LETTER FROM DR HANS KOECHLER, INTERNATIONAL OBSERVER AT THE LOCKERBIE TRIAL, TO BRITISH FOREIGN SECRETARY DAVID MILIBAND CONCERNING MISLEADING INFORMATION ON THE FOREIGN OFFICE’S WEB SITE AND THE ADVERSE EFFECT OF MR MILIBAND’S ISSUANCE OF A PUBLIC INTEREST IMMUNITY (PII) CERTIFICATE ON THE NEW LOCKERBIE APPEAL
Vienna, 21 July 2008
I regret having to contact you again in the Lockerbie case – a matter that should have been resolved by now (almost twenty years after the tragic event) on the basis of the rule of law. Allow me, first, to refer to the Libya page on the web site of the Foreign & Commonwealth Office. The section related to the midair explosion of Pan Am flight 103 over Lockerbie states, inter alia, that “Al-Megrahi was found guilty and Fhimah not proven [sic!].” While the information concerning Mr. Al-Megrahi is correct, the information concerning Mr. Fhimah is wrong. The accurate words in the case of the verdict reached on Mr. Fhimah would be “not guilty”. It is worthy to note that the sentence on the FCO web site is also semantically flawed. A person can be found “guilty” or “not guilty”, but not “proven” or “not proven”. Only an allegation/accusation, not a person, can be found “proven” or “not proven”. The sentence on the web site can easily be corrected if the word “proven” is replaced by the word “guilty”. ["On 31 January 2001 Al-Megrahi was found guilty and Fhimah not guilty" instead of "On 31 January 2001 Al-Megrahi was found guilty and Fhimah not proven".]* I trust that, for the sake of truth, the Foreign & Commonwealth Office will correct this mistake. The accurate information about the verdict in Mr. Fhimah’s case is to be found in the official transcript of the High Court of Justiciary at Kamp van Zeist (record of Day 86, January 31, 2001, pages 10235 to 10236).**
As international observer, appointed by the United Nations, at the Scottish Court in the Netherlands I am also concerned about the Public Interest Immunity (PII) certificate which has been issued by you in connection with the new Appeal of the convicted Libyan national. Withholding of evidence from the Defence was one of the reasons why the Scottish Criminal Cases Review Commission has referred Mr. Al-Megrahi’s case back to the High Court of Justiciary. The Appeal cannot go ahead if the Government of the United Kingdom, through the PII certificate issued by you, denies the Defence the right (also guaranteed under the European Convention on Human Rights) to have access to a document which is in the possession of the Prosecution. How can there be equality of arms in such a situation? How can the independence of the judiciary be upheld if the executive power interferes into the appeal process in such a way?
In that regard, I have the honour to draw your attention to the recent decision of Trial Chamber I of the International Criminal Court (ICC) to stay the proceedings in the case of the Prosecutor v. Thomas Lubanga Dyilo because of the non-disclosure of exculpatory material (“Decision on the consequences of non-disclosure of exculpatory materials …” of 13 June 2008). The judges stated that “The Chamber has unhesitatingly concluded that the right to a fair trial – which is without doubt a fundamental right – includes an entitlement to disclosure of exculpatory material“ and referred to an ICTY [International Criminal Tribunal for the former Yugoslavia] ruling according to which “the public interest [...] is excluded where its application would deny to the accused the opportunity to establish his or her innocence”. (In a further decision, dated 2 July 2008, Trial Chamber I of the ICC ordered the release of Mr. Dyilo.) I sincerely hope that the British Government will not ignore the basic principle of fairness as expressed in these rulings of international criminal courts and will not insist on a measure that would, if upheld, effectively prevent the Scottish High Court of Justiciary to go ahead with Mr. Al-Megrahi’s Appeal. It is fair to expect that the standards of criminal justice adhered to in the United Kingdom (and within the devolved justice system of Scotland, for that matter) should not be lower than those of international criminal courts and should definitely be in conformity with the requirements of Art. 6 of the European Human Rights Convention.
Should further appeal proceedings become impossible because of the forced non-disclosure of evidence to the Defence, not only myself, who followed the proceedings in the Netherlands as international observer, but the relatives of the victims of the Lockerbie tragedy will be prevented from any further chance of knowing the truth about those responsible for the midair explosion of Pan Am flight 103 over Lockerbie. Many who, like myself, initially trusted in the integrity of the judicial process under Scots law, will feel betrayed. There is no justice without truth – and there can be no truth if evidence is withheld in a criminal case by governmental decree.
***
* Under Scots law, the judges had three options for their verdict: guilty; not guilty; not proven. In Mr Fhimah's case, their ruling was "not guilty" (and not "not proven"). See also Hans Köchler's Lockerbie trial report of 3 February 2001, Para. 12.
** Verdict of the Scottish Court of 31 January 2001: Mr. Al-Megrahi: "guilty", Mr. Fhimah: "not guilty"
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
Wednesday 23 July 2008
Sunday 13 July 2008
Scottish Sunday Express article
In today's Scottish Sunday Express there is an article by Ben Borland headlined "Lockerbie bomber to be freed". It tells of my speculation that Abdelbaset Megrahi could soon be freed because, if it is held that the mysterious document that the UK Government insists should not be disclosed, cannot be divulged to the defence, the Lord Advocate (who has said that, if it were up to her, the document would be handed over) might decide that the Crown could not, in conscience, proceed with opposing an appeal that would not, in the circumstances, be seen to be fair to Megrahi. The Sunday Express story in places hardens what was simply speculation on my part into something approaching fact. The article reads:
‘THE Lockerbie bomber is set to be sensationally freed on a “technicality” because of a controversial legal stalemate involving top secret documents.
Abdelbaset Ali Mohmed Al Megrahi, 56, could even be released before the end of summer because of Westmin-ster’s refusal to make public the papers relating to the 1988 disaster.
Professor Robert Black – who helped orchestrate the Lockerbie trial – insists the Libyan, currently serving life in Greenock Prison, will be returned to his family long before the 20th anniversary of the disaster in December this year.
Scotland’s top judges are still deciding whether or not to release the secret document, which reportedly points the finger of blame at Iran for the atrocity that killed 270 people.
Earlier this year, Foreign Secretary David Miliband signed a Public Interest Immunity certificate to prevent its content being revealed, saying it could harm the national interest.
Speculation is now growing the judges will rule it should remain classified, forcing Lord Advocate Eilish Angiolini to free Megrahi because he
cannot have a fair appeal.
It would also avoid the need to hear any new evidence that may prove there was a miscarriage of justice or even a deliberate cover-up by the US and UK authorities.
Prof Black told the Sunday Express: “If the court says this document can’t be released in the normal way to the defence, then it is distinctly possible the Lord Advocate will say, if it cannot be seen that this appeal process is fair and open, it is better to say we will no longer oppose this appeal. Not because we believe Mr Megrahi is innocent, but because the appeal cannot be seen to be fair.”
The retired law professor added that such a “cynical” outcome would also avoid any renewed calls for a public inquiry.
The document is reportedly a German intelligence debriefing of an Iranian defector, who claimed Tehran paid a Palestinian terror cell to carry out the bombing, after the US accidentally shot down an Iranian passenger jet, in 1988.
Dr Jim Swire, whose daughter Flora was killed in the attack, yesterday said a full hearing would expose the “appalling collusion” of Britain and America.
He added: “There may be an attempt to remove the awkward problem of Megrahi by allowing him to return home and to remove the possibility of a public examination of the evidence.”
Such a move would be “a bit of a downer” to those still seeking the truth, Dr Swire added.'
‘THE Lockerbie bomber is set to be sensationally freed on a “technicality” because of a controversial legal stalemate involving top secret documents.
Abdelbaset Ali Mohmed Al Megrahi, 56, could even be released before the end of summer because of Westmin-ster’s refusal to make public the papers relating to the 1988 disaster.
Professor Robert Black – who helped orchestrate the Lockerbie trial – insists the Libyan, currently serving life in Greenock Prison, will be returned to his family long before the 20th anniversary of the disaster in December this year.
Scotland’s top judges are still deciding whether or not to release the secret document, which reportedly points the finger of blame at Iran for the atrocity that killed 270 people.
Earlier this year, Foreign Secretary David Miliband signed a Public Interest Immunity certificate to prevent its content being revealed, saying it could harm the national interest.
Speculation is now growing the judges will rule it should remain classified, forcing Lord Advocate Eilish Angiolini to free Megrahi because he
cannot have a fair appeal.
It would also avoid the need to hear any new evidence that may prove there was a miscarriage of justice or even a deliberate cover-up by the US and UK authorities.
Prof Black told the Sunday Express: “If the court says this document can’t be released in the normal way to the defence, then it is distinctly possible the Lord Advocate will say, if it cannot be seen that this appeal process is fair and open, it is better to say we will no longer oppose this appeal. Not because we believe Mr Megrahi is innocent, but because the appeal cannot be seen to be fair.”
The retired law professor added that such a “cynical” outcome would also avoid any renewed calls for a public inquiry.
The document is reportedly a German intelligence debriefing of an Iranian defector, who claimed Tehran paid a Palestinian terror cell to carry out the bombing, after the US accidentally shot down an Iranian passenger jet, in 1988.
Dr Jim Swire, whose daughter Flora was killed in the attack, yesterday said a full hearing would expose the “appalling collusion” of Britain and America.
He added: “There may be an attempt to remove the awkward problem of Megrahi by allowing him to return home and to remove the possibility of a public examination of the evidence.”
Such a move would be “a bit of a downer” to those still seeking the truth, Dr Swire added.'
Thursday 6 March 2008
The public interest immunity decision
I am reliably informed that the Criminal Appeal Court's decision on the public hinterest immunity (PII) plea taken by the UK Government (in relation to the document from a foreign country relating to timers) will be released tomorrow (Friday, 7 March). This was the issue debated at the third procedural hearing held on 20 February. See
http://lockerbiecase.blogspot.com/2008/02/third-procedural-hearing.html
and
http://lockerbiecase.blogspot.com/2008/02/third-procedural-hearing-much-as.html
The court has to decide (a) whether it is competent for the Advocate General for Scotland (the UK Government's Scottish legal adviser) to claim PII in Scottish criminal proceedings when the Lord Advocate (Scotland's public prosecutor and a minister in the Scottish Government) has chosen not to claim it; and (b) if it is competent, whether the public interest in "national security", which the UK Government is asserting would be affected if the document were disclosed, outweighs the public interest in the administration of justice which requires that accused persons should have access to all material that could assist their case.
There will also on Friday be a further brief procedural hearing at which Mr Megrahi's legal team will raise the issue of the Crown's refusal to allow them access to the productions used at the original trial; and the issue of the Crown's contention (in the face of appellate decisions to the contrary) that the new appeal should be confined to those issues in respect of which the Scottish Criminal Cases Review Commission (SCCRC) decided that there might have been a miscarriage of justice. In my account on this blog on 20 December 2007 of the second procedural hearing where this issue was first raised, I commented:
"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 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."
http://lockerbiecase.blogspot.com/2008/02/third-procedural-hearing.html
and
http://lockerbiecase.blogspot.com/2008/02/third-procedural-hearing-much-as.html
The court has to decide (a) whether it is competent for the Advocate General for Scotland (the UK Government's Scottish legal adviser) to claim PII in Scottish criminal proceedings when the Lord Advocate (Scotland's public prosecutor and a minister in the Scottish Government) has chosen not to claim it; and (b) if it is competent, whether the public interest in "national security", which the UK Government is asserting would be affected if the document were disclosed, outweighs the public interest in the administration of justice which requires that accused persons should have access to all material that could assist their case.
There will also on Friday be a further brief procedural hearing at which Mr Megrahi's legal team will raise the issue of the Crown's refusal to allow them access to the productions used at the original trial; and the issue of the Crown's contention (in the face of appellate decisions to the contrary) that the new appeal should be confined to those issues in respect of which the Scottish Criminal Cases Review Commission (SCCRC) decided that there might have been a miscarriage of justice. In my account on this blog on 20 December 2007 of the second procedural hearing where this issue was first raised, I commented:
"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 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."
Monday 22 December 2014
Lockerbie prosecutors "afflicted by wilful blindness"
Scottish prosecutors involved in the investigation of Lockerbie bombing in 1988 are “afflicted by wilful blindness” by ignoring concerns from distinguished UK lawyers, Robert Black QC, a Professor of Scots law has told Sputnik.
Scottish state prosecutors involved in the investigation of the Pan Am 103 bombing over Lockerbie in 1988 are “afflicted by wilful blindness” by ignoring concerns from distinguished UK lawyers about the safety of the conviction of Libyan Abdelbaset al-Megrahi, Robert Black QC, a Professor of Scots law has told Sputnik.
“[Prosecutors] must be afflicted by wilful blindness or by unquestioning loyalty to the Crown Office party line,” Black told Sputnik Sunday.
“Among the distinguished lawyers who have expressed grave concerns about the evidence are Sir Gerald Gordon QC -- who was in charge of the Scottish Criminal Cases Review Commission (SCCRC) investigation in 2003 to 2007 -- Michael Mansfield QC, Anthony Lester QC, Gareth Peirce, Benedict Birnberg and Jock Thomson QC,” Black added.
At a service in Washington to mark the 26th anniversary since the bombing that claimed 270 lives, the worst single terrorist attack in British history, Lord Advocate Frank Mulholland, who heads Scotland’s prosecution, known as the Crown Office, told American relatives, “During the 26-year long inquiry not one Crown Office investigator or prosecutor has raised a concern about the evidence in this case.
“We remain committed to this investigation and our focus remains on the evidence, and not on speculation and supposition,” Mulholland added.
Black, along with many UK relatives of victims, has long claimed the prosecution of Megrahi was a miscarriage of justice. The Professor is currently campaigning to have a public inquiry established that would review all the evidence, including new information that, campaigners believe, throws fresh doubt over prosecution claims that Libya was responsible for the attack.
But Black told Sputnik the first step would be to overturn Megrahi’s guilty verdict.
“I think we may get there eventually,” Black told Sputnik referring to the prospects of securing an independent public inquiry. “But realistically the conviction will have to be overturned first – hopefully as a result of the current SCCRC application culminating in a reference back to the High Court.”
Megrahi, who was suffering from terminal cancer, was released on compassionate grounds by the Scottish Government in 2009 and returned to Libya where he died in 2012. In June this year the Libyan’s relatives instructed a Scottish lawyer, Aamer Anwar, to start the process that they hope will lead to an appeal being heard in the Scottish High Court.
But Black told Sputnik that although a posthumous appeal was allowed under Scots law the process was not straightforward.
“The main obstacles are firstly the High Court's power to refuse to hear an appeal even when allowed by the SCCRC,” Black told Sputnik.
“The second obstacle is the tactic of delay. This was the Crown's principal tactic in the last Megrahi appeal, exercised so successfully that a case that should have been concluded before Megrahi’s illness was diagnosed had only just started when he had to apply for compassionate release. I have no doubt that [prosecutors] will use it again. Dragging things out adds to the expenses of the appellants – who will not this time be subsidised by the Libyan government – and the Crown will hope that they run out of money,” Black said.
In 2007 the SCCRC, following a four-year investigation into the case, concluded there were six grounds to refer the case back to the court of appeal, concluding that there may have been a miscarriage of justice. Shortly after the UK Government secured a Public Interest Immunity order preventing key evidence from being given to the defence that might assist in Megrahi’s defence.
“They will again assert Public Interest Immunity in respect of the document relating to timers that formed the basis of two of the SCCRC's grounds of referral in 2007,” Black told Sputnik. “This, of course, will contribute to delay and expense.”
Tuesday 8 March 2016
Megrahi defence team loses bid to access secret document
[This is the headline over an article by Lucy Adams that appeared in The Herald on this date in 2008. It reads as follows:]
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.
Sunday 9 October 2016
Sensitive information from a foreign government
[What follows is excerpted from a report published on this date in 2000 on the BBC News website:]
The Lockerbie trial is to be delayed again after "sensitive" information was given to the prosecution by a government.
In an unexpected development, Scotland's Lord Advocate Colin Boyd QC told the judges on Monday it was impossible to proceed without further enquiries.
He gave few details to the court but confirmed that the information was related to the defence case and did not come from the United States.
Although some witnesses will be heard on Tuesday, the judges, with defence agreement, agreed then to adjourn the trial until Tuesday, 17 October.
On Monday the court at Camp Zeist in Holland was due to hear more evidence relating to the special defences of incrimination put forward by the two accused men.
They have denied all charges against them, blaming others for the atrocity including Mohamed Abo Talb, a former commander in the Palestinian Popular Struggle Front.
Talb, who was jailed for life in 1989 for bombing an airline's office in Copenhagen, was expected to give evidence as a prosecution witness on Monday.
The prosecution declined to comment further on the delay and a Crown Office spokesman said: "We can give no further information other than that given to the court by the lord advocate."
Mr Boyd told the court he had received the new information on Thursday and enquiries were carried out on Friday.
He said: "The matters raised by this information are of some complexity and considerable sensitivity. They relate not to the Crown case but to the defence case.
"Enquiries are continuing but it is likely, though not certain, that I will conclude that the information ought to be disclosed to the defence.
"However there are a number of difficult issues which require to be resolved before any disclosure is possible.
"The sensitivity of the enquiries is such that I am unable to give any further explanation at this stage."
Mr Boyd said it would be "inappropriate" to lead further Crown evidence relating to the special defences as the new information could have a bearing on the cross examination of witnesses.
William Taylor QC, defence counsel for Al Megrahi, told the judges he was "as much in the dark" as them about the reasons for the adjournment and therefore in no position to object to it.
However he added: "I am conscious that my client has now been in custody for some considerable time and any delay further extends that period."
Richard Keen QC, defending Fhimah, said: "It's obviously unfortunate the accused should have been in custody for one and a half years while 57 days of a trial has taken place.
"But the lord advocate was good enough to speak to myself and Mr Taylor before and I fully accept he has obligations incumbent on him in the public interest."
Presiding judge Lord Sutherland said that while a disruption to the proceedings was "unfortunate" the judges accepted the adjournment motion.
He said: "We will adjourn until next Tuesday for enquiries to be made. All we can do is express the hope that there will be sufficient time to resolve the difficulties."
[RB: I suspect that the document referred to above was not in fact provided to the defence at the Zeist trial and is the same document that was only disclosed six years later to the Scottish Criminal Cases Review Commission, and in respect of which the Foreign Secretary, David Miliband, signed a Public Interest Immunity certificate to prevent its being revealed to Megrahi’s legal team for the subsequent appeal. The contents of the document were made public in a report in The Herald in June 2012. Kenny MacAskill made reference to it in his recent Lockerbie book: see Lockerbie: The bid to suppress evidence on this blog on 27 May 2016.]
The Lockerbie trial is to be delayed again after "sensitive" information was given to the prosecution by a government.
In an unexpected development, Scotland's Lord Advocate Colin Boyd QC told the judges on Monday it was impossible to proceed without further enquiries.
He gave few details to the court but confirmed that the information was related to the defence case and did not come from the United States.
Although some witnesses will be heard on Tuesday, the judges, with defence agreement, agreed then to adjourn the trial until Tuesday, 17 October.
On Monday the court at Camp Zeist in Holland was due to hear more evidence relating to the special defences of incrimination put forward by the two accused men.
They have denied all charges against them, blaming others for the atrocity including Mohamed Abo Talb, a former commander in the Palestinian Popular Struggle Front.
Talb, who was jailed for life in 1989 for bombing an airline's office in Copenhagen, was expected to give evidence as a prosecution witness on Monday.
The prosecution declined to comment further on the delay and a Crown Office spokesman said: "We can give no further information other than that given to the court by the lord advocate."
Mr Boyd told the court he had received the new information on Thursday and enquiries were carried out on Friday.
He said: "The matters raised by this information are of some complexity and considerable sensitivity. They relate not to the Crown case but to the defence case.
"Enquiries are continuing but it is likely, though not certain, that I will conclude that the information ought to be disclosed to the defence.
"However there are a number of difficult issues which require to be resolved before any disclosure is possible.
"The sensitivity of the enquiries is such that I am unable to give any further explanation at this stage."
Mr Boyd said it would be "inappropriate" to lead further Crown evidence relating to the special defences as the new information could have a bearing on the cross examination of witnesses.
William Taylor QC, defence counsel for Al Megrahi, told the judges he was "as much in the dark" as them about the reasons for the adjournment and therefore in no position to object to it.
However he added: "I am conscious that my client has now been in custody for some considerable time and any delay further extends that period."
Richard Keen QC, defending Fhimah, said: "It's obviously unfortunate the accused should have been in custody for one and a half years while 57 days of a trial has taken place.
"But the lord advocate was good enough to speak to myself and Mr Taylor before and I fully accept he has obligations incumbent on him in the public interest."
Presiding judge Lord Sutherland said that while a disruption to the proceedings was "unfortunate" the judges accepted the adjournment motion.
He said: "We will adjourn until next Tuesday for enquiries to be made. All we can do is express the hope that there will be sufficient time to resolve the difficulties."
[RB: I suspect that the document referred to above was not in fact provided to the defence at the Zeist trial and is the same document that was only disclosed six years later to the Scottish Criminal Cases Review Commission, and in respect of which the Foreign Secretary, David Miliband, signed a Public Interest Immunity certificate to prevent its being revealed to Megrahi’s legal team for the subsequent appeal. The contents of the document were made public in a report in The Herald in June 2012. Kenny MacAskill made reference to it in his recent Lockerbie book: see Lockerbie: The bid to suppress evidence on this blog on 27 May 2016.]
Sunday 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”.
‘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”.
Thursday 27 November 2008
Ninth (public) procedural hearing: first day
Today’s lengthy procedural hearing was taken up with (a) submissions on the appellant’s most recent petition for disclosure of material in the hands of the Crown; and (b) case management and timetabling.
As regards (a), the material in question is mainly the pre-trial witness statements of the more than 1100 witnesses who featured on the Crown’s list at the Zeist trial. The appellant’s lawyers claim that upwards of 800 of these statements have not yet been handed over. The Crown stated today that it was willing to do so, subject to any public interest immunity issues that might be raised by the Advocate General on behalf of the United Kingdom Government. The Advocate General’s counsel, Raymond Doherty QC, indicated that in the vast majority of cases there was unlikely to be any PII concern and that these statements could be handed over by the Crown within fourteen days. In respect of any few statements in respect of which the UK Government’s assessment was that PII issues arose, the matter would have to return to the court.
As regards (b) Maggie Scott QC for Megrahi asked that the Crown be ordered to answer in writing the appellant’s detailed grounds of appeal. This would serve the useful purpose of clarifying the issues of fact and law on which there was genuine dispute between the parties and of identifying the factual and legal issues on which the parties were at one. The Crown responded that this was not normal Scottish practice and questioned whether it would serve any beneficial function.
The appellant’s legal team had been asked for this hearing to prioritise their grounds of appeal and to indicate the order in which the court should be asked to address them. Ms Scott stated that the appellant wished first consideration to be given to grounds of appeal 1 and 2 relating to the reasonableness of the verdict (ie whether any reasonable tribunal, on the evidence led, could have convicted Megrahi). She stated that the appellant’s legal team would be in a position to argue these grounds in April 2009 and that she anticipated that perhaps four weeks of court time would be required. The next chapter to be addressed should be those portions of ground of appeal 3 relating to the evidence of the Maltese shopkeeper, Tony Gauci. Ms Scott tentatively suggested that this section of the hearing might be scheduled for July 2009 and that as much as eight weeks might be required.
Ms Scott also requested the court at this stage to forward the grounds of appeal to the lawyers who represented Mr Megrahi at the original trial, in order to give them an opportunity, if so minded, to respond to the issues raised and the criticisms made of them in ground of appeal 4 relating to defective or inadequate representation.
The Crown did not indicate any strong views on these prioritising and timetabling matters. The one particularly interesting thing that Ronnie Clancy QC for the Crown disclosed was that, as of today, the Crown did not concede that even if Tony Gauci’s evidence were wholly discredited there remained insufficient evidence to justify the conviction of Megrahi. This is a view that few legal observers share.
The hearing was continued until tomorrow (Friday). It is to be expected that the court will then issue its decision on most of the issues outlined above. The other matter to be dealt with tomorrow is the protocol governing relations between the appellant’s legal team and the special (security-vetted) advocate appointed to consider the mystery document(s) in respect of which the UK Foreign Secretary has already asserted public interest immunity and the non-disclosure of which formed one of the Scottish Criminal Cases Review Commission’s grounds for holding that a miscarriage of justice may have occurred. It is possible that when these matters are discussed tomorrow, the court will have to go into closed session.
The report on the BBC News website can be read here. The Herald's report of the proceedings can be read here. It appears to be the only Scottish or UK newspaper to provide any coverage. Like the BBC, it concentrates on the application for the criminal records of witnesses to be disclosed. Trust the British media to focus on the peripheral and inessential!
As regards (a), the material in question is mainly the pre-trial witness statements of the more than 1100 witnesses who featured on the Crown’s list at the Zeist trial. The appellant’s lawyers claim that upwards of 800 of these statements have not yet been handed over. The Crown stated today that it was willing to do so, subject to any public interest immunity issues that might be raised by the Advocate General on behalf of the United Kingdom Government. The Advocate General’s counsel, Raymond Doherty QC, indicated that in the vast majority of cases there was unlikely to be any PII concern and that these statements could be handed over by the Crown within fourteen days. In respect of any few statements in respect of which the UK Government’s assessment was that PII issues arose, the matter would have to return to the court.
As regards (b) Maggie Scott QC for Megrahi asked that the Crown be ordered to answer in writing the appellant’s detailed grounds of appeal. This would serve the useful purpose of clarifying the issues of fact and law on which there was genuine dispute between the parties and of identifying the factual and legal issues on which the parties were at one. The Crown responded that this was not normal Scottish practice and questioned whether it would serve any beneficial function.
The appellant’s legal team had been asked for this hearing to prioritise their grounds of appeal and to indicate the order in which the court should be asked to address them. Ms Scott stated that the appellant wished first consideration to be given to grounds of appeal 1 and 2 relating to the reasonableness of the verdict (ie whether any reasonable tribunal, on the evidence led, could have convicted Megrahi). She stated that the appellant’s legal team would be in a position to argue these grounds in April 2009 and that she anticipated that perhaps four weeks of court time would be required. The next chapter to be addressed should be those portions of ground of appeal 3 relating to the evidence of the Maltese shopkeeper, Tony Gauci. Ms Scott tentatively suggested that this section of the hearing might be scheduled for July 2009 and that as much as eight weeks might be required.
Ms Scott also requested the court at this stage to forward the grounds of appeal to the lawyers who represented Mr Megrahi at the original trial, in order to give them an opportunity, if so minded, to respond to the issues raised and the criticisms made of them in ground of appeal 4 relating to defective or inadequate representation.
The Crown did not indicate any strong views on these prioritising and timetabling matters. The one particularly interesting thing that Ronnie Clancy QC for the Crown disclosed was that, as of today, the Crown did not concede that even if Tony Gauci’s evidence were wholly discredited there remained insufficient evidence to justify the conviction of Megrahi. This is a view that few legal observers share.
The hearing was continued until tomorrow (Friday). It is to be expected that the court will then issue its decision on most of the issues outlined above. The other matter to be dealt with tomorrow is the protocol governing relations between the appellant’s legal team and the special (security-vetted) advocate appointed to consider the mystery document(s) in respect of which the UK Foreign Secretary has already asserted public interest immunity and the non-disclosure of which formed one of the Scottish Criminal Cases Review Commission’s grounds for holding that a miscarriage of justice may have occurred. It is possible that when these matters are discussed tomorrow, the court will have to go into closed session.
The report on the BBC News website can be read here. The Herald's report of the proceedings can be read here. It appears to be the only Scottish or UK newspaper to provide any coverage. Like the BBC, it concentrates on the application for the criminal records of witnesses to be disclosed. Trust the British media to focus on the peripheral and inessential!
Friday 28 November 2008
Ninth (public) procedural hearing: second day
The High Court this morning announced its decisions on the matters ventilated at yesterday’s hearing.
The court accepted the prioritisation of grounds of appeal advanced by the appellant, and ordered a four-week hearing on grounds 1 and 2 (unreasonableness, on the evidence, of the verdict) to be held in the spring of 2009. Written notes of argument are to be lodged by the appellant six weeks before the date eventually fixed and by the Crown four weeks before. As suggested by Maggie Scott QC for the appellant, the next chapter to be argued will be those parts of ground of appeal 3 (fairness of the trial) that relate to Tony Gauci. The Crown was ordered to provide written answers to this ground of appeal (directed particularly to the appellant’s assertions of fact) within eight weeks from today. The court will then decide how long a hearing will need to be allocated and when that hearing should take place.
The court accepted undertakings from the Crown to hand over to the appellant’s legal team the bulk of the witness statements by 12 December. In respect of those few assessed by the Crown possibly to give rise to public interest immunity issues, the Crown would submit them as soon as possible to the Advocate General who would by 23 January 2009 determine which, if any, gave rise to national security or international relations concerns which the court would require to adjudicate upon. All the rest would be handed over to the appellant.
The Crown undertook to make available to the appellant within eight weeks the UK previous conviction information relating to witnesses. In respect of non-UK convictions, the Crown would use its best endeavours to secure the information from the relevant foreign countries.
The court invited the former legal representatives of the appellant to comment on the grounds of appeal relating to defective representation at the trial and requested them to supply any relevant documentation not already handed over to the appellant’s present legal team.
Argument is continuing on a protocol governing the role of the “special advocate” to be appointed in relation to the mystery document in respect of which the UK Foreign Secretary has asserted public interest immunity.
The court accepted the prioritisation of grounds of appeal advanced by the appellant, and ordered a four-week hearing on grounds 1 and 2 (unreasonableness, on the evidence, of the verdict) to be held in the spring of 2009. Written notes of argument are to be lodged by the appellant six weeks before the date eventually fixed and by the Crown four weeks before. As suggested by Maggie Scott QC for the appellant, the next chapter to be argued will be those parts of ground of appeal 3 (fairness of the trial) that relate to Tony Gauci. The Crown was ordered to provide written answers to this ground of appeal (directed particularly to the appellant’s assertions of fact) within eight weeks from today. The court will then decide how long a hearing will need to be allocated and when that hearing should take place.
The court accepted undertakings from the Crown to hand over to the appellant’s legal team the bulk of the witness statements by 12 December. In respect of those few assessed by the Crown possibly to give rise to public interest immunity issues, the Crown would submit them as soon as possible to the Advocate General who would by 23 January 2009 determine which, if any, gave rise to national security or international relations concerns which the court would require to adjudicate upon. All the rest would be handed over to the appellant.
The Crown undertook to make available to the appellant within eight weeks the UK previous conviction information relating to witnesses. In respect of non-UK convictions, the Crown would use its best endeavours to secure the information from the relevant foreign countries.
The court invited the former legal representatives of the appellant to comment on the grounds of appeal relating to defective representation at the trial and requested them to supply any relevant documentation not already handed over to the appellant’s present legal team.
Argument is continuing on a protocol governing the role of the “special advocate” to be appointed in relation to the mystery document in respect of which the UK Foreign Secretary has asserted public interest immunity.
Tuesday 31 May 2016
Truth revealed on Lockerbie bomb timer
[This is the headline over a report published on the website of The Scotsman on this date in 2008. It reads as follows:]
The top-secret document at the heart of the Lockerbie bombing appeal confirms beyond doubt the bomb timer was supplied to countries other than Libya, Scotland on Sunday can reveal.
The document also gives "considerable detail" on how the use of a small bomb concealed inside a radio-cassette recorder was consistent with Palestinian terrorists rather than Libyans, according to a prominent legal source who has seen the paper.
Important pillars of the Crown's case against Abdelbaset Ali Mohmed al-Megrahi, the Libyan serving life for the atrocity, are "knocked down" by the contents of the document, added the source.
Last week, during a three-day hearing in Edinburgh, Scotland's senior judge, Lord Hamilton, and two of his colleagues listened to legal arguments about whether Megrahi's defence should be allowed to see the document, which was passed to the UK by a foreign power.
The UK Government, represented by Advocate General Neil Davidson QC, is opposing the defence application. Lord Advocate Eilish Angiolini has indicated she would hand it to the defence team but for the public interest immunity status afforded to it by Westminster.
The existence of the document emerged during the Scottish Criminal Cases Review Commission's exhaustive three-year investigation into whether Megrahi may have suffered a miscarriage of justice when he was convicted of the murder of 270 people.
The information in the document was a key part of the Crown's case that the timer used in the bomb was supplied only to Libya. It also appears to confirm that the method of attack was typical of a Palestinian terror cell in Germany.
Scotland on Sunday's source confirmed: "The document dispels any doubts about the supply of MST-13s (timers] elsewhere."
He added: "There is considerable detail about the method used to conceal the bomb. The use of a small Semtex bomb concealed inside a Toshiba radio-cassette recorder was not linked to Libyan terror activity, but to the Popular Front for the Liberation of Palestine – General Command (PFLP-GC), the first suspects in the case."
The source conceded these matters had been "aired previously or pointed to by other evidence" but added: "(It] puts that evidence on another footing because it gives it 100% credibility because of where it comes from.
"I don't think, in itself, it either clears Megrahi or proves anyone else was responsible, but there is material that would undoubtedly be helpful to his defence and, in isolation, would lean away from the Crown's case and the verdict of the judges."
The source declined to reveal which country had provided the information. But, last night, another well-placed source said there were new and compelling indications that it may have been provided by Germany and contained information from an Iranian defector, Abolghasem Mesbahi. [RB: According to Kenny MacAskill in his book The Lockerbie Bombing the document in fact came from Jordan.]
The MST-13 timer used in the bomb was made by Swiss firm Mebo. Its co-owner, Edwin Bollier, has made it clear that the timers were supplied to others, including the Stasi, the former East German secret police. German intelligence would certainly be able to provide evidence of the Stasi's links to Mebo, and to the PFPL-GC's use of Semtex in Toshiba radio-cassette recorders.
In October 1988, two months before Lockerbie, the German secret police cracked a PFPL-GC cell operating in Neuss and recovered four such devices. The bomb-maker, Jordanian Marwan Khreesat, told German agents that a fifth device had been removed from the flat he was working in by the cell's leader, Hafez Dalkamoni, prior to their raid.
It was never recovered and many, including Khreesat himself, believe it was his device that brought down the flight over Lockerbie.
Mesbahi has provided the Germans with intelligence that has enabled them to clear up terror crimes, but he was discredited by the UK when he was put up as a potential witness at the trial of Megrahi and his co-accused, Al Amin Khalifa Fhimah, who was cleared.
In 1996, Mesbahi claimed the bombing had been ordered by his former masters in Tehran, not Tripoli, and it is believed that the document was handed over to the Foreign Office later that same year.
There is growing suspicion among Lockerbie experts that the document could even provide the UK with a way to get Megrahi out of jail without facing a re-trial and thorough examination of aspects of the case that would embarrass the Crown Office and Westminster.
It is possible Megrahi will be freed this year on the fairly straightforward grounds published by the SCCRC. The normal practice in such a landmark case would be to order a retrial, but that has the potential to discredit the UK and the US on the world stage.
However, if Megrahi's conviction were quashed and the appeal court ruled he could not have a fair re-trial without the hidden material going to his defence, he would be freed on those grounds and the matter would eventually draw to a quiet conclusion.
Dr Jim Swire, who lost his daughter, Flora, in the Lockerbie bombing, said he was concerned that the document might prove to be more important than its contents. He said: "If the document is not available to the defence at the appeal, then that appeal will be seen around the world, quite rightly, as unfair.
"The significance is likely to be not in the content, but on the impact it will have on the process, unless we can crack the impasse we're in."
The top-secret document at the heart of the Lockerbie bombing appeal confirms beyond doubt the bomb timer was supplied to countries other than Libya, Scotland on Sunday can reveal.
The document also gives "considerable detail" on how the use of a small bomb concealed inside a radio-cassette recorder was consistent with Palestinian terrorists rather than Libyans, according to a prominent legal source who has seen the paper.
Important pillars of the Crown's case against Abdelbaset Ali Mohmed al-Megrahi, the Libyan serving life for the atrocity, are "knocked down" by the contents of the document, added the source.
Last week, during a three-day hearing in Edinburgh, Scotland's senior judge, Lord Hamilton, and two of his colleagues listened to legal arguments about whether Megrahi's defence should be allowed to see the document, which was passed to the UK by a foreign power.
The UK Government, represented by Advocate General Neil Davidson QC, is opposing the defence application. Lord Advocate Eilish Angiolini has indicated she would hand it to the defence team but for the public interest immunity status afforded to it by Westminster.
The existence of the document emerged during the Scottish Criminal Cases Review Commission's exhaustive three-year investigation into whether Megrahi may have suffered a miscarriage of justice when he was convicted of the murder of 270 people.
The information in the document was a key part of the Crown's case that the timer used in the bomb was supplied only to Libya. It also appears to confirm that the method of attack was typical of a Palestinian terror cell in Germany.
Scotland on Sunday's source confirmed: "The document dispels any doubts about the supply of MST-13s (timers] elsewhere."
He added: "There is considerable detail about the method used to conceal the bomb. The use of a small Semtex bomb concealed inside a Toshiba radio-cassette recorder was not linked to Libyan terror activity, but to the Popular Front for the Liberation of Palestine – General Command (PFLP-GC), the first suspects in the case."
The source conceded these matters had been "aired previously or pointed to by other evidence" but added: "(It] puts that evidence on another footing because it gives it 100% credibility because of where it comes from.
"I don't think, in itself, it either clears Megrahi or proves anyone else was responsible, but there is material that would undoubtedly be helpful to his defence and, in isolation, would lean away from the Crown's case and the verdict of the judges."
The source declined to reveal which country had provided the information. But, last night, another well-placed source said there were new and compelling indications that it may have been provided by Germany and contained information from an Iranian defector, Abolghasem Mesbahi. [RB: According to Kenny MacAskill in his book The Lockerbie Bombing the document in fact came from Jordan.]
The MST-13 timer used in the bomb was made by Swiss firm Mebo. Its co-owner, Edwin Bollier, has made it clear that the timers were supplied to others, including the Stasi, the former East German secret police. German intelligence would certainly be able to provide evidence of the Stasi's links to Mebo, and to the PFPL-GC's use of Semtex in Toshiba radio-cassette recorders.
In October 1988, two months before Lockerbie, the German secret police cracked a PFPL-GC cell operating in Neuss and recovered four such devices. The bomb-maker, Jordanian Marwan Khreesat, told German agents that a fifth device had been removed from the flat he was working in by the cell's leader, Hafez Dalkamoni, prior to their raid.
It was never recovered and many, including Khreesat himself, believe it was his device that brought down the flight over Lockerbie.
Mesbahi has provided the Germans with intelligence that has enabled them to clear up terror crimes, but he was discredited by the UK when he was put up as a potential witness at the trial of Megrahi and his co-accused, Al Amin Khalifa Fhimah, who was cleared.
In 1996, Mesbahi claimed the bombing had been ordered by his former masters in Tehran, not Tripoli, and it is believed that the document was handed over to the Foreign Office later that same year.
There is growing suspicion among Lockerbie experts that the document could even provide the UK with a way to get Megrahi out of jail without facing a re-trial and thorough examination of aspects of the case that would embarrass the Crown Office and Westminster.
It is possible Megrahi will be freed this year on the fairly straightforward grounds published by the SCCRC. The normal practice in such a landmark case would be to order a retrial, but that has the potential to discredit the UK and the US on the world stage.
However, if Megrahi's conviction were quashed and the appeal court ruled he could not have a fair re-trial without the hidden material going to his defence, he would be freed on those grounds and the matter would eventually draw to a quiet conclusion.
Dr Jim Swire, who lost his daughter, Flora, in the Lockerbie bombing, said he was concerned that the document might prove to be more important than its contents. He said: "If the document is not available to the defence at the appeal, then that appeal will be seen around the world, quite rightly, as unfair.
"The significance is likely to be not in the content, but on the impact it will have on the process, unless we can crack the impasse we're in."
Wednesday 15 June 2016
Public interest immunity claim precludes fair hearing
[What follows is excerpted from an item originally posted on this blog on this date in 2008. It reproduces a report in that day’s edition of The Sunday Times which no longer appears on the newspaper’s website.]
The UN observer at the Lockerbie trial, Hans Köchler, has said that the Libyan convicted of the bombing will not get a fair hearing in Scotland.
Köchler, who advises the European Commission on democracy and human rights, has condemned government interference in the appeal of Abdelbaset Ali Mohmed al-Megrahi and said the hearing should be held in a neutral country.
His intervention follows an attempt by the British government to block the release of secret papers that could help clear the former Libyan intelligence agent convicted of the 1988 bombing, which claimed 270 lives.
Köchler said Megrahi’s case was handled “more like an intelligence operation than a genuine undertaking of criminal justice” and criticised MSPs for failing to hold inquiries into the downing of Pan Am 103 and its judicial aftermath. “It is almost trivial to say that a fair trial requires the availability of evidence to the prosecution and defence. Only in a totalitarian system would the executive power interfere in court proceedings and order the withholding of evidence.”
The Advocate General, on behalf of British ministers, had objected to disclosure of the documents to Megrahi’s legal team, lodging a public interest immunity plea.
Last month senior judges ordered that the papers should be released to the Court of Criminal Appeal in Edinburgh, where a panel of three judges will decide in camera whether they should be disclosed.
The documents, which are believed to hold information about the electronic timer that detonated the bomb, were not disclosed to the defence during al-Megrahi’s trial at Camp Zeist in the Netherlands. Megrahi lost an appeal in 2002, but the Scottish Criminal Cases Review Commission concluded that he might have been the victim of a miscarriage of justice and referred his case back to the court last year. One of the grounds for referral is believed to be the prosecution’s failure to disclose the secret document to Megrahi’s lawyers.
Köchler said the decision to hear the appeal in Scotland breached a concordat between the UK, the US and the Netherlands. “The fact that the new appeal proceedings take place in Scotland is not in conformity with the original intergovernmental agreement on the Lockerbie trial.” The proceedings totally lacked “transparency”, he said.
Last week, Robert Black, the Edinburgh law professor who helped to arrange Megrahi’s original trial in the Netherlands said the intergovernmental agreement no longer applied. It “existed for the original trial and the appeal. This is now the second appeal.” The agreement was spent, he said.
“Scotland made a mess of the trial and the appeal, and to an outside observer, that might lend justification to Köchler’s view. But I believe that this time it will be done properly and Megrahi will be released.”
Last year, Köchler said Scotland had the reputation of a “banana republic” because of its handling of the case.'
Sunday 1 June 2008
Yet more on the mystery document
Marcello Mega, who is normally very well-informed on Lockerbie issues, has a story in today's Scotland on Sunday based on information obtained from a source who claims to have seen the document at the heart of the UK Government's public interest immunity claim. The story reads in part:
"The top-secret document at the heart of the Lockerbie bombing appeal confirms beyond doubt the bomb timer was supplied to countries other than Libya, Scotland on Sunday can reveal.
"The document also gives 'considerable detail' on how the use of a small bomb concealed inside a radio-cassette recorder was consistent with Palestinian terrorists rather than Libyans, according to a prominent legal source who has seen the paper.
"Important pillars of the Crown's case against Abdelbaset Ali Mohmed al-Megrahi, the Libyan serving life for the atrocity, are 'knocked down' by the contents of the document, added the source."
The source refused to reveal the foreign country which supplied the document, but Mega speculates (in line with the views of Ludwig de Braeckeleer reported here on this blog) that the country is Germany and the document contains the fruits of the debriefing by the BKA of the Iranian defector, Abolghasem Mesbahi.
The full Scotland on Sunday article can be read here.
"The top-secret document at the heart of the Lockerbie bombing appeal confirms beyond doubt the bomb timer was supplied to countries other than Libya, Scotland on Sunday can reveal.
"The document also gives 'considerable detail' on how the use of a small bomb concealed inside a radio-cassette recorder was consistent with Palestinian terrorists rather than Libyans, according to a prominent legal source who has seen the paper.
"Important pillars of the Crown's case against Abdelbaset Ali Mohmed al-Megrahi, the Libyan serving life for the atrocity, are 'knocked down' by the contents of the document, added the source."
The source refused to reveal the foreign country which supplied the document, but Mega speculates (in line with the views of Ludwig de Braeckeleer reported here on this blog) that the country is Germany and the document contains the fruits of the debriefing by the BKA of the Iranian defector, Abolghasem Mesbahi.
The full Scotland on Sunday article can be read here.
Monday 23 May 2016
The true story of Lockerbie remains untold
[What follows is excerpted from an article by Alan Taylor published in today’s edition of The National:]
Megrahi served little more than eight years before he was sent back to Libya diagnosed with terminal cancer. The person solely responsible for a decision that angered and bemused many people – not least the majority of the victims’ families – was Kenny MacAskill, Scotland’s then Justice Secretary. This book is his attempt to explain how he came to that decision, and to justify it. It makes for painful, disturbing and difficult reading. For if, as MacAskill still appears to believe is the case, Megrahi was instrumental in the Lockerbie bombing, and the verdict was safe, then the rationale for treating him with a compassion alien to his actions is hard to swallow. (...)
All of which, of course, presumes that Megrahi was culpable. Much of the first half of MacAskill’s book is devoted to a reprise of events that will yield little new to those familiar with the Lockerbie saga. Drawing on a limited number of sources, mainly the Scottish Government’s in-house website, and airily dismissing the work of authors such as John Ashton, who was a member of the legal team representing Megrahi, the former Justice Secretary would have us believe that his faith in the Scottish judiciary is unshaken. “I accept the conviction and sentence imposed,” he said in the course of announcing his decision to release Megrahi.
Elsewhere, however, he acknowledges that had the crucial evidence of Tony Gauci –the Maltese shopkeeper who said he sold Megrahi the clothes that were found among the debris from the Pan Am plane – been dismissed from the prosecution case it “would have resulted in an acquittal”.
This, then, is where one finds MacAskill’s argument unpersuasive. There is no doubt that Gauci – described by Lord Fraser of Carmyllie, a former Lord Advocate, as “not quite the full shilling” and “an apple short of a picnic” – was a poor and unreliable witness. For instance, when first asked to detail what Megrahi looked like he described someone who was quite different from the police’s chief suspect. He also had trouble fixing on a date on which Megrahi had visited his shop. Apparently, Megrahi paid for his purchases in cash which Gauci said cost £76.50 which, had there been a receipt, would have saved a lot of head-scratching. Ultimately, he identified Megrahi after he was shown photographs of him by the police. Was he influenced by the fact that he’d previously seen pictures of him in a magazine? Or did the promise of a $2m reward help jog his memory? The depressing fact is that after 28 years, the true story of Lockerbie remains untold.
In Mr MacAskill's book, The Lockerbie Bombing: The Search for Justice, which is due to be released on Thursday, he reveals details of a classified 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 document was the subject of a legal wrangle during Lockerbie bomber Abdelbaset al-Megrahi 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 was 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 has 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”.
Willie Rennie [leader of the Liberal Democrats in the Scottish Parliament] said: “Kenny MacAskill should be investigated by the authorities.
“His cavalier approach to justice has left many casualties in its wake. He should not be profiting from any breach of the Official Secrets Act.”
Scottish Conservative shadow cabinet secretary for justice, Douglas Ross, added: “Questions need answered as to whether he has broken the Official Secrets Act.”
A spokesman for the Foreign Office declined to offer further comment yesterday but it is understood officials are seeking legal advice.
Victoria Gilder, publicity director at Biteback, the publisher of Mr MacAskill’s book said the former justice minister “can’t comment”.
Friday 27 May 2016
Lockerbie: The bid to suppress evidence
It would have been an action unheard of in the Scottish press - the UK Government pulling an entire edition of a newspaper in a bid to suppress a secret document.
But that's exactly what the Foreign and Commonwealth Office (FCO) threatened to do to The Herald in 2012 when it sought to publish details of a report implicating a Palestinian terror group in the Lockerbie bombing.
The full details of what happened were published yesterday in Kenny MacAskill's new book on the atrocity - and the FCO is again taking action.
The government department has said it is "considering the contents" of the book, The Lockerbie Bombing: The Search for Justice, amid claims it may breach of Official Secrets Act.
Mr MacAskill reveals that at the time the Herald was seeking to publish the information, he took a call from Tory MP Alistair Burt, who was working with the FCO.
"He threatened not just to pull The Herald's story, but to pull the whole edition of the newspaper," he said.
"I was incredulous. I told him that the people of Scotland would definitely notice if there was no Herald the next day.
"It really showed the extremes the UK Government was prepared to go to to stop the publication of something fundamental to Scotland's leading criminal case."
The document was subject to Public Interest Immunity, which prevented its release to the defence in the trial of Abdelbaset al-Megrahi, the Libyan convicted of the bombing.
After taking legal advice, The Herald ran the story detailing the main points of the document, including that it came from Jordan and implicated the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) in the December 1988 attack.
Certain information was not available to The Herald at that time, however it has all now been revealed in Mr MacAskill's book.
It is understood that the FCO requested a copy of the book on Sunday ahead of Thursday's publication, but were not provided with one as officials refused to rule out seeking an injunction.
The PFLP-GC were the original suspects in the investigation into Lockerbie, however by 1991 police and prosecutors were entirely focused on Libya.
This document naming the terror group was repeatedly suppressed at a high-level, despite sources claiming it presented little risk to national security.
In 2012, a source told The Herald: "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."
Mr MacAskill, who claimed the suppression of the document had more to with keeping the Jordanians happy so that radical cleric Abu Qatada could be deported from the UK, admits in his book that he believes the PFLP-GC were involved in the plot which killed 270 people.
The former politician, who made the controversial decision to release Megrahi on compassionate grounds in 2009, also raises doubts over the identification of Megrahi buying clothes from a shop in Malta that were found wrapped around the bomb.
However, he is now facing claims it is "dumbfounding" and "hypocritical" for a former justice minister to make such assertions that the case against Megrahi was flawed.
Robert Black QC, one of the architects behind Megrahi's trial who now heads up the Justice for Megrahi campaign, said: "Many of the things that Kenny is saying are the things that we've been saying for years.
"He said on the radio that there should be a new inquiry into Lockerbie - we've been asking for that for years, and it was him we were asking.
"It's only now that he doesn't actually have any power to do something that he's agreeing with us."
Mr Black added that it could be open to the FCO to try to secure a prosecution against Mr MacAskill for breaching the Officials Secrets Act, but he believes it would be highly unlikely.
He said: "Given that The Herald already published much of the detail in 2012, and they got away with it, I can't see how a case could be brought against him."
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