www.guardian.co.uk/uk/2008/feb/21/lockerbie.scotland

And The Telegraph's is at
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/02/20/nlockerbie120.xml

For the serious Scottish media’s accounts of the procedural hearing, see
http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/7254822.stm
http://www.theherald.co.uk/news/news/display.var.2060826.0.Westminster_meddling_in_Megrahi_case.php
http://thescotsman.scotsman.com/scotland/Legal-row-breaks-out-over.3799673.j

Third procedural hearing

A full court day has been allocated on Wednesday, 20 February for the third procedural hearing in the appeal by Abdelbaset Megrahi. For an account of proceedings at the first two procedural hearings, see
http://lockerbiecase.blogspot.com/2007/10/procedural-hearing_11.html
and
http://lockerbiecase.blogspot.com/2007/12/second-procedural-hearing.html

The principal issue now to be discussed is the United Kingdom Government’s claim for public interest immunity (PII) in respect of disclosure of the document from a foreign country (not the United States of America) the failure to disclose which to the defence at the original trial was one of the reasons that the Scottish Criminal Cases Review Commission gave for concluding that Mehrahi’s conviction may have amounted to a miscarriage of justice.

PII is a doctrine that permits a party to legal proceedings or the Crown to claim that certain evidence, even though relevant to the issue that the court has to decide (eg the guilt or innocence of an accused person) should not be led in court because to do so would be detrimental to the public interest. There is, of course, a public interest in the fair administration of justice, and that usually means that any evidence which could help to demonstrate the accused’s innocence, should be made available to the court. But it is possible for the Government to argue that this aspect of the public interest is outweighed in a particular case by some competing aspect, such as the preservation of national security. What the court then has to do is to balance the competing public interests and decide which one prevails. In criminal cases, securing that the accused has a fair trial, which involves being able to lead all evidence that might assist in establishing his innocence, normally (but not always) is held to outweigh the Government’s claim for secrecy.

The aspect of public interest that the UK Government appears to be advancing in the present case in support of its claim for PII is the preservation of good relations with the foreign country from which the document in question emanates. The Crown says that it sought to obtain that country’s consent to its disclosure to Megrahi’s legal team for use in the appeal, but that permission was denied. What the Appeal Court has to decide on Wednesday is whether that is a good enough reason for continuing to deny Megrahi’s lawyers access to a document that the SCCRC thought of such importance that his failure to have access to it at the original trial meant that there might have been a miscarriage of justice.

[Because of a conference being held at Gannaga Lodge, I shall be unable to make further postings on this blog until at least Thursday 21 February.]

Public interest immunity and security-vetted counsel

[What follows is the text of a report published in The Herald on this date in 2008:]

Prosecutors will next week attempt to throw an unprecedented veil of secrecy over the appeal of the Lockerbie bomber.

The Crown Office will ask judges to bypass the defence team of Abdelbaset Ali Mohmed al Megrahi and appoint special security-vetted advocates to represent him in a court hearing to decide whether a previously confidential document should be made public.

If the bid for a closed-door session is successful, it would be the first time in Scotland that such a step has been taken in a criminal case.

However, the tactic will fuel suspicions that the Crown is going to unusual lengths to preserve the UK's current diplomatic relations with other nations.

The paperwork, which originated in an unknown foreign country, is thought to contain vital information about the electronic timer which detonated the bomb that killed 270 people in the skies over Lockerbie.

It is not known if political pressure has been exercised directly on the Crown, but there have been previous instances in the Megrahi case where Britain's changed attitudes to foreign states since 1988 have played a key role in the legal process.

Foreign Secretary David Miliband has already said the document should remain confidential.

It 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 the document could constitute a miscarriage of justice. Although the Crown allowed the commission to see the material, it has refused to disclose it to Megrahi's defence team.

The Crown's latest move is expected to anger further his lawyers, who believe the failure to disclose the document calls into question the ultimate right to a fair appeal.

The request will be made on Tuesday at the Court of Criminal Appeal when the decision on whether to grant the defence access to the document is to be debated.

The Crown is expected to ask for the hearing to be held behind closed doors in the absence of the defence, who would be represented by special advocates. Public Interest Immunity hearings of this kind in criminal cases have previously been held only south of the border, where there is a statutory system in place, and a list of special advocates.

Megrahi's defence team has made it clear that it needs to see the document in order to proceed with the appeal, and has accused the UK Government of "interference" in the appeal.

If the prosecution denies access to the paper, Megrahi's lawyers are expected to argue that the conviction should be quashed because, without it, their client's right to a fair trial would be breached.

One legal expert said: "This is entirely unprecedented in Scotland."

A spokesman for the Crown Office said the court hearing is to be from from May 27 to 29 in Edinburgh. "It is not possible to provide further comment," he said.

[RB: It was, of course, the UK Government (represented by the then Advocate General for Scotland, Lord Davidson of Glen Clova QC) not the Lord Advocate or the Crown Office, that sought the appointment of a special security-vetted advocate. The court ultimately (and utterly wrongly) acceded to the request. If a further appeal takes place in consequence of the current application to the Scottish Criminal Cases Review Commission, will the present UK government adopt the same attitude? And, if so, will a differently constituted judicial bench be as supine as its predecessor? By the time those become live issues it is to be hoped that Prime Minister David Cameron will have got round to appointing an Advocate General -- at the time of writing the only ministerial office yet to be filled in the new UK administration.]

Public Interest Immunity and the UK Foreign Office

[What follows is an item that was originally posted on this blog on 15 February 2009:]

The FCO and public interest immunity

‘The Foreign Office (FCO) solicited the letter from the US State Department that forced British judges to block the disclosure of CIA files documenting the torture of a British resident held in Guantánamo Bay, The Observer can reveal.

‘The letter said that the release of papers relating to Binyam Mohamed would damage future intelligence sharing between the two countries.

‘A former senior State Department official said that it was the Foreign Office that initiated the "cover-up" by asking the State Department to send the letter so that it could be introduced into the court proceedings. (…)

‘The former senior State Department official said: "Far from being a threat, it was solicited [by the Foreign Office]." The Foreign Office asked for it in writing. They said: 'Give us something in writing so that we can put it on the record.' If you give us a letter explaining you are opposed to this, then we can provide that to the court."

‘The letter, sent by the State Department's top legal adviser John Bellinger to foreign secretary David Miliband's legal adviser, Daniel Bethlehem, on 21 August last year, said: "We want to affirm in the clearest terms that the public disclosure of these documents or of the information contained therein is likely to result in serious damage to US national security and could harm existing intelligence-sharing arrangements."’

The above are excerpts from an article in today’s edition of The Observer.

The reasons advanced by the Foreign Secretary in the Binyam Mohamed case for asserting public interest immunity are precisely the same reasons as he put forward in his PII certificate in the current Lockerbie appeal. It was claimed in the Appeal Court by the Advocate General that the UK Government had tried, but failed, to obtain the consent of the “foreign power” that supplied the document(s) which Mr Megrahi’s legal team sought to have disclosed and the non-disclosure of which at the original trial formed the basis of one of the grounds on which the Scottish Criminal Cases Review Commission held that his conviction may have amounted to a miscarriage of justice.

One is now left wondering just how hard the FCO tried to get the foreign power’s consent to disclosure, and whether it was suggested to the foreign power that the FCO’s preferred response to the request would be “No”.

Procedural hearing in the Megrahi family appeal

[What follows is excerpted from a report published today on the website of The Herald:]

Lawyers representing the family of Abdelbaset al-Megrahi, the Libyan man jailed for the 1988 Lockerbie bombing, are to begin a fight against his conviction on Friday - with a call for better transparency.

Megrahi, who died in 2012, was the only person convicted for the bombing which killed 243 passengers and 16 crew on Pan Am Flight 103 as it travelled from London to New York. Eleven people on the ground in Lockerbie also lost their lives in what was the biggest terrorist attack on British soil. (...)

Now an appeal is being started after a Scottish commission ruled a miscarriage of justice may have occurred.

On Friday a procedural hearing in an appeal against conviction will start presided over by Scotland’s most senior judge the Lord President – Lord Carloway along with the Lord Justice Clerk-Lady Dorian and Lord Menzies.

The hearing will take place by means of WEBEX, a video conferencing online application.

The judges will appear on screen and appeal legal team will appear from a facility in Glasgow.

Appeal lawyer Aamer Anwar (below)  on behalf of the family of the late Al-Megrahi said they need to move the court to consider granting authority to see certain "important" documents "over which public interest immunity is asserted".

He said: "Our argument is that public interest immunity certificate is not everlasting, it has been 31 years since the bombing and the UK Government represented by the Advocate General should justify why it is still asserting PII and denying full disclosure of this information to our team."

He added: "We are disappointed that the Scottish Government, the UK Government, the United States and other foreign governments have refused consent to disclose matters which at this time remain redacted in papers disclosed to us."

Mr Anwar has said the grounds for the family’s appeal were “substantial”. (...)

The Scottish Criminal cases review commission in March issued a 419-page decision saying that “further information” provided grounds for appeal.

The commission cited an “unreasonable verdict” and “non-disclosure” in the handling of the case. (...)

Mr Anwar's office says that it is widely claimed that the Lockerbie bombing was ordered by Iran and carried out by a Syrian based terrorist group in retaliation for a US Navy strike on an Iranian Airbus six months earlier, in which 290 people died.

Mr Anwar said: "The reputation of the Scottish criminal justice system has suffered badly both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi; he was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.

"A reversal of the verdict would have meant that the governments of the United States and the United Kingdom stand accused of having lived a monumental lie for 31 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit."

He said the Appeal Court in a judgment in July 2015, ruled that the relatives of Lockerbie bombing victims would not be allowed to pursue an appeal on behalf of the only man convicted of the crime.

The families did not give up and in July 2017 a further application was lodged with the Commission on behalf of the Al-Megrahi family.

"There can be never be a time limit on justice, the families who support this appeal have never given up their search for the truth," said Mr Anwar. "On March 11th 2020, the Scottish Criminal Cases Review Commission decided that Mr Megrahi’s case should be referred to the High Court for the determination.

Magrahi's legal team  submitted "serious allegations" of the failure of the Crown to disclose evidence which Mr Anwar's team say have been key to the defence and "interfered with the right to a fair trial".

Mr Anwar's team said the Crown "failed in its duty of disclosure" of relevant material to Mr Al Megrahi’s defence team prior to trial.

"This prejudiced the defence in their preparation and conduct of the trial to such an extent that the Commission have concluded that this may have given rise to a miscarriage of justice," they said.

[RB: In a blogpost on 13 August 2020 I speculated that the document being sought was the one in respect of which Foreign Secretary David Miliband had previously granted a public interest immunity certificate. It appears that I was right.]

Reaction to sealing of 1991 Lockerbie telegram to John Major

[A letter from Dr Jim Swire is published in today's edition of The Times. It reads as follows:]

 As the father of Flora Swire, a victim of the 1988 Lockerbie disaster, may I congratulate The Times on its brave attempt to obtain the contents of a telegram sent to John Major as prime minister from an unnamed overseas government (“Lockerbie telegram must remain sealed until 2032”, Scotland edition, Apr 10). It has long been apparent that there are many fatal flaws in the evidence brought to the Zeist court in 2000-01, and used to convict the Libyan Abdul Baset Ali al-Megrahi of being a key perpetrator.

Lockerbie remains the worst single terrorist outrage to occur in the UK since the Second World War, yet there has been no inquiry. Those who value the independence of judicial systems from political interference must, like us relatives, be concerned about the reluctance of successive UK governments to allow relevant matters to become public. By 2032 I will be 96, and probably leaning on a cromach to listen.

[RB: As submitted, the letter read as follows:]

As the father of Flora Swire, a victim the 1988 Lockerbie disaster may I congratulate The Times on its brave attempt to obtain the contents of a telegram sent to Sir John Major as PM, from an overseas kingdom.

It has long been apparent that there are many fatal flaws in the evidence brought to the Zeist court in 2000/1, and used to convict the Libyan, Baset Al-Megrahi of being a key perpetrator.

During the second appeal by Mr Megrahi against conviction, Scotland's Advocate-General of the day was sent post-haste to confer with then UK Foreign Secretary David Miliband who was persuaded immediately to  issue a PII certificate to protect a communication received by Sir John from access by the public or the defence team.

When a distinguished Scottish newspaper, having discovered the contents was about to publish, it was threatened with draconian measures to disrupt its editions

This communication to Sir John  had been in the possession of the Megrahi  prosecution team for years, but denied to Megrahi's defence. Megrahi's second appeal was on the cusp of reaching parts of the evidence in which it might have been highly relevant.

At that point Mr Megrahi was offered compassionate release and his appeal was stopped.

Lockerbie remains the worst single terrorist outrage to occur in the UK since WWII, yet there has been no inquiry.

Those who value the independence of judicial systems from political interference must, like us relatives, be concerned about the reluctance of successive UK Governments to allow relevant matters to become public for so long.

By 2032 I will be 94 years old, and probably leaning on a cromach to listen.

[RB: An article published in today's edition of The National reads in part:]

A decision to keep under wraps a telegram sent to them prime minister John Major three years after the Lockerbie bombing “adds insult to injury” for the families and friends of those who died in the atrocity, according to a campaigner who believes in the innocence of the late Abdelbaset al-Megrahi, the only person convicted for it.

The Cabinet Office claimed the contents of the telegram to Major in 1991 were against the national interest – despite the fact that former Scottish justice secretary Kenny MacAskill put them into the public domain almost three years ago in his book The Lockerbie Bombing: The Search for Justice.

Officials refused a Freedom of Information (FoI) request from The Times newspaper, which means the document will be kept secret at the UK National Archives, at Kew in London, until at least 2032.

Their response read: “In this instance, we believe the release of the information received in confidence would harm UK relations with the country which provided the information.

“This would be detrimental to the operation of government and would not be in the UK’s interest.

“In light of the potential harm to UK relations with the country concerned, and UK interests there, it is judged that release of the material would not be in the public interest.”

The material is covered by a controversial public interest immunity (PII) certificate, which was signed in 2008 by then foreign secretary David Miliband.

It was identified as important to the defence of Megrahi by the Scottish Criminal Cases Review Commission (SCCRC), which granted his appeal after the Crown failed to disclose details at his 2002 trial.

In his book, MacAskill said the telegram to Major, above, was from the late King Hussein of Jordan and blamed the bombing on the Popular Front for the Liberation of Palestine – General Command (PFLP-GC), the group originally suspected of carrying it out.

Records at the National Archives confirm that Major received a telegram relating to the bombing on November 15, 1991 – the day after the British and US governments announced they were bringing charges against Megrahi and his co-accused Lamin Khalifah Fhimah.

Iain McKie, from the Justice for Megrahi (JfM) group, which is campaigning to clear the Libyan’s name, said: “It beggars belief that the UK government, after 30 years of widespread and well-founded doubts about various aspects of the Lockerbie investigation and trial, continues in its efforts to hide the truth about the tragedy.

“That it should claim to be protecting the public interest only adds insult to injury for the family and friends of the 270 souls who perished.

“Why would they claim it was in the public interest in keeping this material quiet until 2032?

“In some ways it heightens – not lessens – suspicion.

“Here in Scotland we’re awaiting the SCCRC decision on the submission from the Megrahi family – and there is a big story to be told internationally.”

MacAskill told The National there was “no good reason” to keep the contents secret, given that Hussein is dead. He said: “It can hardly exacerbate the situation in Jordan.

“Besides, the Crown has always been happy for it to be released as they think it just adds to the conspiracy theories when there’s a good explanation about it and it doesn’t exculpate Libya or Megrahi.” (...) [RB: The failure to disclose the document to Megrahi's legal team before or during the Lockerbie trial is one of the six reasons given by the SCCRC for finding that Megrahi's conviction might have amounted to a miscarriage of justice. It is accordingly difficult to accept the Crown's contention, as reported here by Mr MacAskill, that it does not exculpate Libya or Megrahi, or at least seriously undermine the case against them.]

Professor Robert Black QC, the architect of the Lockerbie trial in the Netherlands, who believes there was a miscarriage of justice, said: “It is extremely difficult to understand how a document dating from Nov-ember 15, 1991, could still in 2019 adversely affect the national interests of the UK or its relations with the country of origin.”

“Much more likely is that the contents of the documents would embarrass the UK by showing just how tenuous is the case for Libyan responsibility for the Lockerbie tragedy.”

Lockerbie telegram must remain sealed until 2032

[This is the headline over an article in today's edition of The Times. It reads in part:]

Ministers have refused to disclose the contents of a telegram sent to the prime minister three years after the Lockerbie bombing, claiming it would be harmful to Britain.

A message sent to John Major in 1991, containing information about the atrocity from an unnamed overseas government, is held at the UK National Archives at Kew, west London.

An application made by The Times to view it has been rejected on the basis that it would be damaging to national interests.

The cabinet office’s dismissal of the freedom of information request means the document will remain closed to the public until 2032 at the earliest. It has fuelled suggestions from campaigners that evidence relating to Britain’s worst terrorist atrocity is being concealed.

National Archive records confirm that Mr Major received a telegram relating to the Lockerbie bombing on November 15, 1991. [RB: Significantly, this is the day following the announcement by the UK and US governments that they were bringing charges against Abdelbaset Megrahi and Lamin Fhimah: 
http://lockerbiecase.blogspot.com/2010/11/nineteenth-anniversary-of-megrahi.html]

Freedom of information requests are meant to be ruled on within 20 working days. It took almost six months before ministers finally decided that the telegram could not be brought into the public domain.

A response to the request says: “In this instance, we believe the release of the information received in confidence would harm UK relations with the country which provided the information. This would be detrimental to the operation of government and would not be in the UK’s interest.

“In light of the potential harm to UK relations with the country concerned, and UK interests there, it is judged that release of the material would not be in the public interest." (...)

Robert Black, a legal expert who helped to establish the Lockerbie trial, has raised concerns about a lack of transparency from successive UK governments.

The professor emeritus of Scots law at the University of Edinburgh, who is convinced a miscarriage of justice took place, said: “It is extremely difficult to understand how a document dating from November 15, 1991, could still in 2019 adversely affect the national interests of the UK or its relations with the country of origin. Much more likely is that the contents of the documents would embarrass the UK by showing just how tenuous is the case for Libyan responsibility for the Lockerbie tragedy.”

Iain McKie, of the Justice for Megrahi group, said: “It beggars belief that the UK government, after 30 years of widespread and well-founded doubts about various aspects of the Lockerbie investigation and trial, continues in its efforts to hide the truth about the tragedy.

“That they should claim to be protecting the public interest only adds insult to injury for the family and friends of the 270 souls who perished.”

More than 50 government files relating to the bombing on December 21, 1988, are held at the archives.

Late last year a file containing records from the prime minister’s office relating to the “Pan Am 747 air crash” was declassified and listed in records as available to view.

When The Times asked to see it, reporters were told that it had been retained by the government on an indefinite basis.

Dozens of other files, listed under “Aviation security: destruction of Pam Am, Flight 103”, have been closed until 2032. Applications to view them are met with a notice saying that they are “closed and retained”.

[RB: I suspect that the document in question is, or is related to, the one from King Hussein of Jordan in respect of which then Foreign Secretary David Miliband issued a public interest immunity (PII) certificate barring disclosure to Megrahi's legal team in the run-up to his second appeal: https://lockerbiecase.blogspot.com/2016/06/bombshell-book.html.  

The sorry saga of the UK government's PII claim, as it unfolded in Megrahi's 2008 appeal following the SCCRC's reference of his conviction back to the High Court of Justiciary, can be followed here: https://lockerbiecase.blogspot.com/2014/01/uk-and-us-geopolitical-interests-could.html.]

Sidelining Megrahi’s chosen lawyers

[What follows is excerpted from a report published in The Scotsman on this date in 2008:]

The Westminster Government set out a "remarkable" proposal yesterday for judges to go into private session during a preliminary hearing in the Lockerbie bomber's appeal.

Under the plan, claimed to be in the interests of national security, not only would the public be excluded, but Abdelbaset Ali Mohmed al-Megrahi's legal team would also be denied entry. He is seeking access to a classified document, and a vetted lawyer would be appointed to represent his interests at the hearing.

The behind-closed-doors session of the Court of Criminal Appeal would be the first of its kind in Scotland.

"This may initially seem remarkable, and I accept that," said Lord Davidson, QC, the Advocate-General for Scotland, on behalf of the foreign secretary, David Miliband. "This is an area of very considerable difficulty and one forced on the government because of extraordinarily difficult times...in the prevention of terrorism," he added.

Megrahi's lawyers are expected to give their response to the proposal today. (...)

[Megrahi] lost an appeal in 2002, but last year the Scottish Criminal Cases Review Commission referred the case back to the appeal court. One of the reasons cited was that there may have been a miscarriage of justice because the Crown had not disclosed to the defence a document which an unidentified country, not the United States, had provided to the UK government in 1996. It is understood the paper relates to the timer alleged to have been fitted in the bomb.

Megrahi's defence team petitioned the appeal court, seeking access to the document and related papers. In response, Mr Miliband issued a public interest immunity (PII) certificate, stating: "It would cause real harm to the national security of the UK because of damage to counter-terrorism liaison and intelligence gathering between the UK and other states."

The appeal court has said there should be a hearing to consider the merits of the foreign secretary's public interest immunity plea. The current hearing is to determine the procedure to be followed at the hearing on the merits.

Lord Davidson said the Government was entitled to take steps to protect UK security.

His proposal was that the document be disclosed to a five-strong appeal Bench and a "special representative" who would look after Megrahi's interests.

Lockerbie case: campaigner and lawyer hit out at 'withheld' evidence

[This is the headline over a report in today's edition of The National. It reads as follows:]

A prominent figure in the fight to prove the innocence of Libyan Abdelbaset al-Megrahi for the Lockerbie bombing has said keeping the contents of a 1991 telegram to then prime minister John Major secret until at least 2032 is not in Scotland’s – or any other nation’s – public interest.

Dr Jim Swire was speaking to The National after the claim about the document resurfaced. Its contents have been in the public domain for more than three years.

It was said to have been written by the late King Hussein of Jordan, who said the group originally suspected of carrying out the December 1988 atrocity – the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) – was responsible.

And Aamer Anwar, the Scottish lawyer who is leading the Megrahi family’s bid to clear his name, told The National it was a “vital piece of evidence” that had been withheld from Megrahi’s defence.

That view is shared by Swire, who lost his daughter Flora in the bombing. He said: “I can’t make out why it should be in the public interest of the Scots or any other nation for this to remain under public interest immunity (PII) after this long – unless you believe it is in Scotland’s interest to continue to conceal the failure of her biggest international criminal investigation of recent years.

“It was the concealment of items such as this which led Professor Hans Koechler [UN observer to the Camp Zeist trial] to describe the proceedings as not representing justice, largely because of the Crown Office’s failure to share evidently significant material with the defence.

“The King of Jordan’s communication had been made available to the Crown Office for years before [then foreign secretary] David Miliband placed the PII certificate on it, at the Crown Office’s request. [RB: The Crown Office did not oppose release of the communication. It was the Advocate General for Scotland, acting on behalf of the Foreign and Commonwealth Office, that did so.] I think it is in the Scottish public’s interest to know how Whitehall connived with the Crown Office to ensure that justice was not done at Zeist.

He added: “It was Lady Thatcher who originally forbade an inquiry. Could it have been in part because her then recently privatised Heathrow was the showpiece of her privatisation programme?”

Anwar said the Megrahi family case was still with the Scottish Criminal Cases Review Commission (SCCRC) which he expected to report by the end of summer, when he hoped to return to the Appeal Court.

He said: “What is incredibly frustrating is the fact that the British government, the authorities, seem to still be maintaining attempts to continue what would be seen as a cover-up and deny critical information to the defence, because we remain the defence lawyers for Abdelbaset al-Megrahi posthumously.

All of this information which would go to proving his innocence continues to be denied us. The finger of blame as always pointed at the PFLP-GC.

“It is ... shocking behaviour, whether it be from the Crown Office or others in authority who seem to be conducting themselves in this manner.”

Meanwhile, The Telegraph yesterday named four members of the PFLP-GC – allegedly hired by Iran to bring down Pan Am flight 103 as revenge for a US naval attack on an Iranian Airbus in July 1988. They were: Ahmed Jibril, its potential mastermind; Hafez Dalkamoni, his right-hand man; Jordanian-born bomb-maker Marwan Khreesat, who possibly made the Lockerbie device; and Mohammed Abu Talb, who could have delivered it. [RB: I cannot find this Telegraph article. But the newspaper did publish an article naming these four men on 10 March 2014. It can be read here.]

The Crown Office said the PFLP-GC link was considered and rejected at the original trial. A spokesperson added: “The court concluded that the conception, planning and execution of the plot which led to the bombing was of Libyan origin. The only appropriate forum for the determination of guilt or innocence is the criminal court, and Mr Megrahi was convicted unanimously by three senior judges.

“His conviction was upheld unanimously by five judges, in an Appeal Court presided over by the Lord Justice General, Scotland’s most senior judge. As the investigation remains live, it would not be appropriate to offer further comment.” [RB: My commentary on the grave shortcomings of the trial verdict and the appeal can be read here.]