"Al-Megrahi was the man behind the bombing," and "Al-Megrahi's release [in the Lockerbie bombing case] was obviously wrong," says former UK Foreign Secretary David Miliband in an interview on Aljazeera English.
Mr Miliband has clearly not read John Ashton’s Megrahi: You are my Jury or Dr Morag Kerr’s Lockerbie: Fact and Fiction or watched Aljazeera’s documentary Lockerbie: Case Closed.
Until now David Miliband’s best-known contribution to the Lockerbie case was his signing of a public interest immunity (PII) certificate in the context of Abdelbaset Megrahi’s second appeal in an attempt to prevent disclosure of a document (relating to timers) that had been in the hands of the Crown since 1996 (before the Lockerbie trial) but which was never divulged to the defence (as the Scottish Criminal Cases Review Commission believes it should have been). His conduct in this matter was the subject of an editorial in the Sunday Herald headlined Miliband has made Lockerbie appeal a mockery of justice.
Showing posts sorted by date for query "public interest immunity" miliband. Sort by relevance Show all posts
Showing posts sorted by date for query "public interest immunity" miliband. Sort by relevance Show all posts
Monday 10 September 2012
Saturday 2 June 2012
Lockerbie revelations prompt calls for inquiry
[This is the headline over a report by Lucy Adams in today's edition of The Herald outlining reactions to yesterday's revelations in the newspaper. It reads as follows:]
Revelations in The Herald the UK Government tried to suppress have fuelled calls for a public inquiry into the Lockerbie bombing.
Yesterday, we revealed a document the UK Government has blocked for more than 20 years, which has never been aired in public or shared with the courts, originally came from Jordan and indicates a Palestinian terrorist group was involved in the bombing that killed 270 people – which the UK Government has vehemently denied.
The UK Government went to considerable lengths to prevent details of the document – which casts further doubt on the safety of the conviction of Abdelbaset Ali Mohmed al Megrahi – being published by The Herald.
Dr Jim Swire, whose daughter Flora died in the atrocity, said: "No-one has been braver than The Herald in searching for the truth about Lockerbie. For this news to break now goes to the core of features of this case which have worried me for a long time. One is the professed ignorance of the UK Prime Minister and Scottish First Minister when they say they uphold the verdict of the trial and [will] not hold an inquiry.
"During the second appeal in Edinburgh, when the Advocate General spoke he said a Public Interest Immunity [PII] certificate had been granted by the then Foreign Secretary David Miliband. I knew then the establishment of the countries in which I live were opposing my right to know who really murdered my daughter and all those other people, and to know why their precious lives were not protected."
The document incriminates the Popular Front for the Liberation of Palestine – General Command (PFLP-GC) in the bombing. The PFLP-GC were the original suspects in the investigation into the atrocity. However, by 1991 police and prosecutors were entirely focused on Libya.
The UK Government arranged for the document to be covered by Public Interest Immunity on national security grounds.
Willie Rennie MSP, leader of the Scottish Liberal Democrats, said: "This adds further weight to calls for a Scottish public inquiry into the Lockerbie prosecution. Accusations of suppressing evidence and withholding important documents from those at the heart of the investigation cannot be swept under the carpet. The First Minister should order a Scottish public inquiry to ensure the integrity and fairness of the Scottish justice system is put beyond doubt."
It is thought the document could fatally undermine the case against Megrahi, who died of cancer last month. Tony Kelly, Megrahi's solicitor, said the fact the Appeal Court, defence team and Megrahi were never allowed access to it is a "tragedy".
"The publication of details of the document in yesterday's Herald – previously subject to a PII certificate signed by the Foreign Secretary in the course of the appeal proceedings – was the first inkling I had about the content and source of the document," he said. "What a great pity."
John Ashton, the author of Megrahi: You are my Jury, said yesterday: "Mr Megrahi spent 10 years in prison and went to his grave still bearing the weight of his conviction. If this, and all the other important evidence that we now know of, had been disclosed to his lawyers, he should have walked from court a free man and would have spent the last decade with his family. By resisting a public inquiry into the case, the Scottish Government is fuelling the biggest scandal of the country's post-devolution era."
Patrick Harvie MSP, Scottish Green Party co-convener, said: "The Herald's latest twist adds to the long-held doubts about Mr Megrahi's conviction. In its apparent attempt to prevent The Herald talking about this document, the Foreign Office refers to the UK's international relations being harmed. Surely the real risk is to our reputation for justice. A public inquiry would help address this sorry saga."
A Scottish Government spokesman said: "It is the case that the Crown Office wanted to provide this information to Mr Megrahi's legal team during the second appeal and made this clear to the court, but it could not be done because of the UK Government's Public Interest Immunity certificate.
"The issues being raised in relation to the conviction itself must be a matter for a court of law – Mr Megrahi was convicted in a court of law, his conviction was upheld on appeal, and that is the only appropriate place for his guilt or innocence to be determined. It remains open for relatives of Mr Megrahi or the relatives of the victims of the Lockerbie atrocity to ask the SCCRC (Scottish Criminal Cases Review Commission) to refer the case to the Appeal Court again on a posthumous basis."
Revelations in The Herald the UK Government tried to suppress have fuelled calls for a public inquiry into the Lockerbie bombing.
Yesterday, we revealed a document the UK Government has blocked for more than 20 years, which has never been aired in public or shared with the courts, originally came from Jordan and indicates a Palestinian terrorist group was involved in the bombing that killed 270 people – which the UK Government has vehemently denied.
The UK Government went to considerable lengths to prevent details of the document – which casts further doubt on the safety of the conviction of Abdelbaset Ali Mohmed al Megrahi – being published by The Herald.
Dr Jim Swire, whose daughter Flora died in the atrocity, said: "No-one has been braver than The Herald in searching for the truth about Lockerbie. For this news to break now goes to the core of features of this case which have worried me for a long time. One is the professed ignorance of the UK Prime Minister and Scottish First Minister when they say they uphold the verdict of the trial and [will] not hold an inquiry.
"During the second appeal in Edinburgh, when the Advocate General spoke he said a Public Interest Immunity [PII] certificate had been granted by the then Foreign Secretary David Miliband. I knew then the establishment of the countries in which I live were opposing my right to know who really murdered my daughter and all those other people, and to know why their precious lives were not protected."
The document incriminates the Popular Front for the Liberation of Palestine – General Command (PFLP-GC) in the bombing. The PFLP-GC were the original suspects in the investigation into the atrocity. However, by 1991 police and prosecutors were entirely focused on Libya.
The UK Government arranged for the document to be covered by Public Interest Immunity on national security grounds.
Willie Rennie MSP, leader of the Scottish Liberal Democrats, said: "This adds further weight to calls for a Scottish public inquiry into the Lockerbie prosecution. Accusations of suppressing evidence and withholding important documents from those at the heart of the investigation cannot be swept under the carpet. The First Minister should order a Scottish public inquiry to ensure the integrity and fairness of the Scottish justice system is put beyond doubt."
It is thought the document could fatally undermine the case against Megrahi, who died of cancer last month. Tony Kelly, Megrahi's solicitor, said the fact the Appeal Court, defence team and Megrahi were never allowed access to it is a "tragedy".
"The publication of details of the document in yesterday's Herald – previously subject to a PII certificate signed by the Foreign Secretary in the course of the appeal proceedings – was the first inkling I had about the content and source of the document," he said. "What a great pity."
John Ashton, the author of Megrahi: You are my Jury, said yesterday: "Mr Megrahi spent 10 years in prison and went to his grave still bearing the weight of his conviction. If this, and all the other important evidence that we now know of, had been disclosed to his lawyers, he should have walked from court a free man and would have spent the last decade with his family. By resisting a public inquiry into the case, the Scottish Government is fuelling the biggest scandal of the country's post-devolution era."
Patrick Harvie MSP, Scottish Green Party co-convener, said: "The Herald's latest twist adds to the long-held doubts about Mr Megrahi's conviction. In its apparent attempt to prevent The Herald talking about this document, the Foreign Office refers to the UK's international relations being harmed. Surely the real risk is to our reputation for justice. A public inquiry would help address this sorry saga."
A Scottish Government spokesman said: "It is the case that the Crown Office wanted to provide this information to Mr Megrahi's legal team during the second appeal and made this clear to the court, but it could not be done because of the UK Government's Public Interest Immunity certificate.
"The issues being raised in relation to the conviction itself must be a matter for a court of law – Mr Megrahi was convicted in a court of law, his conviction was upheld on appeal, and that is the only appropriate place for his guilt or innocence to be determined. It remains open for relatives of Mr Megrahi or the relatives of the victims of the Lockerbie atrocity to ask the SCCRC (Scottish Criminal Cases Review Commission) to refer the case to the Appeal Court again on a posthumous basis."
Tuesday 20 July 2010
David Cameron orders release of secret Lockerbie bomber documents
This is the headline over a report just published on the Telegraph website. For a fleeting instant I naively entertained the thought that the documents might be those in respect of which the UK government, acting through then Foreign Secretary David Miliband, in Mr Megrahi's most recent appeal claimed public interest immunity on grounds of national security. What a silly-billy I am! The papers that are to be released are as follows:
'In Washington, Mr Cameron said: “I am asking the Cabinet Secretary in the UK to go back over all the paperwork and see if there is anything else that should be released so there is the clearest possible picture out there of what decision [ie to repatriate Mr Megrahi] was taken and why.
'“I do not currently think that another inquiry is the right way to go. I don’t need an inquiry to tell me what I already know, which is that it was a bad decision.”'
So there we are. The circumstances in which Mr Megrahi was returned to his homeland are to be the focus of the document review rather than the circumstances in which he was wrongly convicted. Any meaningful inquiry would, of course, be too embarrassing to both the UK and the USA to be contemplated. O tempora, O mores!
'In Washington, Mr Cameron said: “I am asking the Cabinet Secretary in the UK to go back over all the paperwork and see if there is anything else that should be released so there is the clearest possible picture out there of what decision [ie to repatriate Mr Megrahi] was taken and why.
'“I do not currently think that another inquiry is the right way to go. I don’t need an inquiry to tell me what I already know, which is that it was a bad decision.”'
So there we are. The circumstances in which Mr Megrahi was returned to his homeland are to be the focus of the document review rather than the circumstances in which he was wrongly convicted. Any meaningful inquiry would, of course, be too embarrassing to both the UK and the USA to be contemplated. O tempora, O mores!
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”.
Saturday 7 February 2009
Truth and justice mean more than national security
[The following letter from Rev John Mosey, whose daughter Helga died aboard Pan Am 103, appears in today's edition of The Herald.]
The Herald is to be congratulated on its excellent coverage of the comments made in London by Their Lordships Thomas and Lloyd Jones in their written ruling concerning "threats" to "national security" were they to publish a summary of alleged torture of a suspect detained at Guantanamo Bay ("MP demands truth on UK torture claim", and Leader, The Herald, February 5).
David Miliband, the Foreign Secretary, has commented at some length (and with obvious discomfort) on the "intelligence relationship" and the "real risk" posed by the disclosure of terror-related intelligence in the public arena. This is not a new ploy but one being increasingly used by western politicians to hide embarrassing and unpalatable truths.
As a member of UK Families Flight 103 (the British Lockerbie victims families support group) I attended all but 12 days of the 10-month Lockerbie trial in Zeist and the subsequent first appeal. More recently, during the initial stages of the second appeal of Abdelbaset Ali Mohmed al Megrahi, allegedly "significant information" which, in the submission of the Scottish Criminal Case Review Commission could significantly affect the verdict has been deliberately withheld from the defence and thereby the public by virtue of the fact that (being the subject of a Public Interest Immunity Certificate signed by Mr Miliband) it may not be revealed in open court because it "might jeopardise UK security".
The main guarantees of justice in both England and Scotland are (a) the independence of the judiciary to be free and unrestrained by "political" inducements, threats or considerations and (b) a free press allowed to report and comment on what is said within the court confines.
So, we currently have two cases (in England and Scotland) where the full and impartial administration of justice is being actively obstructed and inhibited by political considerations said to be on the basis of national security. The European Convention on Human Rights requires that any accused should enjoy "equality of arms" and both English and Scottish law require that "justice shall be done and be seen to be done". That all now seems to be subject to any dubious and unexplorable claim that it is "not in the interests of national security"
In the first century the satirist Juvenal asked: "Who will guard the guards themselves?" Now we find that in two separate jurisdictions the Foreign Secretary and person or persons unknown are trying to obstruct or inhibit the fair and impartial conduct of two very major cases.
When is truth and justice going to become more important than vested geopolitical interests?
The Herald is to be congratulated on its excellent coverage of the comments made in London by Their Lordships Thomas and Lloyd Jones in their written ruling concerning "threats" to "national security" were they to publish a summary of alleged torture of a suspect detained at Guantanamo Bay ("MP demands truth on UK torture claim", and Leader, The Herald, February 5).
David Miliband, the Foreign Secretary, has commented at some length (and with obvious discomfort) on the "intelligence relationship" and the "real risk" posed by the disclosure of terror-related intelligence in the public arena. This is not a new ploy but one being increasingly used by western politicians to hide embarrassing and unpalatable truths.
As a member of UK Families Flight 103 (the British Lockerbie victims families support group) I attended all but 12 days of the 10-month Lockerbie trial in Zeist and the subsequent first appeal. More recently, during the initial stages of the second appeal of Abdelbaset Ali Mohmed al Megrahi, allegedly "significant information" which, in the submission of the Scottish Criminal Case Review Commission could significantly affect the verdict has been deliberately withheld from the defence and thereby the public by virtue of the fact that (being the subject of a Public Interest Immunity Certificate signed by Mr Miliband) it may not be revealed in open court because it "might jeopardise UK security".
The main guarantees of justice in both England and Scotland are (a) the independence of the judiciary to be free and unrestrained by "political" inducements, threats or considerations and (b) a free press allowed to report and comment on what is said within the court confines.
So, we currently have two cases (in England and Scotland) where the full and impartial administration of justice is being actively obstructed and inhibited by political considerations said to be on the basis of national security. The European Convention on Human Rights requires that any accused should enjoy "equality of arms" and both English and Scottish law require that "justice shall be done and be seen to be done". That all now seems to be subject to any dubious and unexplorable claim that it is "not in the interests of national security"
In the first century the satirist Juvenal asked: "Who will guard the guards themselves?" Now we find that in two separate jurisdictions the Foreign Secretary and person or persons unknown are trying to obstruct or inhibit the fair and impartial conduct of two very major cases.
When is truth and justice going to become more important than vested geopolitical interests?
Tuesday 2 September 2008
Foreign Secretary's response to Professor Köchler
In July Professor Hans Köchler, appointed by the UN Secretary-General as an observer at the Lockerbie trial, wrote a letter to the UK Foreign Secretary about (a) an error on the Foreign Office's website about the Lockerbie trial and (b) about the Foreign Secretary's assertion of public interest immunity in respect of certain documents, the failure to supply which to the defence formed one of the grounds on which the Scottish Criminal Cases Review Commission held that Megrahi's conviction might have amounted to a miscarriage of justice. The Foreign Secretary has now replied to Professor Köchler, whose press release reads as follows:
'Vienna, 1 September 2008/P/RE/20260c-is
'In a letter dated 27 August 2008, the Foreign & Commonwealth Office of the United Kingdom has informed Dr. Hans Koechler, an international observer of the Lockerbie trial appointed by the United Nations, that an erroneous entry about the Lockerbie verdict on the Office's country profile page on Libya has now been corrected. The Foreign Office's web site had wrongly reported that the verdict on the second Libyan suspect in the Lockerbie case, Al Amin Khalifa Fhimah, was "not proven." The information has now been corrected to "not guilty." This is important because one of the main reasons for Dr. Koechler's criticism of the Lockerbie verdict had been its being inconsistent. (While the rationale of the indictment was based on the two Libyan nationals' having conspired together to get a piece of baggage containing a bomb loaded on a plane in Malta, the verdict had declared the first suspect, Mr. Abdelbasset Ali Mohmed Al Megrahi, "guilty" and the second suspect "not guilty" - both of which determinations require proof "beyond a reasonable doubt.")
'On 21 July 2008 Dr. Hans Koechler had alerted David Miliband about the misleading entry and had also expressed his concerns about the public interest immunity (PII) certificate issued earlier by the Foreign Secretary in connection with certain "sensitive" material that has been withheld from the Defence in the Lockerbie case.
'In the above mentioned letter, the Foreign & Commonwealth Office has reiterated the Foreign Secretary's position that release of the material in question "would do real and lasting damage to the UK's relations with other states and the UK's national security." At the same time, the Foreign Office has acknowledged vis-Ã -vis Dr. Koechler that: "Ultimately, it will be for the Court to decide whether the material should be disclosed, not the Foreign Secretary." In the letter, the Foreign Office furthermore asserted the Scottish Court's being bound by the European Human Rights Convention: "Under the Human Rights Act 1998 the Court has a duty to act in compliance with Convention rights in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial."
'In a statement issued today, Dr. Koechler said that it is now up to the Scottish judges to assert the independence of the Scottish judiciary and ensure that the conditions for a fair trial (second appeal) are scrupulously met (which implies disclosure to the Defence of all evidence that is in the possession of the Prosecution). There is absolutely no doubt that in a country where the rule of law prevails a fair trial is ex definitione in the public interest. Dr. Koechler expressed the hope that the final decision on the disclosure of the "sensitive" material will not be delayed further. The new appeal cannot go ahead without this step.
'Dr. Hans Koechler will visit Scotland next week for discussions on the Lockerbie case.'
[Note by RB: Professor Köchler is mistaken when he says that the trial court's finding of "not guilty" in respect of the co-accused, Lamin Fhimah, required proof beyond a reasonable doubt. For acquittal, whether by a verdict of not guilty or one of not proven, all that is required is that the court is not satisfied that the Crown has proved the accused's guilt beyond reasonable doubt. The court is certainly not required to be satisfied (beyond reasonable doubt or by any other measure) that he is innocent.]
'Vienna, 1 September 2008/P/RE/20260c-is
'In a letter dated 27 August 2008, the Foreign & Commonwealth Office of the United Kingdom has informed Dr. Hans Koechler, an international observer of the Lockerbie trial appointed by the United Nations, that an erroneous entry about the Lockerbie verdict on the Office's country profile page on Libya has now been corrected. The Foreign Office's web site had wrongly reported that the verdict on the second Libyan suspect in the Lockerbie case, Al Amin Khalifa Fhimah, was "not proven." The information has now been corrected to "not guilty." This is important because one of the main reasons for Dr. Koechler's criticism of the Lockerbie verdict had been its being inconsistent. (While the rationale of the indictment was based on the two Libyan nationals' having conspired together to get a piece of baggage containing a bomb loaded on a plane in Malta, the verdict had declared the first suspect, Mr. Abdelbasset Ali Mohmed Al Megrahi, "guilty" and the second suspect "not guilty" - both of which determinations require proof "beyond a reasonable doubt.")
'On 21 July 2008 Dr. Hans Koechler had alerted David Miliband about the misleading entry and had also expressed his concerns about the public interest immunity (PII) certificate issued earlier by the Foreign Secretary in connection with certain "sensitive" material that has been withheld from the Defence in the Lockerbie case.
'In the above mentioned letter, the Foreign & Commonwealth Office has reiterated the Foreign Secretary's position that release of the material in question "would do real and lasting damage to the UK's relations with other states and the UK's national security." At the same time, the Foreign Office has acknowledged vis-Ã -vis Dr. Koechler that: "Ultimately, it will be for the Court to decide whether the material should be disclosed, not the Foreign Secretary." In the letter, the Foreign Office furthermore asserted the Scottish Court's being bound by the European Human Rights Convention: "Under the Human Rights Act 1998 the Court has a duty to act in compliance with Convention rights in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial."
'In a statement issued today, Dr. Koechler said that it is now up to the Scottish judges to assert the independence of the Scottish judiciary and ensure that the conditions for a fair trial (second appeal) are scrupulously met (which implies disclosure to the Defence of all evidence that is in the possession of the Prosecution). There is absolutely no doubt that in a country where the rule of law prevails a fair trial is ex definitione in the public interest. Dr. Koechler expressed the hope that the final decision on the disclosure of the "sensitive" material will not be delayed further. The new appeal cannot go ahead without this step.
'Dr. Hans Koechler will visit Scotland next week for discussions on the Lockerbie case.'
[Note by RB: Professor Köchler is mistaken when he says that the trial court's finding of "not guilty" in respect of the co-accused, Lamin Fhimah, required proof beyond a reasonable doubt. For acquittal, whether by a verdict of not guilty or one of not proven, all that is required is that the court is not satisfied that the Crown has proved the accused's guilt beyond reasonable doubt. The court is certainly not required to be satisfied (beyond reasonable doubt or by any other measure) that he is innocent.]
Wednesday 23 July 2008
Letter from Professor Köchler to Foreign Secretary
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"
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"
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.'
Tuesday 3 June 2008
Response to Dr Swire's letter
The Herald today publishes a letter from Christopher Frew in response to the letter from Dr Jim Swire published yesterday. It reads:
"Further to Dr Jim Swire's detailed and dignified letter (June 2) on the Lockerbie appeal, there is one aspect which I think invites re-examination.
That is the Public Interest Immunity (PII) certificate signed by the Foreign Secretary, David Miliband, who has said that disclosing the two confidential documents would cause 'real harm' to national security.
The role of PII certificates in court proceedings seems to straddle uneasily the pillars of the judicial and the political structures. May I suggest merely that we keep in mind two precedents: first, the scathing comments by the judiciary on the blocking of the BAE inquiry, where political expedience was allowed to take precedence over due process; and, secondly, the case of the Matrix Churchill prosecutions, where four ministers (Clarke, Rifkind, Garel-Jones for Hurd and Heseltine) signed PII certificates.
Michael Heseltine, to his credit, made his reservations clear, both to officials and in the wording particular to his PII. The whole affair can be studied in various books, notably Truth Is A Difficult Concept: Inside the Scott Inquiry, by Richard Norton Taylor (Guardian Books, 1995).
An illuminating quote as to the government view comes in that case from an assistant Treasury solicitor, Andrew Leithead: 'It is damaging to the public interest to have any decision-making process expanded.'
Let us hope the judges have a more enlightened view as to the public interest."
The comments from members of the public that follow the letter are also worth reading.
"Further to Dr Jim Swire's detailed and dignified letter (June 2) on the Lockerbie appeal, there is one aspect which I think invites re-examination.
That is the Public Interest Immunity (PII) certificate signed by the Foreign Secretary, David Miliband, who has said that disclosing the two confidential documents would cause 'real harm' to national security.
The role of PII certificates in court proceedings seems to straddle uneasily the pillars of the judicial and the political structures. May I suggest merely that we keep in mind two precedents: first, the scathing comments by the judiciary on the blocking of the BAE inquiry, where political expedience was allowed to take precedence over due process; and, secondly, the case of the Matrix Churchill prosecutions, where four ministers (Clarke, Rifkind, Garel-Jones for Hurd and Heseltine) signed PII certificates.
Michael Heseltine, to his credit, made his reservations clear, both to officials and in the wording particular to his PII. The whole affair can be studied in various books, notably Truth Is A Difficult Concept: Inside the Scott Inquiry, by Richard Norton Taylor (Guardian Books, 1995).
An illuminating quote as to the government view comes in that case from an assistant Treasury solicitor, Andrew Leithead: 'It is damaging to the public interest to have any decision-making process expanded.'
Let us hope the judges have a more enlightened view as to the public interest."
The comments from members of the public that follow the letter are also worth reading.
Monday 24 March 2008
Dr Swire's article in The Scotsman
I am grateful to Dr Jim Swire for sending me the full text of the article that appeared in The Scotsman on 14 March (see post on that date on this blog). It reads as follows (the version in The Scotsman was slightly edited):
"The issues here are tied into the development of the Scottish devolution process, they involve a great deal more than the sanctity of Mr Megrahi's (described by your headline as 'the Lockerbie bomber') appeal process.
"As the Lockerbie case progressed, the prosecution found itself in possession in 1996 of material that Mr Miliband now claims cannot be divilged to the defence. This occurred originally, it is said, because at the time, Scotland's Lord Advocate was ex officio a member of the UK government.
"Mr Miliband has, as your article says, now taken out Public Interest Immunity certificates(PIIs) to 'protect' the documents from release to either the defence or the public.
"Since a basic tenet of Scottish criminal law is 'equality of arms' between the defence and prosecution in a criminal case, it is hard to see how anyone can contend in the present circumstances that the 2nd appeal could be considered fair. Specially since the SCCRC seemed to be including the contents of these documents (which they had also been shown) in their reasons for referring the case back.
"PII certificates, carry as their justification and title, the interests of 'the public'. What may be at stake here, unless a solution is found in the High Court, is the freedom of the Scottish criminal system to be, and to be seen to be, independent of political control from Whitehall.
"If that absolute independance of Scottish law were not to be decisively established, and soon, it would be a black day indeed for the scottish public, which presumably Mr Miliband also claims to serve.
"The citizen needs to have faith in the independence and fairness of his judicial system, which he might need to use to protect himself from injustice imposed by his own government, let alone that in Westminster: selective disclosure to the prosecution in so grave a criminal case cannot be right."
"The issues here are tied into the development of the Scottish devolution process, they involve a great deal more than the sanctity of Mr Megrahi's (described by your headline as 'the Lockerbie bomber') appeal process.
"As the Lockerbie case progressed, the prosecution found itself in possession in 1996 of material that Mr Miliband now claims cannot be divilged to the defence. This occurred originally, it is said, because at the time, Scotland's Lord Advocate was ex officio a member of the UK government.
"Mr Miliband has, as your article says, now taken out Public Interest Immunity certificates(PIIs) to 'protect' the documents from release to either the defence or the public.
"Since a basic tenet of Scottish criminal law is 'equality of arms' between the defence and prosecution in a criminal case, it is hard to see how anyone can contend in the present circumstances that the 2nd appeal could be considered fair. Specially since the SCCRC seemed to be including the contents of these documents (which they had also been shown) in their reasons for referring the case back.
"PII certificates, carry as their justification and title, the interests of 'the public'. What may be at stake here, unless a solution is found in the High Court, is the freedom of the Scottish criminal system to be, and to be seen to be, independent of political control from Whitehall.
"If that absolute independance of Scottish law were not to be decisively established, and soon, it would be a black day indeed for the scottish public, which presumably Mr Miliband also claims to serve.
"The citizen needs to have faith in the independence and fairness of his judicial system, which he might need to use to protect himself from injustice imposed by his own government, let alone that in Westminster: selective disclosure to the prosecution in so grave a criminal case cannot be right."
Friday 14 March 2008
Alternative take: Dr Jim Swire, father of Lockerbie victim Flora Swire
This is the title of an article in today's issue of The Scotsman. It starts:
"As the Lockerbie case progressed, the prosecution found itself in possession in 1996 of material that Mr [David] Miliband now claims cannot be divulged to the defence.
"This occurred originally, it is said, because at the time, Scotland's Lord Advocate was ex officio a member of the UK government.
"Mr Miliband has now taken out Public Interest Immunity certificates (PIIs) to 'protect' the documents from release to..."
The article is in the premium (ie pay to view) section of The Scotsman's website, and so I am not in a position to quote more of it or to summarize its contents since I resolutely refuse to pay for access to the newspaper (a) because I am a Scot and (b) because this once-great newspaper has in recent times declined disastrously.
The full article (if you are a subscriber) can be read here.
The readers' comments are of interest, even if you cannot access the full text of Dr Swire's article.
"As the Lockerbie case progressed, the prosecution found itself in possession in 1996 of material that Mr [David] Miliband now claims cannot be divulged to the defence.
"This occurred originally, it is said, because at the time, Scotland's Lord Advocate was ex officio a member of the UK government.
"Mr Miliband has now taken out Public Interest Immunity certificates (PIIs) to 'protect' the documents from release to..."
The article is in the premium (ie pay to view) section of The Scotsman's website, and so I am not in a position to quote more of it or to summarize its contents since I resolutely refuse to pay for access to the newspaper (a) because I am a Scot and (b) because this once-great newspaper has in recent times declined disastrously.
The full article (if you are a subscriber) can be read here.
The readers' comments are of interest, even if you cannot access the full text of Dr Swire's article.
Sunday 24 February 2008
Miliband has made Lockerbie appeal a mockery of justice
http://www.heraldscotland.com/default_content/12770332.Miliband_has_made_Lockerbie_appeal_a_mockery_of_justice/
The Sunday Herald also has an article on the same subject by John Bynorth. Its principal focus is the contrast between the Scottish Government’s volubility in criticizing the UK Government over the prisoner transfer issue and its silence when confronted by the UK Government’s attempt to interfere in Scottish criminal proceedings by denying the defence and the court access to a document whose disclosure an independent body (the SCCRC) has indicated is necessary for justice to be done. Tony Kelly (Abdelbaset Megrahi’s solicitor) is extensively quoted, as are Dr Jim Swire and myself. See
http://www.heraldscotland.com/default_content/12767528.Anger_over__apos_interference_apos__in_Lockerbie_appeal/
http://www.heraldscotland.com/default_content/12767528.Anger_over__apos_interference_apos__in_Lockerbie_appeal/
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