[This is the headline over a report by Lucy Adams in today's edition of The Herald outlining reactions to yesterday's revelations in the newspaper. It reads as follows:]
Revelations in The Herald the UK Government tried to suppress have fuelled calls for a public inquiry into the Lockerbie bombing.
Yesterday, we revealed a document the UK Government has blocked for more than 20 years, which has never been aired in public or shared with the courts, originally came from Jordan and indicates a Palestinian terrorist group was involved in the bombing that killed 270 people – which the UK Government has vehemently denied.
The UK Government went to considerable lengths to prevent details of the document – which casts further doubt on the safety of the conviction of Abdelbaset Ali Mohmed al Megrahi – being published by The Herald.
Dr Jim Swire, whose daughter Flora died in the atrocity, said: "No-one has been braver than The Herald in searching for the truth about Lockerbie. For this news to break now goes to the core of features of this case which have worried me for a long time. One is the professed ignorance of the UK Prime Minister and Scottish First Minister when they say they uphold the verdict of the trial and [will] not hold an inquiry.
"During the second appeal in Edinburgh, when the Advocate General spoke he said a Public Interest Immunity [PII] certificate had been granted by the then Foreign Secretary David Miliband. I knew then the establishment of the countries in which I live were opposing my right to know who really murdered my daughter and all those other people, and to know why their precious lives were not protected."
The document incriminates the Popular Front for the Liberation of Palestine – General Command (PFLP-GC) in the bombing. The PFLP-GC were the original suspects in the investigation into the atrocity. However, by 1991 police and prosecutors were entirely focused on Libya.
The UK Government arranged for the document to be covered by Public Interest Immunity on national security grounds.
Willie Rennie MSP, leader of the Scottish Liberal Democrats, said: "This adds further weight to calls for a Scottish public inquiry into the Lockerbie prosecution. Accusations of suppressing evidence and withholding important documents from those at the heart of the investigation cannot be swept under the carpet. The First Minister should order a Scottish public inquiry to ensure the integrity and fairness of the Scottish justice system is put beyond doubt."
It is thought the document could fatally undermine the case against Megrahi, who died of cancer last month. Tony Kelly, Megrahi's solicitor, said the fact the Appeal Court, defence team and Megrahi were never allowed access to it is a "tragedy".
"The publication of details of the document in yesterday's Herald – previously subject to a PII certificate signed by the Foreign Secretary in the course of the appeal proceedings – was the first inkling I had about the content and source of the document," he said. "What a great pity."
John Ashton, the author of Megrahi: You are my Jury, said yesterday: "Mr Megrahi spent 10 years in prison and went to his grave still bearing the weight of his conviction. If this, and all the other important evidence that we now know of, had been disclosed to his lawyers, he should have walked from court a free man and would have spent the last decade with his family. By resisting a public inquiry into the case, the Scottish Government is fuelling the biggest scandal of the country's post-devolution era."
Patrick Harvie MSP, Scottish Green Party co-convener, said: "The Herald's latest twist adds to the long-held doubts about Mr Megrahi's conviction. In its apparent attempt to prevent The Herald talking about this document, the Foreign Office refers to the UK's international relations being harmed. Surely the real risk is to our reputation for justice. A public inquiry would help address this sorry saga."
A Scottish Government spokesman said: "It is the case that the Crown Office wanted to provide this information to Mr Megrahi's legal team during the second appeal and made this clear to the court, but it could not be done because of the UK Government's Public Interest Immunity certificate.
"The issues being raised in relation to the conviction itself must be a matter for a court of law – Mr Megrahi was convicted in a court of law, his conviction was upheld on appeal, and that is the only appropriate place for his guilt or innocence to be determined. It remains open for relatives of Mr Megrahi or the relatives of the victims of the Lockerbie atrocity to ask the SCCRC (Scottish Criminal Cases Review Commission) to refer the case to the Appeal Court again on a posthumous basis."
Showing posts sorted by relevance for query "public interest immunity" miliband. Sort by date Show all posts
Showing posts sorted by relevance for query "public interest immunity" miliband. Sort by date Show all posts
Saturday 2 June 2012
Thursday 27 August 2020
Appeal court accepts Megrahi lawyers' submissions regarding scope of appeal
[What follows is the text of a press release issued today by Aamer Anwar & Co:]
On the 21st August the first procedural hearing in the posthumous appeal of Mr Al-Megrahi took place. The judges retired to give consideration to our grounds of appeal, to the extended grounds as well as an application for recovery of documents held by the UK Government.
The reputation of Scottish Law has suffered both at home and internationally because of widespread doubts about the conviction of Mr Al Megrahi. It is in the interests of justice and restoring confidence in our justice system that these doubts can be addressed, but the only place to determine whether a miscarriage of justice did occur is in our appeal court.
We claimed in court that the Crown failed to disclose CIA cables in respect of a key crown witness on the basis of an undertaking given to the United States Government.
We claimed that there was systemic failure to disclose documents to the defence and that the Lord Advocate acted in a way which was incompatible with Mr Al- Megrahi’s right to a fair trial.
It was disappointing that court was told that the Secretary of State for Foreign and Commonwealth Affairs- Dominic Raab MP, had lodged a further Public Interest Immunity Certificate on the 17th August, after it was last done in 2008 by David Miliband. We believe the UK Government is refusing to declassify documents that we believe may support our ground of appeal that there has been a miscarriage of justice.
The Government has claimed disclosure will cause ‘real harm’ to international relations and to the national security of the United Kingdom.
However, both the Megrahi family and many of the British families of victims supporting this appeal ask whose public interest and security is being protected, some 31 years after the bombing.
If the Government has nothing to hide, then it has nothing to fear from disclosing this material. We asked the Court for a specification for recovery of these classified documents and thus their disclosure.
The Judges the Lord Justice General, the Lord Justice Clerk, and Lord Menzies have now given consideration to our submissions as well as those of Crown Office and the Advocate General on behalf of the UK Government.
1. The court has authorised Ali Abdulbasit Ali Almaqrahi, the son of the deceased Abdelbaset Ali Mohamed Al Megrahi. to institute an appeal on behalf of his father.
2. Has allowed the appellant to found the appeal on additional grounds which did not relate to one or more of the reasons contained in the Statement of Reasons by the SCCRC for making the Reference.
3.It has allowed ground (1) of appeal to be argued – the ground of appeal in relation to “no reasonable jury” could have returned the verdict that the Court did.
4. It has allowed ground (2) of appeal ‘non-disclosure’ to be argued but also includes the Crown’s failure to disclose CIA Cables – as set out in Operation Sandwood.
5. Importantly it is continuing consideration of part of our appeal on the new Public Interest Immunity Certificate – that is the protectively marked documents which the UK Government maintain should remain ‘classified’ and the Court will now appoint special counsel for this purpose to represent the appellant.
6. The Special counsel will have clearance from the security services and is entitled to see the confidential information and will appear at a private hearing which we may not attend. He/she must not disclose any of the confidential information to our legal team, except—with the permission of the court, and where permission is given, in accordance with such conditions as the court may impose.
7. November 24th has been set as the date for the start of the appeal.
Today was an important milestone for the Megrahi family on the road to try to establish that the verdict against their father was a miscarriage of justice. There can never be a time limit on justice.
[RB: This is a very good outcome for the appellant. The court has not restricted the appeal to the (disappointingly narrow) grounds accepted by the Scottish Criminal Cases Review Commission. It has also not rejected out of hand the possible relevance of the documents in respect of which first David Miliband and now Dominic Raab have asserted public interest immunity on behalf of the UK Government. Unsurprisingly, however, it rejected proposed grounds of appeal based on the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the Crown”.]
On the 21st August the first procedural hearing in the posthumous appeal of Mr Al-Megrahi took place. The judges retired to give consideration to our grounds of appeal, to the extended grounds as well as an application for recovery of documents held by the UK Government.
The reputation of Scottish Law has suffered both at home and internationally because of widespread doubts about the conviction of Mr Al Megrahi. It is in the interests of justice and restoring confidence in our justice system that these doubts can be addressed, but the only place to determine whether a miscarriage of justice did occur is in our appeal court.
We claimed in court that the Crown failed to disclose CIA cables in respect of a key crown witness on the basis of an undertaking given to the United States Government.
We claimed that there was systemic failure to disclose documents to the defence and that the Lord Advocate acted in a way which was incompatible with Mr Al- Megrahi’s right to a fair trial.
It was disappointing that court was told that the Secretary of State for Foreign and Commonwealth Affairs- Dominic Raab MP, had lodged a further Public Interest Immunity Certificate on the 17th August, after it was last done in 2008 by David Miliband. We believe the UK Government is refusing to declassify documents that we believe may support our ground of appeal that there has been a miscarriage of justice.
The Government has claimed disclosure will cause ‘real harm’ to international relations and to the national security of the United Kingdom.
However, both the Megrahi family and many of the British families of victims supporting this appeal ask whose public interest and security is being protected, some 31 years after the bombing.
If the Government has nothing to hide, then it has nothing to fear from disclosing this material. We asked the Court for a specification for recovery of these classified documents and thus their disclosure.
The Judges the Lord Justice General, the Lord Justice Clerk, and Lord Menzies have now given consideration to our submissions as well as those of Crown Office and the Advocate General on behalf of the UK Government.
1. The court has authorised Ali Abdulbasit Ali Almaqrahi, the son of the deceased Abdelbaset Ali Mohamed Al Megrahi. to institute an appeal on behalf of his father.
2. Has allowed the appellant to found the appeal on additional grounds which did not relate to one or more of the reasons contained in the Statement of Reasons by the SCCRC for making the Reference.
3.It has allowed ground (1) of appeal to be argued – the ground of appeal in relation to “no reasonable jury” could have returned the verdict that the Court did.
4. It has allowed ground (2) of appeal ‘non-disclosure’ to be argued but also includes the Crown’s failure to disclose CIA Cables – as set out in Operation Sandwood.
5. Importantly it is continuing consideration of part of our appeal on the new Public Interest Immunity Certificate – that is the protectively marked documents which the UK Government maintain should remain ‘classified’ and the Court will now appoint special counsel for this purpose to represent the appellant.
6. The Special counsel will have clearance from the security services and is entitled to see the confidential information and will appear at a private hearing which we may not attend. He/she must not disclose any of the confidential information to our legal team, except—with the permission of the court, and where permission is given, in accordance with such conditions as the court may impose.
7. November 24th has been set as the date for the start of the appeal.
Today was an important milestone for the Megrahi family on the road to try to establish that the verdict against their father was a miscarriage of justice. There can never be a time limit on justice.
[RB: This is a very good outcome for the appellant. The court has not restricted the appeal to the (disappointingly narrow) grounds accepted by the Scottish Criminal Cases Review Commission. It has also not rejected out of hand the possible relevance of the documents in respect of which first David Miliband and now Dominic Raab have asserted public interest immunity on behalf of the UK Government. Unsurprisingly, however, it rejected proposed grounds of appeal based on the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the Crown”.]
Wednesday 27 May 2015
National security and security-vetted advocates
A plea has been made to Lockerbie bombing appeal judges to hold a hearing to discuss a confidential document behind closed doors.
The Advocate General has suggested a security-vetted advocate could represent Abdelbasset Ali al-Megrahi in place of his usual legal team.
The UK Government claims releasing the document would harm national security.
However, Al Megrahi's lawyers have said it could assist his appeal against his conviction for the 1988 atrocity.
The Advocate General - who represents the UK Government - has lodged a public interest immunity plea to keep the document secret.
A three-day procedural hearing at the Appeal Court in Edinburgh is now meeting to decide how to address the issue.
The court previously heard Foreign Secretary David Miliband had signed the public interest immunity certificate.
Judges were told he believes releasing the secret document would cause "real harm" to the national interest.
Advocate General Lord Davidson [of Glen Clova] QC told the court there should be a public interest immunity hearing, and he suggested judges should have access to the document in advance of that hearing.
He said a special representative, if appointed, would be able to represent Al Megrahi's interests.
The Libyan's defence team have not yet given their views in the hearing but Lord Davidson said it appeared that they contest the use of a special representative in this case.
Al Megrahi was not present at the hearing in Edinburgh.
[RB: Incidentally, Prime Minister David Cameron has not yet appointed an Advocate General for Scotland in his new administration. The strong rumour is that it is to be Richard Keen QC who was senior counsel for Lamin Fhimah at the Lockerbie trial, subsequently Dean of the Faculty of Advocates and is currently chairman of the Scottish Conservative Party.]
Friday 27 May 2016
Lockerbie documents security plea
[This is the headline over a report published on the BBC News website on this date in 2008. It reads as follows:]
A plea has been made to Lockerbie bombing appeal judges to hold a hearing to discuss a confidential document behind closed doors.
The Advocate General has suggested a security-vetted advocate could represent Abdelbasset Ali al-Megrahi in place of his usual legal team.
The UK Government claims releasing the document would harm national security.
However, Al Megrahi's lawyers have said it could assist his appeal against his conviction for the 1988 atrocity.
The Advocate General - who represents the UK Government - has lodged a public interest immunity plea to keep the document secret.
A three-day procedural hearing at the Appeal Court in Edinburgh is now meeting to decide how to address the issue.
The court previously heard Foreign Secretary David Miliband had signed the public interest immunity certificate.
Judges were told he believes releasing the secret document would cause "real harm" to the national interest.
Advocate General Lord Davidson QC told the court there should be a public interest immunity hearing, and he suggested judges should have access to the document in advance of that hearing.
He said a special representative, if appointed, would be able to represent Al Megrahi's interests.
The Libyan's defence team have not yet given their views in the hearing but Lord Davidson said it appeared that they contest the use of a special representative in this case.
Al Megrahi was not present at the hearing in Edinburgh.
[RB: This is the document referred to in Kenny MacAskill’s book and in respect of which it has been suggested that Mr MacAskill may have contravened the Official Secrets Act.]
Monday 15 February 2016
Public Interest Immunity and the UK Foreign Office
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 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”.
Wednesday 19 August 2020
Procedural hearing in the Megrahi family appeal
[What follows is excerpted from a report published today on the website of The Herald:]
Lawyers representing the family of Abdelbaset al-Megrahi, the Libyan man jailed for the 1988 Lockerbie bombing, are to begin a fight against his conviction on Friday - with a call for better transparency.
Megrahi, who died in 2012, was the only person convicted for the bombing which killed 243 passengers and 16 crew on Pan Am Flight 103 as it travelled from London to New York. Eleven people on the ground in Lockerbie also lost their lives in what was the biggest terrorist attack on British soil. (...)
Now an appeal is being started after a Scottish commission ruled a miscarriage of justice may have occurred.
On Friday a procedural hearing in an appeal against conviction will start presided over by Scotland’s most senior judge the Lord President – Lord Carloway along with the Lord Justice Clerk-Lady Dorian and Lord Menzies.
The hearing will take place by means of WEBEX, a video conferencing online application.
The judges will appear on screen and appeal legal team will appear from a facility in Glasgow.
Appeal lawyer Aamer Anwar (below) on behalf of the family of the late Al-Megrahi said they need to move the court to consider granting authority to see certain "important" documents "over which public interest immunity is asserted".
He said: "Our argument is that public interest immunity certificate is not everlasting, it has been 31 years since the bombing and the UK Government represented by the Advocate General should justify why it is still asserting PII and denying full disclosure of this information to our team."
He added: "We are disappointed that the Scottish Government, the UK Government, the United States and other foreign governments have refused consent to disclose matters which at this time remain redacted in papers disclosed to us."
Mr Anwar has said the grounds for the family’s appeal were “substantial”. (...)
The Scottish Criminal cases review commission in March issued a 419-page decision saying that “further information” provided grounds for appeal.
The commission cited an “unreasonable verdict” and “non-disclosure” in the handling of the case. (...)
Mr Anwar's office says that it is widely claimed that the Lockerbie bombing was ordered by Iran and carried out by a Syrian based terrorist group in retaliation for a US Navy strike on an Iranian Airbus six months earlier, in which 290 people died.
Mr Anwar said: "The reputation of the Scottish criminal justice system has suffered badly both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi; he was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.
"A reversal of the verdict would have meant that the governments of the United States and the United Kingdom stand accused of having lived a monumental lie for 31 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit."
He said the Appeal Court in a judgment in July 2015, ruled that the relatives of Lockerbie bombing victims would not be allowed to pursue an appeal on behalf of the only man convicted of the crime.
The families did not give up and in July 2017 a further application was lodged with the Commission on behalf of the Al-Megrahi family.
"There can be never be a time limit on justice, the families who support this appeal have never given up their search for the truth," said Mr Anwar. "On March 11th 2020, the Scottish Criminal Cases Review Commission decided that Mr Megrahi’s case should be referred to the High Court for the determination.
Magrahi's legal team submitted "serious allegations" of the failure of the Crown to disclose evidence which Mr Anwar's team say have been key to the defence and "interfered with the right to a fair trial".
Mr Anwar's team said the Crown "failed in its duty of disclosure" of relevant material to Mr Al Megrahi’s defence team prior to trial.
"This prejudiced the defence in their preparation and conduct of the trial to such an extent that the Commission have concluded that this may have given rise to a miscarriage of justice," they said.
[RB: In a blogpost on 13 August 2020 I speculated that the document being sought was the one in respect of which Foreign Secretary David Miliband had previously granted a public interest immunity certificate. It appears that I was right.]
Lawyers representing the family of Abdelbaset al-Megrahi, the Libyan man jailed for the 1988 Lockerbie bombing, are to begin a fight against his conviction on Friday - with a call for better transparency.
Megrahi, who died in 2012, was the only person convicted for the bombing which killed 243 passengers and 16 crew on Pan Am Flight 103 as it travelled from London to New York. Eleven people on the ground in Lockerbie also lost their lives in what was the biggest terrorist attack on British soil. (...)
Now an appeal is being started after a Scottish commission ruled a miscarriage of justice may have occurred.
On Friday a procedural hearing in an appeal against conviction will start presided over by Scotland’s most senior judge the Lord President – Lord Carloway along with the Lord Justice Clerk-Lady Dorian and Lord Menzies.
The hearing will take place by means of WEBEX, a video conferencing online application.
The judges will appear on screen and appeal legal team will appear from a facility in Glasgow.
Appeal lawyer Aamer Anwar (below) on behalf of the family of the late Al-Megrahi said they need to move the court to consider granting authority to see certain "important" documents "over which public interest immunity is asserted".
He said: "Our argument is that public interest immunity certificate is not everlasting, it has been 31 years since the bombing and the UK Government represented by the Advocate General should justify why it is still asserting PII and denying full disclosure of this information to our team."
He added: "We are disappointed that the Scottish Government, the UK Government, the United States and other foreign governments have refused consent to disclose matters which at this time remain redacted in papers disclosed to us."
Mr Anwar has said the grounds for the family’s appeal were “substantial”. (...)
The Scottish Criminal cases review commission in March issued a 419-page decision saying that “further information” provided grounds for appeal.
The commission cited an “unreasonable verdict” and “non-disclosure” in the handling of the case. (...)
Mr Anwar's office says that it is widely claimed that the Lockerbie bombing was ordered by Iran and carried out by a Syrian based terrorist group in retaliation for a US Navy strike on an Iranian Airbus six months earlier, in which 290 people died.
Mr Anwar said: "The reputation of the Scottish criminal justice system has suffered badly both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi; he was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.
"A reversal of the verdict would have meant that the governments of the United States and the United Kingdom stand accused of having lived a monumental lie for 31 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit."
He said the Appeal Court in a judgment in July 2015, ruled that the relatives of Lockerbie bombing victims would not be allowed to pursue an appeal on behalf of the only man convicted of the crime.
The families did not give up and in July 2017 a further application was lodged with the Commission on behalf of the Al-Megrahi family.
"There can be never be a time limit on justice, the families who support this appeal have never given up their search for the truth," said Mr Anwar. "On March 11th 2020, the Scottish Criminal Cases Review Commission decided that Mr Megrahi’s case should be referred to the High Court for the determination.
Magrahi's legal team submitted "serious allegations" of the failure of the Crown to disclose evidence which Mr Anwar's team say have been key to the defence and "interfered with the right to a fair trial".
Mr Anwar's team said the Crown "failed in its duty of disclosure" of relevant material to Mr Al Megrahi’s defence team prior to trial.
"This prejudiced the defence in their preparation and conduct of the trial to such an extent that the Commission have concluded that this may have given rise to a miscarriage of justice," they said.
[RB: In a blogpost on 13 August 2020 I speculated that the document being sought was the one in respect of which Foreign Secretary David Miliband had previously granted a public interest immunity certificate. It appears that I was right.]
Thursday 11 April 2019
Reaction to sealing of 1991 Lockerbie telegram to John Major
[A letter from Dr Jim Swire is published in today's edition of The Times. It reads as follows:]
As the father of Flora Swire, a victim of the 1988 Lockerbie disaster, may I congratulate The Times on its brave attempt to obtain the contents of a telegram sent to John Major as prime minister from an unnamed overseas government (“Lockerbie telegram must remain sealed until 2032”, Scotland edition, Apr 10). It has long been apparent that there are many fatal flaws in the evidence brought to the Zeist court in 2000-01, and used to convict the Libyan Abdul Baset Ali al-Megrahi of being a key perpetrator.
Lockerbie remains the worst single terrorist outrage to occur in the UK since the Second World War, yet there has been no inquiry. Those who value the independence of judicial systems from political interference must, like us relatives, be concerned about the reluctance of successive UK governments to allow relevant matters to become public. By 2032 I will be 96, and probably leaning on a cromach to listen.
[RB: As submitted, the letter read as follows:]
As the father of Flora Swire, a victim the 1988 Lockerbie disaster may I congratulate The Times on its brave attempt to obtain the contents of a telegram sent to Sir John Major as PM, from an overseas kingdom.
It has long been apparent that there are many fatal flaws in the evidence brought to the Zeist court in 2000/1, and used to convict the Libyan, Baset Al-Megrahi of being a key perpetrator.
During the second appeal by Mr Megrahi against conviction, Scotland's Advocate-General of the day was sent post-haste to confer with then UK Foreign Secretary David Miliband who was persuaded immediately to issue a PII certificate to protect a communication received by Sir John from access by the public or the defence team.
When a distinguished Scottish newspaper, having discovered the contents was about to publish, it was threatened with draconian measures to disrupt its editions
This communication to Sir John had been in the possession of the Megrahi prosecution team for years, but denied to Megrahi's defence. Megrahi's second appeal was on the cusp of reaching parts of the evidence in which it might have been highly relevant.
At that point Mr Megrahi was offered compassionate release and his appeal was stopped.
Lockerbie remains the worst single terrorist outrage to occur in the UK since WWII, yet there has been no inquiry.
Those who value the independence of judicial systems from political interference must, like us relatives, be concerned about the reluctance of successive UK Governments to allow relevant matters to become public for so long.
By 2032 I will be 94 years old, and probably leaning on a cromach to listen.
[RB: An article published in today's edition of The National reads in part:]
A decision to keep under wraps a telegram sent to them prime minister John Major three years after the Lockerbie bombing “adds insult to injury” for the families and friends of those who died in the atrocity, according to a campaigner who believes in the innocence of the late Abdelbaset al-Megrahi, the only person convicted for it.
The Cabinet Office claimed the contents of the telegram to Major in 1991 were against the national interest – despite the fact that former Scottish justice secretary Kenny MacAskill put them into the public domain almost three years ago in his book The Lockerbie Bombing: The Search for Justice.
Officials refused a Freedom of Information (FoI) request from The Times newspaper, which means the document will be kept secret at the UK National Archives, at Kew in London, until at least 2032.
Their response read: “In this instance, we believe the release of the information received in confidence would harm UK relations with the country which provided the information.
“This would be detrimental to the operation of government and would not be in the UK’s interest.
“In light of the potential harm to UK relations with the country concerned, and UK interests there, it is judged that release of the material would not be in the public interest.”
The material is covered by a controversial public interest immunity (PII) certificate, which was signed in 2008 by then foreign secretary David Miliband.
It was identified as important to the defence of Megrahi by the Scottish Criminal Cases Review Commission (SCCRC), which granted his appeal after the Crown failed to disclose details at his 2002 trial.
In his book, MacAskill said the telegram to Major, above, was from the late King Hussein of Jordan and blamed the bombing on the Popular Front for the Liberation of Palestine – General Command (PFLP-GC), the group originally suspected of carrying it out.
Records at the National Archives confirm that Major received a telegram relating to the bombing on November 15, 1991 – the day after the British and US governments announced they were bringing charges against Megrahi and his co-accused Lamin Khalifah Fhimah.
Iain McKie, from the Justice for Megrahi (JfM) group, which is campaigning to clear the Libyan’s name, said: “It beggars belief that the UK government, after 30 years of widespread and well-founded doubts about various aspects of the Lockerbie investigation and trial, continues in its efforts to hide the truth about the tragedy.
“That it should claim to be protecting the public interest only adds insult to injury for the family and friends of the 270 souls who perished.
“Why would they claim it was in the public interest in keeping this material quiet until 2032?
“In some ways it heightens – not lessens – suspicion.
“Here in Scotland we’re awaiting the SCCRC decision on the submission from the Megrahi family – and there is a big story to be told internationally.”
MacAskill told The National there was “no good reason” to keep the contents secret, given that Hussein is dead. He said: “It can hardly exacerbate the situation in Jordan.
“Besides, the Crown has always been happy for it to be released as they think it just adds to the conspiracy theories when there’s a good explanation about it and it doesn’t exculpate Libya or Megrahi.” (...) [RB: The failure to disclose the document to Megrahi's legal team before or during the Lockerbie trial is one of the six reasons given by the SCCRC for finding that Megrahi's conviction might have amounted to a miscarriage of justice. It is accordingly difficult to accept the Crown's contention, as reported here by Mr MacAskill, that it does not exculpate Libya or Megrahi, or at least seriously undermine the case against them.]
Professor Robert Black QC, the architect of the Lockerbie trial in the Netherlands, who believes there was a miscarriage of justice, said: “It is extremely difficult to understand how a document dating from Nov-ember 15, 1991, could still in 2019 adversely affect the national interests of the UK or its relations with the country of origin.”
“Much more likely is that the contents of the documents would embarrass the UK by showing just how tenuous is the case for Libyan responsibility for the Lockerbie tragedy.”
As the father of Flora Swire, a victim of the 1988 Lockerbie disaster, may I congratulate The Times on its brave attempt to obtain the contents of a telegram sent to John Major as prime minister from an unnamed overseas government (“Lockerbie telegram must remain sealed until 2032”, Scotland edition, Apr 10). It has long been apparent that there are many fatal flaws in the evidence brought to the Zeist court in 2000-01, and used to convict the Libyan Abdul Baset Ali al-Megrahi of being a key perpetrator.
Lockerbie remains the worst single terrorist outrage to occur in the UK since the Second World War, yet there has been no inquiry. Those who value the independence of judicial systems from political interference must, like us relatives, be concerned about the reluctance of successive UK governments to allow relevant matters to become public. By 2032 I will be 96, and probably leaning on a cromach to listen.
[RB: As submitted, the letter read as follows:]
As the father of Flora Swire, a victim the 1988 Lockerbie disaster may I congratulate The Times on its brave attempt to obtain the contents of a telegram sent to Sir John Major as PM, from an overseas kingdom.
It has long been apparent that there are many fatal flaws in the evidence brought to the Zeist court in 2000/1, and used to convict the Libyan, Baset Al-Megrahi of being a key perpetrator.
During the second appeal by Mr Megrahi against conviction, Scotland's Advocate-General of the day was sent post-haste to confer with then UK Foreign Secretary David Miliband who was persuaded immediately to issue a PII certificate to protect a communication received by Sir John from access by the public or the defence team.
When a distinguished Scottish newspaper, having discovered the contents was about to publish, it was threatened with draconian measures to disrupt its editions
This communication to Sir John had been in the possession of the Megrahi prosecution team for years, but denied to Megrahi's defence. Megrahi's second appeal was on the cusp of reaching parts of the evidence in which it might have been highly relevant.
At that point Mr Megrahi was offered compassionate release and his appeal was stopped.
Lockerbie remains the worst single terrorist outrage to occur in the UK since WWII, yet there has been no inquiry.
Those who value the independence of judicial systems from political interference must, like us relatives, be concerned about the reluctance of successive UK Governments to allow relevant matters to become public for so long.
By 2032 I will be 94 years old, and probably leaning on a cromach to listen.
[RB: An article published in today's edition of The National reads in part:]
A decision to keep under wraps a telegram sent to them prime minister John Major three years after the Lockerbie bombing “adds insult to injury” for the families and friends of those who died in the atrocity, according to a campaigner who believes in the innocence of the late Abdelbaset al-Megrahi, the only person convicted for it.
The Cabinet Office claimed the contents of the telegram to Major in 1991 were against the national interest – despite the fact that former Scottish justice secretary Kenny MacAskill put them into the public domain almost three years ago in his book The Lockerbie Bombing: The Search for Justice.
Officials refused a Freedom of Information (FoI) request from The Times newspaper, which means the document will be kept secret at the UK National Archives, at Kew in London, until at least 2032.
Their response read: “In this instance, we believe the release of the information received in confidence would harm UK relations with the country which provided the information.
“This would be detrimental to the operation of government and would not be in the UK’s interest.
“In light of the potential harm to UK relations with the country concerned, and UK interests there, it is judged that release of the material would not be in the public interest.”
The material is covered by a controversial public interest immunity (PII) certificate, which was signed in 2008 by then foreign secretary David Miliband.
It was identified as important to the defence of Megrahi by the Scottish Criminal Cases Review Commission (SCCRC), which granted his appeal after the Crown failed to disclose details at his 2002 trial.
In his book, MacAskill said the telegram to Major, above, was from the late King Hussein of Jordan and blamed the bombing on the Popular Front for the Liberation of Palestine – General Command (PFLP-GC), the group originally suspected of carrying it out.
Records at the National Archives confirm that Major received a telegram relating to the bombing on November 15, 1991 – the day after the British and US governments announced they were bringing charges against Megrahi and his co-accused Lamin Khalifah Fhimah.
Iain McKie, from the Justice for Megrahi (JfM) group, which is campaigning to clear the Libyan’s name, said: “It beggars belief that the UK government, after 30 years of widespread and well-founded doubts about various aspects of the Lockerbie investigation and trial, continues in its efforts to hide the truth about the tragedy.
“That it should claim to be protecting the public interest only adds insult to injury for the family and friends of the 270 souls who perished.
“Why would they claim it was in the public interest in keeping this material quiet until 2032?
“In some ways it heightens – not lessens – suspicion.
“Here in Scotland we’re awaiting the SCCRC decision on the submission from the Megrahi family – and there is a big story to be told internationally.”
MacAskill told The National there was “no good reason” to keep the contents secret, given that Hussein is dead. He said: “It can hardly exacerbate the situation in Jordan.
“Besides, the Crown has always been happy for it to be released as they think it just adds to the conspiracy theories when there’s a good explanation about it and it doesn’t exculpate Libya or Megrahi.” (...) [RB: The failure to disclose the document to Megrahi's legal team before or during the Lockerbie trial is one of the six reasons given by the SCCRC for finding that Megrahi's conviction might have amounted to a miscarriage of justice. It is accordingly difficult to accept the Crown's contention, as reported here by Mr MacAskill, that it does not exculpate Libya or Megrahi, or at least seriously undermine the case against them.]
Professor Robert Black QC, the architect of the Lockerbie trial in the Netherlands, who believes there was a miscarriage of justice, said: “It is extremely difficult to understand how a document dating from Nov-ember 15, 1991, could still in 2019 adversely affect the national interests of the UK or its relations with the country of origin.”
“Much more likely is that the contents of the documents would embarrass the UK by showing just how tenuous is the case for Libyan responsibility for the Lockerbie tragedy.”
Friday 12 April 2019
Lockerbie case: campaigner and lawyer hit out at 'withheld' evidence
[This is the headline over a report in today's edition of The National. It reads as follows:]
A prominent figure in the fight to prove the innocence of Libyan Abdelbaset al-Megrahi for the Lockerbie bombing has said keeping the contents of a 1991 telegram to then prime minister John Major secret until at least 2032 is not in Scotland’s – or any other nation’s – public interest.
Dr Jim Swire was speaking to The National after the claim about the document resurfaced. Its contents have been in the public domain for more than three years.
It was said to have been written by the late King Hussein of Jordan, who said the group originally suspected of carrying out the December 1988 atrocity – the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) – was responsible.
And Aamer Anwar, the Scottish lawyer who is leading the Megrahi family’s bid to clear his name, told The National it was a “vital piece of evidence” that had been withheld from Megrahi’s defence.
That view is shared by Swire, who lost his daughter Flora in the bombing. He said: “I can’t make out why it should be in the public interest of the Scots or any other nation for this to remain under public interest immunity (PII) after this long – unless you believe it is in Scotland’s interest to continue to conceal the failure of her biggest international criminal investigation of recent years.
“It was the concealment of items such as this which led Professor Hans Koechler [UN observer to the Camp Zeist trial] to describe the proceedings as not representing justice, largely because of the Crown Office’s failure to share evidently significant material with the defence.
“The King of Jordan’s communication had been made available to the Crown Office for years before [then foreign secretary] David Miliband placed the PII certificate on it, at the Crown Office’s request. [RB: The Crown Office did not oppose release of the communication. It was the Advocate General for Scotland, acting on behalf of the Foreign and Commonwealth Office, that did so.] I think it is in the Scottish public’s interest to know how Whitehall connived with the Crown Office to ensure that justice was not done at Zeist.
He added: “It was Lady Thatcher who originally forbade an inquiry. Could it have been in part because her then recently privatised Heathrow was the showpiece of her privatisation programme?”
Anwar said the Megrahi family case was still with the Scottish Criminal Cases Review Commission (SCCRC) which he expected to report by the end of summer, when he hoped to return to the Appeal Court.
He said: “What is incredibly frustrating is the fact that the British government, the authorities, seem to still be maintaining attempts to continue what would be seen as a cover-up and deny critical information to the defence, because we remain the defence lawyers for Abdelbaset al-Megrahi posthumously.
All of this information which would go to proving his innocence continues to be denied us. The finger of blame as always pointed at the PFLP-GC.
“It is ... shocking behaviour, whether it be from the Crown Office or others in authority who seem to be conducting themselves in this manner.”
Meanwhile, The Telegraph yesterday named four members of the PFLP-GC – allegedly hired by Iran to bring down Pan Am flight 103 as revenge for a US naval attack on an Iranian Airbus in July 1988. They were: Ahmed Jibril, its potential mastermind; Hafez Dalkamoni, his right-hand man; Jordanian-born bomb-maker Marwan Khreesat, who possibly made the Lockerbie device; and Mohammed Abu Talb, who could have delivered it. [RB: I cannot find this Telegraph article. But the newspaper did publish an article naming these four men on 10 March 2014. It can be read here.]
The Crown Office said the PFLP-GC link was considered and rejected at the original trial. A spokesperson added: “The court concluded that the conception, planning and execution of the plot which led to the bombing was of Libyan origin. The only appropriate forum for the determination of guilt or innocence is the criminal court, and Mr Megrahi was convicted unanimously by three senior judges.
“His conviction was upheld unanimously by five judges, in an Appeal Court presided over by the Lord Justice General, Scotland’s most senior judge. As the investigation remains live, it would not be appropriate to offer further comment.” [RB: My commentary on the grave shortcomings of the trial verdict and the appeal can be read here.]
A prominent figure in the fight to prove the innocence of Libyan Abdelbaset al-Megrahi for the Lockerbie bombing has said keeping the contents of a 1991 telegram to then prime minister John Major secret until at least 2032 is not in Scotland’s – or any other nation’s – public interest.
Dr Jim Swire was speaking to The National after the claim about the document resurfaced. Its contents have been in the public domain for more than three years.
It was said to have been written by the late King Hussein of Jordan, who said the group originally suspected of carrying out the December 1988 atrocity – the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) – was responsible.
And Aamer Anwar, the Scottish lawyer who is leading the Megrahi family’s bid to clear his name, told The National it was a “vital piece of evidence” that had been withheld from Megrahi’s defence.
That view is shared by Swire, who lost his daughter Flora in the bombing. He said: “I can’t make out why it should be in the public interest of the Scots or any other nation for this to remain under public interest immunity (PII) after this long – unless you believe it is in Scotland’s interest to continue to conceal the failure of her biggest international criminal investigation of recent years.
“It was the concealment of items such as this which led Professor Hans Koechler [UN observer to the Camp Zeist trial] to describe the proceedings as not representing justice, largely because of the Crown Office’s failure to share evidently significant material with the defence.
“The King of Jordan’s communication had been made available to the Crown Office for years before [then foreign secretary] David Miliband placed the PII certificate on it, at the Crown Office’s request. [RB: The Crown Office did not oppose release of the communication. It was the Advocate General for Scotland, acting on behalf of the Foreign and Commonwealth Office, that did so.] I think it is in the Scottish public’s interest to know how Whitehall connived with the Crown Office to ensure that justice was not done at Zeist.
He added: “It was Lady Thatcher who originally forbade an inquiry. Could it have been in part because her then recently privatised Heathrow was the showpiece of her privatisation programme?”
Anwar said the Megrahi family case was still with the Scottish Criminal Cases Review Commission (SCCRC) which he expected to report by the end of summer, when he hoped to return to the Appeal Court.
He said: “What is incredibly frustrating is the fact that the British government, the authorities, seem to still be maintaining attempts to continue what would be seen as a cover-up and deny critical information to the defence, because we remain the defence lawyers for Abdelbaset al-Megrahi posthumously.
All of this information which would go to proving his innocence continues to be denied us. The finger of blame as always pointed at the PFLP-GC.
“It is ... shocking behaviour, whether it be from the Crown Office or others in authority who seem to be conducting themselves in this manner.”
Meanwhile, The Telegraph yesterday named four members of the PFLP-GC – allegedly hired by Iran to bring down Pan Am flight 103 as revenge for a US naval attack on an Iranian Airbus in July 1988. They were: Ahmed Jibril, its potential mastermind; Hafez Dalkamoni, his right-hand man; Jordanian-born bomb-maker Marwan Khreesat, who possibly made the Lockerbie device; and Mohammed Abu Talb, who could have delivered it. [RB: I cannot find this Telegraph article. But the newspaper did publish an article naming these four men on 10 March 2014. It can be read here.]
The Crown Office said the PFLP-GC link was considered and rejected at the original trial. A spokesperson added: “The court concluded that the conception, planning and execution of the plot which led to the bombing was of Libyan origin. The only appropriate forum for the determination of guilt or innocence is the criminal court, and Mr Megrahi was convicted unanimously by three senior judges.
“His conviction was upheld unanimously by five judges, in an Appeal Court presided over by the Lord Justice General, Scotland’s most senior judge. As the investigation remains live, it would not be appropriate to offer further comment.” [RB: My commentary on the grave shortcomings of the trial verdict and the appeal can be read here.]
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 21 February 2016
Westminster 'meddling' in Megrahi case
[This is the headline over a report published in The Herald on this date in 2008. It reads as follows:]
The UK Government has been accused of "interference" in the appeal of the man convicted of the Lockerbie bombing.
The charge was made yesterday as it was revealed for the first time that Scotland's top prosecutor would be prepared to release a top secret document which could overturn the case, but that UK ministers are blocking the move.
The Court of Criminal Appeal in Edinburgh was told that Elish Angiolini, the Lord Advocate, would be prepared to disclose the document which was uncovered during the three-year investigation of the Scottish Criminal Cases Review Commission which resulted in the case being referred back to the courts for a new appeal last summer.
The commission concluded the failure during the original trial to disclose this document, which comes from an un-named foreign country and is thought to contain information about the electronic timer used to detonate the bomb, could constitute a miscarriage of justice.
Although the Crown allowed the commission to see the material they have refused to disclose it to the defence.
Abdelbaset Ali Mohmed al Megrahi is currently serving 27 years in Greenock prison for the 1988 bombing which killed 270 people.
The Libyan's defence team say they need to see the document in order for Megrahi to have a fair appeal.
Maggie Scott, QC, leading Megrahi's defence team, said yesterday that according to the response from the Crown Office, "the Lord Advocate has decided that she should disclose this document for the purposes of the appeal".
She argued the lord advocate ultimately has the jurisdiction in deciding whether to disclose a document in a Scottish criminal appeal.
However, Lord Davidson, QC, the Advocate General, who represents the Westminster government in legal matters north of the border, had said no.
Ms Scott said: "No public interest objection has been taken or raised by the lord advocate. In these circumstances, the only reasonable inference is that ... the lord advocate on reflection does not consider there is a well-founded public interest objection to the disclosure of the document sought."
Ms Scott added: "When one understands this position, it becomes obvious ... the advocate general's intervention is preventing that disclosure.
"But for his intervention the document would be disclosed and when one understands that one sees the intervention by the Advocate General is interference by the UK Government in the pursuit of, the conduct of, a criminal prosecution by the lord advocate."
The advocate general is trying to invoke "public interest immunity" to keep the document secret but Ms Scott said it was incompetent for him to do so.
However, Lord Davidson claimed national security was at stake. He accused Ms Scott of "flawed logic" and said her claim the role of the Advocate General was to interfere in matters which should be left to the Scottish authorities was "wholly erroneous".
He told the court: "This is not a minor squabble. It is one of the most important issues that can ever come before a court. It is a question of national security."
The court heard that David Miliband, the Foreign Secretary, is behind moves for a public interest ruling.
Advocate depute Ronald Clancy, QC, for the Crown, also attacked Ms Scott's arguments, saying the lord advocate had not given up any of her independence.
Scotland's top judge, Lord Hamilton - sitting with Lords Kingarth and Eassie - will issue a decision at a later date about whether Lord Davidson has a right to ask them to keep the disputed document secret.
Megrahi was not in court for yesterday's hearing, but the defence said he would like to attend future appeal hearings, raising questions about where the hearings might be held.
[RB: Eventually, the court ordered that the document should be disclosed, though NOT to Megrahi or his legal team but to a special security-vetted counsel, the first time that such a creature (relatively common in English procedure) had been recognised in Scotland.]
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-à-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-à-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 10 April 2019
Lockerbie telegram must remain sealed until 2032
[This is the headline over an article in today's edition of The Times. It reads in part:]
Ministers have refused to disclose the contents of a telegram sent to the prime minister three years after the Lockerbie bombing, claiming it would be harmful to Britain.
A message sent to John Major in 1991, containing information about the atrocity from an unnamed overseas government, is held at the UK National Archives at Kew, west London.
An application made by The Times to view it has been rejected on the basis that it would be damaging to national interests.
The cabinet office’s dismissal of the freedom of information request means the document will remain closed to the public until 2032 at the earliest. It has fuelled suggestions from campaigners that evidence relating to Britain’s worst terrorist atrocity is being concealed.
National Archive records confirm that Mr Major received a telegram relating to the Lockerbie bombing on November 15, 1991. [RB: Significantly, this is the day following the announcement by the UK and US governments that they were bringing charges against Abdelbaset Megrahi and Lamin Fhimah:
http://lockerbiecase.blogspot.com/2010/11/nineteenth-anniversary-of-megrahi.html]
Freedom of information requests are meant to be ruled on within 20 working days. It took almost six months before ministers finally decided that the telegram could not be brought into the public domain.
A response to the request says: “In this instance, we believe the release of the information received in confidence would harm UK relations with the country which provided the information. This would be detrimental to the operation of government and would not be in the UK’s interest.
“In light of the potential harm to UK relations with the country concerned, and UK interests there, it is judged that release of the material would not be in the public interest." (...)
Robert Black, a legal expert who helped to establish the Lockerbie trial, has raised concerns about a lack of transparency from successive UK governments.
The professor emeritus of Scots law at the University of Edinburgh, who is convinced a miscarriage of justice took place, said: “It is extremely difficult to understand how a document dating from November 15, 1991, could still in 2019 adversely affect the national interests of the UK or its relations with the country of origin. Much more likely is that the contents of the documents would embarrass the UK by showing just how tenuous is the case for Libyan responsibility for the Lockerbie tragedy.”
Iain McKie, of the Justice for Megrahi group, said: “It beggars belief that the UK government, after 30 years of widespread and well-founded doubts about various aspects of the Lockerbie investigation and trial, continues in its efforts to hide the truth about the tragedy.
“That they should claim to be protecting the public interest only adds insult to injury for the family and friends of the 270 souls who perished.”
More than 50 government files relating to the bombing on December 21, 1988, are held at the archives.
Late last year a file containing records from the prime minister’s office relating to the “Pan Am 747 air crash” was declassified and listed in records as available to view.
When The Times asked to see it, reporters were told that it had been retained by the government on an indefinite basis.
Dozens of other files, listed under “Aviation security: destruction of Pam Am, Flight 103”, have been closed until 2032. Applications to view them are met with a notice saying that they are “closed and retained”.
[RB: I suspect that the document in question is, or is related to, the one from King Hussein of Jordan in respect of which then Foreign Secretary David Miliband issued a public interest immunity (PII) certificate barring disclosure to Megrahi's legal team in the run-up to his second appeal: https://lockerbiecase.blogspot.com/2016/06/bombshell-book.html.
The sorry saga of the UK government's PII claim, as it unfolded in Megrahi's 2008 appeal following the SCCRC's reference of his conviction back to the High Court of Justiciary, can be followed here: https://lockerbiecase.blogspot.com/2014/01/uk-and-us-geopolitical-interests-could.html.]
Ministers have refused to disclose the contents of a telegram sent to the prime minister three years after the Lockerbie bombing, claiming it would be harmful to Britain.
A message sent to John Major in 1991, containing information about the atrocity from an unnamed overseas government, is held at the UK National Archives at Kew, west London.
An application made by The Times to view it has been rejected on the basis that it would be damaging to national interests.
The cabinet office’s dismissal of the freedom of information request means the document will remain closed to the public until 2032 at the earliest. It has fuelled suggestions from campaigners that evidence relating to Britain’s worst terrorist atrocity is being concealed.
National Archive records confirm that Mr Major received a telegram relating to the Lockerbie bombing on November 15, 1991. [RB: Significantly, this is the day following the announcement by the UK and US governments that they were bringing charges against Abdelbaset Megrahi and Lamin Fhimah:
http://lockerbiecase.blogspot.com/2010/11/nineteenth-anniversary-of-megrahi.html]
Freedom of information requests are meant to be ruled on within 20 working days. It took almost six months before ministers finally decided that the telegram could not be brought into the public domain.
A response to the request says: “In this instance, we believe the release of the information received in confidence would harm UK relations with the country which provided the information. This would be detrimental to the operation of government and would not be in the UK’s interest.
“In light of the potential harm to UK relations with the country concerned, and UK interests there, it is judged that release of the material would not be in the public interest." (...)
Robert Black, a legal expert who helped to establish the Lockerbie trial, has raised concerns about a lack of transparency from successive UK governments.
The professor emeritus of Scots law at the University of Edinburgh, who is convinced a miscarriage of justice took place, said: “It is extremely difficult to understand how a document dating from November 15, 1991, could still in 2019 adversely affect the national interests of the UK or its relations with the country of origin. Much more likely is that the contents of the documents would embarrass the UK by showing just how tenuous is the case for Libyan responsibility for the Lockerbie tragedy.”
Iain McKie, of the Justice for Megrahi group, said: “It beggars belief that the UK government, after 30 years of widespread and well-founded doubts about various aspects of the Lockerbie investigation and trial, continues in its efforts to hide the truth about the tragedy.
“That they should claim to be protecting the public interest only adds insult to injury for the family and friends of the 270 souls who perished.”
More than 50 government files relating to the bombing on December 21, 1988, are held at the archives.
Late last year a file containing records from the prime minister’s office relating to the “Pan Am 747 air crash” was declassified and listed in records as available to view.
When The Times asked to see it, reporters were told that it had been retained by the government on an indefinite basis.
Dozens of other files, listed under “Aviation security: destruction of Pam Am, Flight 103”, have been closed until 2032. Applications to view them are met with a notice saying that they are “closed and retained”.
[RB: I suspect that the document in question is, or is related to, the one from King Hussein of Jordan in respect of which then Foreign Secretary David Miliband issued a public interest immunity (PII) certificate barring disclosure to Megrahi's legal team in the run-up to his second appeal: https://lockerbiecase.blogspot.com/2016/06/bombshell-book.html.
The sorry saga of the UK government's PII claim, as it unfolded in Megrahi's 2008 appeal following the SCCRC's reference of his conviction back to the High Court of Justiciary, can be followed here: https://lockerbiecase.blogspot.com/2014/01/uk-and-us-geopolitical-interests-could.html.]
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