Frank Mulholland to become judge

[A Scottish Government press release announces today that the Lord Advocate, Frank Mulholland QC is amongst five new judges of the Court of Session and High Court of Justiciary. It reads as follows:]

Her Majesty the Queen has appointed five new Senators to the College of Justice on the recommendation of the First Minister.

Sheriff John Beckett QC, Ailsa Carmichael QC, Alistair Clark QC, the Rt Hon Frank Mulholland QC and Andrew Stewart QC will sit as judges in the Court of Session and the High Court of Justiciary.

The judges will deal with Scotland’s most important criminal and civil cases.

Their appointments take effect on dates to be agreed by the Lord President. Four of the appointments are to fill existing vacancies. The fifth appointment, to be taken up by Frank Mulholland QC, will take effect following the retirement of a senator later in the year.

Campaigners’ Lockerbie plea to government over Lord Advocate's comments

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

A campaign group whose members believe Abdelbaset al-Megrahi was innocent of the Lockerbie bombing has urged “political intervention” from the Scottish Government.

The call from Justice for Megrahi (JfM) comes after the outgoing Lord Advocate Frank Mulholland speculated about a possible new trial for the bombing – which JfM said showed he had “gone rogue”.

Investigators from Scotland and the US said last year that they had identified two Libyans as suspects over the 1988 atrocity.

Mulholland had previously indicated he would stand down after the Holyrood elections and, in an interview to mark the occasion he told STV there was a “realistic possibility” of a second trial over bombing, which killed 270 people.

JfM told The National: “The time has come for political intervention by the Scottish Government as the Lord Advocate appears to have gone rogue in relation to his speculation about Lockerbie. It is particularly difficult to understand his statements given that we are awaiting the result of a three-year Police Scotland investigation into criminal allegations related to Lockerbie which, if proved, will cast severe doubt not only on Mr Megrahi’s original conviction but by implication on the guilt of the other ‘suspects’ Mr Mulholland claims to be pursuing.

“It was only in March this year that leading legal commentators criticised Mr Mulholland in relation to this report and yet he continues to publicly undermine the police inquiry.

“This makes it quite clear that he has made his mind up and will not be diverted from making his views public at every opportunity.

“Given this unprecedented stance it is a constitutional disgrace that the Crown Office will have the final say in relation to any prosecutions resulting from the police inquiry.

“The time is long overdue for the Scottish Government to intervene on behalf of the Scottish people.”

In his interview, Mulholland said he had been to the Libyan capital Tripoli twice, and had established “good relations” with the country’s attorney general.

“We’re currently at a stage where there are a number of outstanding international letters of request, one of which is seeking the permission of the Libyan authorities to interview two named individuals as suspects,” he said. “I hope that the Libyans will grant permission for that to be done. I obviously can’t say too much publicly but a lot of work is going on behind the scenes to make that happen.”

Mulholland and the US Attorney General Loretta Lynch announced in October that there was “a proper basis in law” to treat the two Libyans as suspects. Authorities did not name the men, but they are known to be Colonel Gaddafi’s former intelligence chief Abdullah Senussi, and Abouajela Masud.

Both are being held in Libyan jails, where Senussi is appealing against a death sentence and Masud is serving 10 years for bomb making.

'Realistic possibility' of second Lockerbie bombing trial

[This is the headline over a report published this evening on the STV News website. It reads in part:]

Scotland's chief law officer believes there is a "realistic possibility" of a second trial over the murder of 270 people in the Lockerbie bombing.

Scottish and American investigators announced last year that they had identified two Libyans as suspects over the 1988 atrocity but since then very little has been said publicly about the case.

In an interview with STV News to mark his departure from the post after five years, lord advocate Frank Mulholland QC discussed the prospect of fresh prosecutions over Britain's biggest mass murder.

"I've been to Tripoli twice," said. "I've established good relations with the law enforcement attorney general in Libya.

"We're currently at a stage where there are a number of outstanding international letters of request, one of which is seeking the permission of the Libyan authorities to interview two named individuals as suspects.

"Following all the work that's been going on, and it's been painstaking, it's taken some time, it does take time.

"I hope that the Libyans will grant permission for that to be done. I obviously can't say too much publicly but a lot of work is going on behind the scenes to make that happen.

"What I hope is that this will bear fruit and we can take it to the next stage of seeking the extradition of the two named individuals."

Last October, it was announced the lord advocate and the US attorney general had agreed there was "a proper basis in law" to treat the two Libyans as suspects.

The two men were not named by the Scottish or US authorities but they are Abdullah Senussi, Colonel Gaddafi's former intelligence chief, and Abouajela Masud.

Both are being held in jails in Libya - Senussi is appealing against a death sentence while Masud is serving ten years for bomb making. (...)

Asked if there was any realistic possibility of Senussi being surrendered for trial, Frank Mulholland replied: "Before I embarked on this work I was told that there was no possibility, absolutely none, of the Libyans cooperating with law enforcement in Scotland or the United States. That happened.

"In 2011, I attended a ceremony in Arlington where the Libyan ambassador to the US made a public commitment on behalf of the Libyan government to help. They have kept their word. They have helped.

"I said it takes time, and it will take time, and that's certainly something which we are used to in relation to the Lockerbie inquiry.

"If we get to the stage of seeking the extradition of two named individuals or indeed more persons, I think there's a realistic possibility that there could be a further trial."

The two men are suspected of bringing down Pan Am 103 while acting along with Abdelbaset al-Megrahi, who remains the only person convicted of the bombing.

He died protesting his innocence after being released on compassionate grounds by the Scottish Government. A high-profile campaign to clear his name continues.

The lord advocate acknowledged any new Lockerbie trial would involve a public re-examination of the disputed evidence from Megrahi's.

"I don't fear that," he said. "I think that's a good thing. Without seeking to comment on what the outcome would be, I think the evidence would stand up to a further test.

"We wouldn't be doing this unless we thought that the evidence was sufficiently credible and reliable to have them interviewed as suspects, I think that's the best way to put it."

For many years after the bombing it seemed extremely unlikely there would ever be prosecutions over Lockerbie.

Eventually a diplomatic deal paved the way for the first trial to go ahead in a specially-convened Scottish court sitting at Camp Zeist in the Netherlands.

Frank Mulholland first raised the hope that the collapse of Gaddafi's regime could allow Scottish police to visit Libya back in 2011.

He is the first British or American official to publicly express the belief that a second trial could happen, albeit with carefully chosen words.

[RB: In my view the chances of either Senussi or Masud being extradited to stand trial for the Lockerbie bombing are precisely zero. I would, however, be delighted to be proved wrong since, as Frank Mulholland concedes, that would inevitably subject to further scrutiny the evidence that led to the conviction of Abdelbaset Megrahi -- a scrutiny that that evidence could not survive.]

Being the lord advocate means ‘always being ten minutes away from disaster’

This is the headline over a lengthy profile of the outgoing Lord Advocate, Frank Mulholland QC, in today’s edition of The Times. Scanning the article for references to Mr Mulholland’s absolutely outrageous conduct in connexion with Justice for Megrahi’s allegations of criminal misconduct in the Lockerbie investigation, prosecution and trial, my eyes lit upon the following:

“The departing lord advocate has kept some very bad company over the years. He had the satisfaction of dealing with Robert Black …”

Great was my disappointment to discover that the reference is to the serial killer, not to me.

The profile contains no reference whatsoever to Lockerbie or the Megrahi case. This is perhaps just as well, since any such reference would of necessity have conflicted with the saccharine tone of the rest of the piece.

Lockerbie: the investigation remains live

[This is the headline over the fifth and final instalment of Dr Morag Kerr’s series of articles on the Lockerbie case. It appears in the April edition of iScot magazine and reads in part:]

Not even those who believed Abdelbaset al-Megrahi was guilty of the Lockerbie bombing ever imagined he acted alone.  This was always understood to have been an act of state-sponsored terrorism, and the official line was that Colonel Muammar Gaddafi had ordered the attack in revenge for the US bombing of Tripoli and Benghazi two years earlier in 1986.  Megrahi was merely the pawn who had been caught.  However, the acquittal of his co-accused Lamin Fhimah, who had originally been proposed as the man who put the bomb on the plane, left the identity of the other conspirators entirely up in the air.

Recognising this, the Lockerbie investigation remained live even after Megrahi’s conviction.  Initially it was largely a paper exercise, and the search for his supposed accomplices was seldom mentioned before August 2009, when he was released on compassionate grounds.  Instead the debate centred around whether Megrahi himself had been wrongly convicted, with the SCCRC report of 2007 enumerating no less than six grounds on which they believed a miscarriage of justice might have occurred.

Megrahi’s abandoning of the resulting appeal a few days before his release is mired in controversy.  On the face of it, the timing strongly implies some sort of quid pro quo.  His advocate Maggie Scott stated straight out that her client had been forced to give up the appeal as a condition of being allowed to return to Libya, but Kenny MacAskill, Justice Secretary at the time, has always denied putting pressure on Megrahi.

Following Megrahi’s return to Libya the Crown Office announced that it was pursuing fresh inquiries into the circumstances of the bombing, with a team of detectives assigned to the case and forensic evidence being reviewed.  Initially this was assumed to be a new, open-minded investigation prompted by the very real doubts highlighted by the SCCRC.  However, it soon became clear that it was anything but.  Despite Megrahi’s continuing protestations of innocence and the SCCRC’s findings remaining untested in court, the Crown Office decided to treat his withdrawal of appeal proceedings as a de facto admission of guilt.  There was to be no question of reconsidering the case against Megrahi.  The new investigation was focussed, exclusively, on identifying his presumed accomplices.

Initially the Gaddafi regime provided at least token co-operation, but little progress was made in the first two years.  In late 2011 the fall of Gaddafi  provided an entirely new playing field, with the Libyan rebels anxious to curry favour with the western powers, and in particular to lay the blame for every evil deed of the past forty years firmly at Gaddafi’s feet.  Nevertheless, this again amounted to very little.  The only relevant document found in the aftermath of Gaddafi’s overthrow was a letter from Megrahi to a Libyan official, in which he protested his innocence and asked for help to clear his name.  Several renegade Gaddafi-era officials anxious to reposition themselves in the new order advertised that they had evidence that Gaddafi had personally ordered the bombing of Pan Am flight 103, but this “evidence” turned out to be no more than a declaration that Megrahi wouldn’t have dared to do such a thing without an express order from Gaddafi, and pointing out the well-known fact that Gaddafi had paid for Megrahi’s legal representation and supported him while he was in prison.  The Crown Office issued periodic press releases emphasising their commitment to identifying the “others” with whom Megrahi had supposedly acted, but details of any actual progress were scanty to nonexistent.

Meanwhile those campaigning for Megrahi’s conviction to be reviewed were also active.  Members of the committee of Justice for Megrahi were concerned that not only were there serious grounds for believing the conviction to be a miscarriage of justice, but that the original inquiry and court proceedings might well have been tainted by misconduct.  After considerable discussion and soul-searching it was decided to lay these suspicions before the relevant authorities.

Formal allegations of criminality were drawn up against a number of individuals involved in both the 1988-92 police investigation and the 2000-01 court proceedings, eventually amounting to nine allegations in total supported by a 63-page dossier of evidence and legal argument.  Given that these allegations involved members of the Dumfries and Galloway police force and Crown Office personnel, it was difficult to know to whom the dossier should be submitted.  Accused bodies can’t themselves investigate the accusations against them – can they?  A letter was sent to Kenny MacAskill asking, in confidence, how Justice for Megrahi should proceed.

The reply was that the allegations should be submitted to the Dumfries and Galloway constabulary.  While JFM was unhappy with this instruction there was no option but to comply, and the dossier was sent to the then Chief Constable of the D&G, Patrick Shearer.  The reaction from the Crown Office was even more disconcerting.  Even before the detailed allegations had been submitted the Lord Advocate Frank Mulholland branded them “deliberately false and malicious” in the pages of the Scotsman, and dismissed the Justice for Megrahi group as “conspiracy theorists”.

The initial 2013 investigation of the allegations was unimpressive. (...)

The establishment of Police Scotland, combined with some pointed complaints, heralded a transformation.  A team of detectives was assigned to investigate the allegations, codenamed “Operation Sandwood”.  These officers have been working diligently on the material submitted by JFM for over two years.  Although a report was originally expected by the summer of 2015, the need to follow up additional leads and the desire to do a thorough job caused this to be postponed, and submission is currently expected in May 2016.

The allegations cover three main headings.  First, that the original police and forensic investigation ignored or sidelined crucial evidence demonstrating that the bomb was already in the baggage container an hour before the feeder flight from Frankfurt landed at Heathrow.  Second, that while police and forensic investigators knew very well that the metallurgical analysis of the printed circuit board fragment PT/35b showed that it had never been part of one of the MST-13 timers supplied to the Libyan armed forces, this information was concealed from the defence and the court, even to the point of a witness giving misleading testimony in the witness box.  Third, that the handling of the witness Tony Gauci was improper even by the standards of 1991-92, with the police investigation focussed on acquiring statements that could be represented as identifying Megrahi as the man who bought the clothes packed in the bomb suitcase rather than investigating dispassionately whether this was actually likely to be the case.  A fourth ground concerns misleading and untrue information supplied to the court by a member of the prosecution team, concerning the credibility of the witness Abdul Majid Giaka.

Thus, for the past two years, two fundamentally conflicting Lockerbie inquiries have been ongoing within Police Scotland.  The Crown Office’s own investigation, predicated entirely on the assumption that the bomb was introduced into the airport baggage system on Malta, and Operation Sandwood, which is examining evidence showing that the crime happened at Heathrow airport.  Something has to give.

The Lord Advocate has made it entirely clear that he gives credence to one position and one position only, the Malta origin theory. (...)

Operation Sandwood is due to submit its report in a few weeks time.  The dispute now centres on who will consider that report and decide whether charges should be brought as a result of the investigation.  As Crown Office personnel are among those accused, Justice for Megrahi strongly believes that the Crown Office should stand aside in favour of an independent prosecutor appointed from another jurisdiction.  The Lord Advocate however insists that the report will be considered by the Crown Office, merely conceding that he will not personally become involved in the process.

The Lord Advocate has fatally compromised his own position.  He has repeatedly attacked Justice for Megrahi in the most intemperate manner, publicly denouncing the original allegations as “defamatory, deliberately false and malicious” before he had even read them.  How or why the organisation he heads should not be excluded from the process on the same grounds has not been explained.  At a press conference on 16th March 2016 Mr. Len Murray, one of Scotland's most distinguished court practitioners and committee member of Justice for Megrahi, denounced Mr. Mulholland’s behaviour as scandalous and declared that his position was now untenable.

Nevertheless, this is perhaps not the fundamental issue.  If Operation Sandwood recommends criminal proceedings should follow as a result of their investigations, the law should take its course.  However, such a recommendation is by no means certain.  If there is insufficient evidence of wrongdoing to warrant any prosecutions, should the matter end there?

The reputation of Scotland’s criminal justice system rests on how this matter is handled.  A scandal of monumental proportions is brewing.  If the Operation Sandwood report confirms that the original Lockerbie investigation was completely off the rails, that it was looking for the bomb in the wrong airport, that it accused Libya on the basis of a fragment of printed circuit board that was never part of a device supplied to that country, and that it cajoled and bribed a witness to identify a man he’d never seen before as the purchaser of the clothes packed in the bomb suitcase, this cannot and must not be buried in top secret archives to spare the blushes of the Crown Office.

The answer to the most fundamental question about the Lockerbie disaster lies within the report being prepared by the Operation Sandwood detectives.  Where did the bomb that blew apart Pan Am flight 103 nearly six miles above the town begin its journey?  The people of Scotland, and the relatives of the dead, have the right to know.

[RB: This blog’s coverage of the four previous articles by Dr Kerr can be found here.]

Lord Advocate should issue pledge over report into Lockerbie allegations

[This is the headline over a letter from Iain McKie published in today’s edition of The Herald. It reads as follows:]

David Leask's glowing appreciation of Lord Advocate Frank Mulholland ("The Lord Advocate 'for all' has stayed true to beliefs", The Herald, March 26) rightly highlights his achievements in this high office once described by Lord McCluskey as Scotland's "watchdog for justice".

I have very positive memories of meeting him in the Crown Office when he graciously apologised to my daughter Shirley following the fingerprint fiasco. I felt that he was someone who listened, reflected and acted with integrity.

Since then however some have accused him of poor judgment in his response to the Andrew Coulson and bin lorry inquiries.

Perhaps more seminally, however,what will history make of a Lord Advocate who has joined the Scottish justice system in its 27 years of collective denial over the Lockerbie Pan Am tragedy which remains an abiding and indelible stain on that system?

How will history judge Scotland’s senior law officer who in 2012 allowed the Crown Office to label those who, in good faith, made nine criminal allegations against that authority and other prosecution witness involved in the investigation and subsequent trail of Abedelbaset al Megrahi as "conspiracy theorists" and the allegations themselves as "defamatory, unfounded, false and misleading"?

As we await the police report on these allegations being submitted to the Crown Office will Mr Mulholland take this opportunity to state publicly that this unprecedented bias and prejudice will not be allowed to influence any decisions that might be made on whether prosecutions should or should not follow?

Can he guarantee to the Scottish people that when the Police Scotland report is submitted neither he nor anyone associated with the Crown Office will have anything to do with the final decision whether to prosecute or not and that any such decisions made by any independent authority will not be open to be changed by the crown?

Should Mr Mulholland fail to make this undertaking then I suspect, in respect of Lockerbie at least, that history will judge him less than kindly and conclude that as Scotland’s "watchdog for justice" he has failed.

Anniversary of Sunday Herald publication of SCCRC Megrahi report

[It was on this date in 2012 that the Sunday Herald published the Scottish Criminal Cases Review Commission’s Statement of Reasons in the Megrahi case. The BBC News website carried the following report:]

Full details of the Lockerbie bomber's grounds for appeal have been published for the first time.

The Sunday Herald said it had decided to publish online the 821-page report from the Scottish Criminal Cases Review Commission (SCCRC) in the case of Abdelbaset al-Megrahi.

It follows assurances by the lord advocate that SCCRC members would not be prosecuted for publishing details.

The newspaper said it chose to publish on the grounds of public interest.

The move was welcomed by First Minister Alex Salmond, who had earlier called for the grounds for appeal to be published.

Last week Lord Advocate Frank Mulholland said that while it was an offence for the commission to disclose information obtained in its investigations, he considered "it would not be in the public interest to prosecute, given the selective publication" in the media.

The SCCRC took four years to consider the Lockerbie bomber's case.

It produced an 821-page document which referred Megrahi's conviction for the 1988 bombing back to the appeal court for the second time.

The document - called a statement of reasons - has never been published in full before, even though Megrahi abandoned his appeal shortly before he was allowed to return home to Libya in August 2009 because he was suffering from terminal prostate cancer. He is still alive.

In publishing the document, The Sunday Herald said: "We choose to publish it because we have the permission of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing, and because we believe it is in the public interest to disseminate the whole document.

"The Sunday Herald has chosen to publish the full report online today to allow the public to see for themselves the analysis of the evidence which could have resulted in the acquittal of Megrahi.

"Under Section 32 of the Data Protection Act, journalists can publish in the public interest. We have made very few redactions to protect the names of confidential sources and private information."

SCCRC chief executive Gerard Sinclair confirmed that the Herald document appeared to be a copy of its statement of reasons.

He said: "The commission has always been willing to publish this document, subject to the appropriate protection of individuals' rights, and to that end has been working for some time with the relevant parties, including Crown Office and both the Scottish and UK governments, to allow for publication of the outcome of our inquiries into Mr Megrahi's conviction."

"No further comment will be made by the commission at this time."

The Crown Office said it noted the publication by the Sunday Herald.

It said: "The commission was working to facilitate the publication with appropriate protection for all of the persons named in it taking account of their human rights (articles 2 and 8) and issues of confidentiality.

"The unauthorised publication by the Sunday Herald today does not deal with any of these issues which rightly constrain all public authorities by law."

The Crown Office said it had "become very concerned at the drip feeding of selective leaks and partial reporting from parts of the statement of reasons over the last few weeks in an attempt to sensationalise aspects of the contents out of context".

It continued: "Persons referred to in the statement of reasons have been asked to respond to these reports without having access to the statement of reasons and this is to be deplored.

"Further allegations of serious misconduct have been made in the media against a number of individuals for which the commission found no evidence. This is also to be deplored.

"In fact the commission found no basis for concluding that evidence in the case was fabricated by the police, the Crown, forensic scientists or any other representatives of official bodies or government agencies."

The Crown Office also said it was "not appropriate or helpful to seek to try a case in the media".

It added: "The only place to determine guilt or innocence is in a court of law. The trial court accepted that this was an act of State sponsored terrorism and that Megrahi did not act alone.

"Investigations will continue to bring the others involved in the murder of 270 persons to justice.

"As a result the Crown will be making no further comment on the evidence in the case and on the statement of reasons."

Mr Salmond said: "I welcome the publication in full of this report, which is something that the Scottish government has been doing everything in our powers to facilitate.

"I especially welcome the fact that it offers a full account of the SCCRC's deliberations rather than the partial accounts which have appeared in the media in recent weeks."

He added: "This report provides valuable information, from an independent body acting without fear or favour, and while we can not expect it to resolve all the issues in the Lockerbie case, it does however lay the basis for narrowing the areas of dispute and in many ways is far more comprehensive than any inquiry could ever hope to be.

"The Lockerbie case of course remains an open criminal investigation, and while the only place to determine guilt or innocence is in a court of law, the SCCRC is a valuable body which is itself part of the Scottish criminal justice system."

[RB: The Sunday Herald’s own article announcing its publication of the report can be read here; and the report itself can be read here.]

Crown Office musical chairs

Posted from Istanbul Atatürk Airport:

In the course of my great trek from the Roggeveld Karoo to Edinburgh, I have belatedly discovered (a) that the Crown Agent, the civil service head of the Crown Office and Procurator Fiscal service, has resigned and (b) that the ministerial head of that department, the Lord Advocate, Frank Mulholland QC, has announced that he will demit office after the Scottish Parliament elections to be held on 5 May 2016. 

Have the Megrahi case and the imminent submission by Police Scotland of the Operation Sandwood report on Justice for Megrahi’s nine allegation of criminal misconduct in the Lockerbie investigation, prosecution and trial any bearing on these departures? Who knows? And I have no doubt that the Crown Office would scathingly reject the suggestion. (Indeed, I see that it has done so.) Iain McKie makes some highly pertinent comments here.

As far as the replacement Lord Advocate is concerned, what I wrote when Mr Mulholland was appointed in 2011 is equally applicable to his successor:

“This appointment is not unexpected, but it is to be regretted. Virtually the whole of Frank Mulholland's career has been spent as a Crown Office civil servant. This is not, in my view, the right background for the incumbent of the office of Lord Advocate, one of whose functions has traditionally been to bring an outsider's perspective to the operations and policy-making of the department. Sir Humphrey Appleby was an outstanding civil servant of a particular kind, but his role was an entirely different one from that of Jim Hacker and no-one would have regarded it as appropriate that he should be translated from Permanent Secretary of the Department of Administrative Affairs to Minister (or, indeed, from Secretary of the Cabinet to Prime Minister). 

“The appointment by the previous Labour administration in Scotland of Elish Angiolini as Solicitor General and then as Lord Advocate was a mistake, both constitutionally and practically, as was her retention as Lord Advocate by the SNP minority government (though the political reasons for her re-appointment were understandable). It is sad that the new majority SNP Government has not taken the opportunity to return to the wholly desirable convention of appointing an advocate or solicitor from private practice to fill the office of Lord Advocate. The much-needed casting of a beady eye over the operations of the Crown Office is not to be expected from this appointee. This is deeply regrettable since such scrutiny is long overdue.”

The present Solicitor General for Scotland, Lesley Thomson, like Frank Mulholland, was appointed from within the ranks of Crown Office staffers. It would be a grave mistake for her to be promoted to Lord Advocate.