[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.]
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
Friday 12 April 2019
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.]
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.
Saturday 27 May 2017
Sidelining Megrahi’s chosen lawyers
The Westminster Government set out a "remarkable" proposal yesterday for judges to go into private session during a preliminary hearing in the Lockerbie bomber's appeal.
Under the plan, claimed to be in the interests of national security, not only would the public be excluded, but Abdelbaset Ali Mohmed al-Megrahi's legal team would also be denied entry. He is seeking access to a classified document, and a vetted lawyer would be appointed to represent his interests at the hearing.
The behind-closed-doors session of the Court of Criminal Appeal would be the first of its kind in Scotland.
"This may initially seem remarkable, and I accept that," said Lord Davidson, QC, the Advocate-General for Scotland, on behalf of the foreign secretary, David Miliband. "This is an area of very considerable difficulty and one forced on the government because of extraordinarily difficult times...in the prevention of terrorism," he added.
Megrahi's lawyers are expected to give their response to the proposal today. (...)
[Megrahi] lost an appeal in 2002, but last year the Scottish Criminal Cases Review Commission referred the case back to the appeal court. One of the reasons cited was that there may have been a miscarriage of justice because the Crown had not disclosed to the defence a document which an unidentified country, not the United States, had provided to the UK government in 1996. It is understood the paper relates to the timer alleged to have been fitted in the bomb.
Megrahi's defence team petitioned the appeal court, seeking access to the document and related papers. In response, Mr Miliband issued a public interest immunity (PII) certificate, stating: "It would cause real harm to the national security of the UK because of damage to counter-terrorism liaison and intelligence gathering between the UK and other states."
The appeal court has said there should be a hearing to consider the merits of the foreign secretary's public interest immunity plea. The current hearing is to determine the procedure to be followed at the hearing on the merits.
Lord Davidson said the Government was entitled to take steps to protect UK security.
His proposal was that the document be disclosed to a five-strong appeal Bench and a "special representative" who would look after Megrahi's interests.
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”.
Friday 22 May 2015
Public interest immunity and security-vetted counsel
Prosecutors will next week attempt to throw an unprecedented veil of secrecy over the appeal of the Lockerbie bomber.
The Crown Office will ask judges to bypass the defence team of Abdelbaset Ali Mohmed al Megrahi and appoint special security-vetted advocates to represent him in a court hearing to decide whether a previously confidential document should be made public.
If the bid for a closed-door session is successful, it would be the first time in Scotland that such a step has been taken in a criminal case.
However, the tactic will fuel suspicions that the Crown is going to unusual lengths to preserve the UK's current diplomatic relations with other nations.
The paperwork, which originated in an unknown foreign country, is thought to contain vital information about the electronic timer which detonated the bomb that killed 270 people in the skies over Lockerbie.
It is not known if political pressure has been exercised directly on the Crown, but there have been previous instances in the Megrahi case where Britain's changed attitudes to foreign states since 1988 have played a key role in the legal process.
Foreign Secretary David Miliband has already said the document should remain confidential.
It was uncovered during the three-year investigation of the Scottish Criminal Cases Review Commission, which resulted in the case being referred back to the courts for a new appeal last summer. The commission concluded the failure during the original trial to disclose the document could constitute a miscarriage of justice. Although the Crown allowed the commission to see the material, it has refused to disclose it to Megrahi's defence team.
The Crown's latest move is expected to anger further his lawyers, who believe the failure to disclose the document calls into question the ultimate right to a fair appeal.
The request will be made on Tuesday at the Court of Criminal Appeal when the decision on whether to grant the defence access to the document is to be debated.
The Crown is expected to ask for the hearing to be held behind closed doors in the absence of the defence, who would be represented by special advocates. Public Interest Immunity hearings of this kind in criminal cases have previously been held only south of the border, where there is a statutory system in place, and a list of special advocates.
Megrahi's defence team has made it clear that it needs to see the document in order to proceed with the appeal, and has accused the UK Government of "interference" in the appeal.
If the prosecution denies access to the paper, Megrahi's lawyers are expected to argue that the conviction should be quashed because, without it, their client's right to a fair trial would be breached.
One legal expert said: "This is entirely unprecedented in Scotland."
A spokesman for the Crown Office said the court hearing is to be from from May 27 to 29 in Edinburgh. "It is not possible to provide further comment," he said.
[RB: It was, of course, the UK Government (represented by the then Advocate General for Scotland, Lord Davidson of Glen Clova QC) not the Lord Advocate or the Crown Office, that sought the appointment of a special security-vetted advocate. The court ultimately (and utterly wrongly) acceded to the request. If a further appeal takes place in consequence of the current application to the Scottish Criminal Cases Review Commission, will the present UK government adopt the same attitude? And, if so, will a differently constituted judicial bench be as supine as its predecessor? By the time those become live issues it is to be hoped that Prime Minister David Cameron will have got round to appointing an Advocate General -- at the time of writing the only ministerial office yet to be filled in the new UK administration.]
Wednesday 8 March 2017
UK Government held entitled to claim public interest immunity
The defence team for the Libyan jailed for the Lockerbie bombing yesterday suffered a set-back in its attempts to get access to a top-secret document.
The document, which originated in an unknown foreign country, is thought to contain vital information about the timer which detonated the bomb that killed 270 people in 1988.
At the previous hearing, the UK Government said the document could not be disclosed for reasons of national security, leading the defence team to accuse it of "interference" in the appeal.
Margaret Scott QC, senior counsel for Abdelbaset Ali Mohmed al Megrahi, the Libyan currently serving 27 years in Greenock prison for the bombing, objected to the Advocate General for Scotland - the law officer who represents the UK Government in Scottish affairs - playing a part in the debate.
She accused the government of meddling - an allegation hotly disputed by Lord Davidson, the Advocate General, and by Elish Angiolini QC, the Lord Advocate and head of prosecutions in Scotland.
However, yesterday the appeal judges ruled against her. Their decision opens the way for several days of future debate about whether letting lawyers see the document would have any security implications.
The Libyan's defence team say it needs to see the document in order for Megrahi to have a fair appeal.
Earlier this year, the Court of Criminal Appeal in Edinburgh was told that Ms Angiolini would be prepared to disclose the document but that has also been disputed.
The document itself was uncovered during the three-year investigation of the Scottish Criminal Cases Review Commission which resulted in the case being referred back to the courts for a new appeal last summer.
The commission concluded the failure during the original trial to disclose this document, which is thought to contain information about the electronic timer used to detonate the bomb, could constitute a miscarriage of justice.
Although the Crown allowed the commission to see the material they have refused to disclose it to the defence.
Foreign Secretary David Miliband claims the document should remain confidential.
Now Lord Davidson will be allowed to put the case for "public interest immunity", on his behalf, at a future hearing - for which no date has yet been set. The hearing of Megrahi's actual appeal is still months away.
Megrahi, who was jailed in 2001, was not in court yesterday - but the appeal judges have been told he would like to attend future appeal hearings.
Sunday 22 May 2016
MacAskill may have breached Official Secrets Act over Lockerbie
Former justice minister Kenny MacAskill has revealed details of highly classified secret document which casts serious doubt on the safety of the conviction of Lockerbie bomber Abdelbaset al-Megrahi.
However, the Foreign and Commonwealth Office (FCO) has said that the revelation, which will appear in MacAskill's new book about the downing of Pan Am flight 103, 'might' constitute a breach of the Official Secrets Act.
It is understood the FCO only became aware that top secret details were disclosed in MacAskill’s book when the Sunday Herald contacted the UK government about the revelations. Officials are now believed to be seeking legal advice.
The person who discloses information is guilty of an offence if they do so “without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure”.
In his book, The Lockerbie Bombing: The Search for Justice, which is due to be released on Thursday, MacAskill reveals details of a secret document which implicates the terror group the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) in the Lockerbie bombing carried out on December 21 1988.
The PFLP-GC were the original suspects in the investigation into the biggest terrorist atrocity ever to have been committed in mainland Britain, which claimed the lives of 270 people, including 11 Lockerbie residents.
However, by 1991 police and prosecutors were entirely focused on Libya and in 2001 Megrahi – who was a former Libyan intelligence officer - was convicted of the bombing and sentenced to life in prison. (...)
The significance of the document which implicates the PFLP-GC is played down by MacAskill in his book but it does suggest others may have been involved in the bombing.
The details of the document are covered by a strict Whitehall gagging order. The document in question was the subject of a legal wrangle during Megrahi’s second appeal against conviction.
The Scottish Criminal Cases Review Commission (SCCRC) referred the case to the High Court on the basis that there may have been a miscarriage of justice.
That conclusion was reached after the SCCRC team that investigated Megrahi's conviction discovered the existence of the document during their four-year probe which concluded in 2007.
Their 800-page report explains that their investigative team were allowed to access the document in Dumfries police station but they were prevented from removing the notes they made on it and the document itself.
The SCCRC was only able to access the document after signing up to a special agreement not to divulge the contents and was told by the Crown that “a conclusion was reached that the documents did not require to be disclosed in terms of the Crown's obligations”.
When Megrahi’s defence team pushed for the recovery of the information the Lord Advocate took the view that it would be appropriate to disclose the document.
However, the Advocate General, representing the UK government, produced a public interest immunity (PII) certificate signed by then Foreign Secretary David Miliband, which blocked the disclosure on the grounds of national security.
A spokeswoman for the FCO confirmed that “the [PII] certificate is still active” and “if the material protected by the certificate were disclosed, it might constitute a breach of the Official Secrets Act.”
She added: “It would be for the publisher of the book to seek their own legal advice about any legal risks they are running.”
A Scottish Government spokeswoman said: “This is a matter for the publisher to advise upon.”
In 2012 the UK Government went to great lengths to prevent our sister paper The Herald revealing details of the document.
It threatened legal action to stop publication and asked the paper to sign up to a court-approved gagging order.
At that time only the Crown, UK Government and SCCRC team knew the contents of the closely guarded document.
The Herald did publish some details which implicated the PFLP-GC, and revealed that the document originated in Jordan.
MacAskill, however, has gone much further, naming key individuals who were party to the contents of the document, and the potential security ramifications of its release into the public domain.
The Sunday Herald has chosen - after consultation with our lawyers - not to publish the full details of the document despite knowing its contents.
Co-founder of campaigning organisation Lockerbie Truth, Dr Jim Swire, 80, whose daughter Flora was killed in the bombing, said the revelations confirmed his suspicions about the potential involvement of the PFLP-GC.
He said: “It’s exactly what the relatives of the victims have thought for many years. I hope that the book is published without interference. It may lead us to find ways of breaking through the refusal to look again at the evidence used to convict Megrahi.
“This sort of thing - pointing to official knowledge of the real perpetrators - could be absolutely crucial.”
A Crown Office spokesman said: “The Crown has had no involvement in the publication of the former Cabinet Secretary’s book and cannot therefore comment on its content ahead of publication.
“The suggestion that the PFLP-GC was responsible for the Lockerbie bombing was fully considered by the trial court following the incrimination of this terrorist group by Megrahi during his trial and does nothing to undermine the Crown's case that Megrahi acted with others in the bombing of flight Pan Am 103. (...)”
When asked about the possible breach of the PII certificate, Victoria Gilder, Publicity Director at Biteback, the publisher of MacAskill’s book, said: “Sorry, I can’t comment on that because I don’t know anything about it.
“The book is embargoed until next week…you’re not supposed to run anything. It’s embargoed until Monday.”
Last night a Foreign Office spokesman confirmed that the government department has not seen a copy of the book, but added: “We take the protection of material covered by Public Interest Immunity certificates extremely seriously.”
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."
Sunday 9 October 2016
Sensitive information from a foreign government
[What follows is excerpted from a report published on this date in 2000 on the BBC News website:]
The Lockerbie trial is to be delayed again after "sensitive" information was given to the prosecution by a government.
In an unexpected development, Scotland's Lord Advocate Colin Boyd QC told the judges on Monday it was impossible to proceed without further enquiries.
He gave few details to the court but confirmed that the information was related to the defence case and did not come from the United States.
Although some witnesses will be heard on Tuesday, the judges, with defence agreement, agreed then to adjourn the trial until Tuesday, 17 October.
On Monday the court at Camp Zeist in Holland was due to hear more evidence relating to the special defences of incrimination put forward by the two accused men.
They have denied all charges against them, blaming others for the atrocity including Mohamed Abo Talb, a former commander in the Palestinian Popular Struggle Front.
Talb, who was jailed for life in 1989 for bombing an airline's office in Copenhagen, was expected to give evidence as a prosecution witness on Monday.
The prosecution declined to comment further on the delay and a Crown Office spokesman said: "We can give no further information other than that given to the court by the lord advocate."
Mr Boyd told the court he had received the new information on Thursday and enquiries were carried out on Friday.
He said: "The matters raised by this information are of some complexity and considerable sensitivity. They relate not to the Crown case but to the defence case.
"Enquiries are continuing but it is likely, though not certain, that I will conclude that the information ought to be disclosed to the defence.
"However there are a number of difficult issues which require to be resolved before any disclosure is possible.
"The sensitivity of the enquiries is such that I am unable to give any further explanation at this stage."
Mr Boyd said it would be "inappropriate" to lead further Crown evidence relating to the special defences as the new information could have a bearing on the cross examination of witnesses.
William Taylor QC, defence counsel for Al Megrahi, told the judges he was "as much in the dark" as them about the reasons for the adjournment and therefore in no position to object to it.
However he added: "I am conscious that my client has now been in custody for some considerable time and any delay further extends that period."
Richard Keen QC, defending Fhimah, said: "It's obviously unfortunate the accused should have been in custody for one and a half years while 57 days of a trial has taken place.
"But the lord advocate was good enough to speak to myself and Mr Taylor before and I fully accept he has obligations incumbent on him in the public interest."
Presiding judge Lord Sutherland said that while a disruption to the proceedings was "unfortunate" the judges accepted the adjournment motion.
He said: "We will adjourn until next Tuesday for enquiries to be made. All we can do is express the hope that there will be sufficient time to resolve the difficulties."
[RB: I suspect that the document referred to above was not in fact provided to the defence at the Zeist trial and is the same document that was only disclosed six years later to the Scottish Criminal Cases Review Commission, and in respect of which the Foreign Secretary, David Miliband, signed a Public Interest Immunity certificate to prevent its being revealed to Megrahi’s legal team for the subsequent appeal. The contents of the document were made public in a report in The Herald in June 2012. Kenny MacAskill made reference to it in his recent Lockerbie book: see Lockerbie: The bid to suppress evidence on this blog on 27 May 2016.]
The Lockerbie trial is to be delayed again after "sensitive" information was given to the prosecution by a government.
In an unexpected development, Scotland's Lord Advocate Colin Boyd QC told the judges on Monday it was impossible to proceed without further enquiries.
He gave few details to the court but confirmed that the information was related to the defence case and did not come from the United States.
Although some witnesses will be heard on Tuesday, the judges, with defence agreement, agreed then to adjourn the trial until Tuesday, 17 October.
On Monday the court at Camp Zeist in Holland was due to hear more evidence relating to the special defences of incrimination put forward by the two accused men.
They have denied all charges against them, blaming others for the atrocity including Mohamed Abo Talb, a former commander in the Palestinian Popular Struggle Front.
Talb, who was jailed for life in 1989 for bombing an airline's office in Copenhagen, was expected to give evidence as a prosecution witness on Monday.
The prosecution declined to comment further on the delay and a Crown Office spokesman said: "We can give no further information other than that given to the court by the lord advocate."
Mr Boyd told the court he had received the new information on Thursday and enquiries were carried out on Friday.
He said: "The matters raised by this information are of some complexity and considerable sensitivity. They relate not to the Crown case but to the defence case.
"Enquiries are continuing but it is likely, though not certain, that I will conclude that the information ought to be disclosed to the defence.
"However there are a number of difficult issues which require to be resolved before any disclosure is possible.
"The sensitivity of the enquiries is such that I am unable to give any further explanation at this stage."
Mr Boyd said it would be "inappropriate" to lead further Crown evidence relating to the special defences as the new information could have a bearing on the cross examination of witnesses.
William Taylor QC, defence counsel for Al Megrahi, told the judges he was "as much in the dark" as them about the reasons for the adjournment and therefore in no position to object to it.
However he added: "I am conscious that my client has now been in custody for some considerable time and any delay further extends that period."
Richard Keen QC, defending Fhimah, said: "It's obviously unfortunate the accused should have been in custody for one and a half years while 57 days of a trial has taken place.
"But the lord advocate was good enough to speak to myself and Mr Taylor before and I fully accept he has obligations incumbent on him in the public interest."
Presiding judge Lord Sutherland said that while a disruption to the proceedings was "unfortunate" the judges accepted the adjournment motion.
He said: "We will adjourn until next Tuesday for enquiries to be made. All we can do is express the hope that there will be sufficient time to resolve the difficulties."
[RB: I suspect that the document referred to above was not in fact provided to the defence at the Zeist trial and is the same document that was only disclosed six years later to the Scottish Criminal Cases Review Commission, and in respect of which the Foreign Secretary, David Miliband, signed a Public Interest Immunity certificate to prevent its being revealed to Megrahi’s legal team for the subsequent appeal. The contents of the document were made public in a report in The Herald in June 2012. Kenny MacAskill made reference to it in his recent Lockerbie book: see Lockerbie: The bid to suppress evidence on this blog on 27 May 2016.]
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