An anniversary ... just a day late

14 March 2008 marks the sixth anniversary of the dismissal of Abdelbaset Megrahi's appeal against conviction. That appeal was unsuccessful because his then lawyers did not ask the Appeal Court to address the correct questions: see the very first post on this blog (section headed "The Appeal").

In the appeal which is currently wending its way -- painfully slowly -- through the Scottish criminal justice system, the correct issues have been raised, and the result should be the overturning of Mr Megrahi's conviction.

Alternative take: Dr Jim Swire, father of Lockerbie victim Flora Swire

This is the title of an article in today's issue of The Scotsman. It starts:

"As the Lockerbie case progressed, the prosecution found itself in possession in 1996 of material that Mr [David] Miliband now claims cannot be divulged to the defence.

"This occurred originally, it is said, because at the time, Scotland's Lord Advocate was ex officio a member of the UK government.

"Mr Miliband has now taken out Public Interest Immunity certificates (PIIs) to 'protect' the documents from release to..."

The article is in the premium (ie pay to view) section of The Scotsman's website, and so I am not in a position to quote more of it or to summarize its contents since I resolutely refuse to pay for access to the newspaper (a) because I am a Scot and (b) because this once-great newspaper has in recent times declined disastrously.

The full article (if you are a subscriber) can be read here.
The readers' comments are of interest, even if you cannot access the full text of Dr Swire's article.

Dr Swire on the PII decision

Dr Jim Swire has a letter about the PII issue in today's issue of The Herald. It reads:

"It is hard to see how the Westminster Foreign Secretary can justify his attempt to 'protect'documents with Public Interest Immunity (PII) certificates on the grounds that they would harm the UK's relations with other nations, and that their release to the defence in the Lockerbie case would disadvantage the very public PIIs are designed to serve.

"It appears these documents were supplied to the prosecution (and Dumfries and Galloway police) about 12 years ago, and concern the truth about a terrorist atrocity of nearly 20 years ago. It also appears they were considered by the Scottish Criminal Cases Review Commission (SCCRC) to be part of their reason for considering the original trial and appeal might have been unsafe. The Foreign Secretary must realise that the longstanding release of them to the prosecution, but not the defence, wrecks any chance of the next appeal being considered fair. Coupled with their inclusion in the SCCRC's referral back to appeal, this grossly selective restriction can only destroy any remaining vestige of faith in the freedom and independence of Scotland's judicial system.

"No doubt the defence will continue to fight for the documents to be released to them. Meanwhile, the use of the PII certificates will be seen outside these islands as at best a delaying tactic by Whitehall, and at worst a calculated attempt to ensure Mr Megrahi does not get a fair appeal and the relatives are denied the truth about the murder of their loved ones, as are the the public, while Scotland's independent criminal law is seen as enslaved to Britain's politicians."

For the full text, and readers' comments, see
http://www.theherald.co.uk/features/letters/display.var.2105464.0.No_justification.php

The Herald on the PII decision

Lucy Adams has a comprehensive article on the Appeal Court's ruling on the PII issue in today's issue of The Herald. As she makes clear, all that the court decided yesterday was that it was competent for the Advocate General to claim PII on behalf of the UK Government. There will now be a further hearing on the substantive issue of whether the document should be disclosed in the interests of justice, notwithstanding the UK Government's desire for the document to be withheld. The full article can be read here.

The Appeal Court's decision on PII

The Criminal Appeal Court has rejected the argument by Mr Megrahi's legal team that it is incompetent for the Advocate General for Scotland on behalf of the UK Government to claim public interest immunity in Scottish legal proceedings where the Lord Advocate declines to do so. The court held that, under the law governing devolution to Scotland, it must be permissible for a UK Government departments to claim PII in Scottish proceedings, just as the Lord Advocate could do on their behalf prior to devolution. For the full text of the court's judgment, see
http://www.scotcourts.gov.uk/opinions/2008HCJAC15.html

This is the outcome that I predicted in respect of this issue: see
http://lockerbiecase.blogspot.com/2008/02/third-procedural-hearing-much-as.html

The court has ordered further argument on whether it should compel disclosure of the document notwithstanding the UK Foreign Secretary's claim of PII. A possibility that has been canvassed is that it should be handed over, not to Megrahi's lawyers, but to a specially appointed independent counsel. This is a mechanism sometimes adopted in England in terrorism cases, but it has not heretofore been resorted to in Scotland.

Here are the reports about the court's decision from the websites of The Scotsman and the BBC:
http://news.scotsman.com/latestnews/Appeal-setback-for-Lockerbie-bomber.3856346.jp

http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/7283139.stm

Lockerbie: Truth - the final casualty

This is the title of an article just published on the website of the Mathaba News Agency, an organisation which concentrates on material relevant to North Africa. The article profiles some of the principal characters in the Lockerbie story, and also highlights the Westminster Government's "interference" in the Scottish judicial process, particularly in relation to its objections to disclosure of the mysterious foreign document relating to timers. See
http://www.mathaba.net/rss/?x=584537

The public interest immunity decision

I am reliably informed that the Criminal Appeal Court's decision on the public hinterest immunity (PII) plea taken by the UK Government (in relation to the document from a foreign country relating to timers) will be released tomorrow (Friday, 7 March). This was the issue debated at the third procedural hearing held on 20 February. See
http://lockerbiecase.blogspot.com/2008/02/third-procedural-hearing.html
and
http://lockerbiecase.blogspot.com/2008/02/third-procedural-hearing-much-as.html

The court has to decide (a) whether it is competent for the Advocate General for Scotland (the UK Government's Scottish legal adviser) to claim PII in Scottish criminal proceedings when the Lord Advocate (Scotland's public prosecutor and a minister in the Scottish Government) has chosen not to claim it; and (b) if it is competent, whether the public interest in "national security", which the UK Government is asserting would be affected if the document were disclosed, outweighs the public interest in the administration of justice which requires that accused persons should have access to all material that could assist their case.

There will also on Friday be a further brief procedural hearing at which Mr Megrahi's legal team will raise the issue of the Crown's refusal to allow them access to the productions used at the original trial; and the issue of the Crown's contention (in the face of appellate decisions to the contrary) that the new appeal should be confined to those issues in respect of which the Scottish Criminal Cases Review Commission (SCCRC) decided that there might have been a miscarriage of justice. In my account on this blog on 20 December 2007 of the second procedural hearing where this issue was first raised, I commented:

"Two other matters were discussed at the hearing. The first was the scope of the appeal. The Crown had earlier stated that it would consider asking the court to exercise its discretion to refuse to allow to be argued all (or some) of the Grounds of Appeal that related to matters that had been investigated by the SCCRC but rejected by that body. Today Mr Clancy went considerably further: the Crown now wished to argue that, as a matter of law, the Appeal Court was not permitted to hear Grounds of Appeal that had not been accepted by the SCCRC. That is a legal issue that has already been decided by a three-judge bench who held in 2004 that there was no such restriction on the Grounds of Appeal that could be heard. Nothing daunted, Mr Clancy asked for a five-judge court to be convened to reconsider the matter. The court ordered the Lord Advocate to submit within one month a written note setting out her legal arguments and appointed the appellant to submit written answers within one month thereafter. A five-judge court would then be convened to hear oral argument."

Lockerbie's plans for 20th anniversary

The BBC Scotland news website is running the following article about Lockerbie's plans for the twentieth anniversary of the disaster on 21 December 2008:

'Community groups in Lockerbie are planning a "low key" approach to the 20th anniversary of its air disaster.

'A total of 270 people were killed when Pan Am flight 103 blew up above the Dumfries and Galloway town on 21 December 1988.

'Local organisations said they hoped events would "remember the past" but also be "focused on the future".

'Residents have been asked to make their suggestions for commemoration events to the town's district council.

'Proposals can also be left at the town hall.

'The anniversary falls on a Sunday this year and an ecumenical service is planned by local churches.

'All commemoration sites around the town will have extended opening hours and a symbolic quilt has been commissioned.

'Lockerbie Academy is also organising a number of events with a particular focus on the links between Lockerbie and Syracuse University which lost 35 students in the disaster.'

See http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/7279203.stm

Andrew Fulton: is he a professor?

The Sunday Herald reports that Andrew Fulton's CV, issued to the press when he was appointed chairman of the Conservative Party in Scotland, claims that he is a visiting professor at Glasgow University's School of Law. The university denies this. The article reads in part:

"The new chairman of the Scottish Tories has become embroiled in a row over his CV after false claims were made about his academic credentials.

"Andrew Fulton, a former MI6 spy who was appointed by the Conservatives on Friday, was hailed as a 'visiting professor' at Glasgow University's school of law.

"But a spokesman for the university rebutted the claims, saying: 'Mr Fulton is not associated with the University of Glasgow's law school and is not entitled to call himself a professor.' Fulton, 64, took up the post as the Scottish Tories' top official last week and received endorsements from Conservative leaders David Cameron and Annabel Goldie.

"The biography supplied to the media claimed he had read law at Glasgow University and was 'now visiting professor at his alma mater's school of law'.

"But Fulton, who was a government diplomat for 30 years, was only briefly a visiting professor at the university between 1999 and 2000. He worked in the university's law school at the Lockerbie Trial Briefing Unit until he was dropped from his post when he was unmasked as an ex-spook.

"Visiting professors lose their title after leaving a university, but the academic status symbol has somehow followed Fulton in his business career."

The full article can be read here.

Andrew Fulton

A member of Glasgow University's Lockerbie Trial Briefing Unit (which provided press briefings during the trial at Zeist) who resigned when his connections with the UK Secret Intelligence Service were revealed, has been appointed chairman of the Conservative Party in Scotland. Today's issue of The Herald contains the following:

“A former MI6 spy appointed as Scottish Tory chairman yesterday insisted the party could recover from two decades of "fallow" results at the next General Election.

“Andrew Fulton, who has spent more than 30 years in senior positions in the secret service, claimed the Conservatives had an opportunity to catch the SNP on the hop at Westminster and exploit the current disarray of Labour and Liberal Democrats.…

“The former agent, who was born in Rothesay on the Isle of Bute, also brings his own baggage to the post: his unmasking as an MI6 operative led to him stepping down in 2000 as an adviser to Glasgow University's briefing unit which advised the media about the Lockerbie bombing trial amid speculation - which he strongly denied - that he had a competing agenda.

“Last year he became the first acknowledged former spy to join a listed British company when he was appointed as an adviser to the Armor Group, which provides security services to national governments.”

Read the full article here:
http://www.theherald.co.uk/politics/news/display.var.2085939.0.Fallow_decades_are_over_says_new_Scots_Tory_chairman.php

Lockerbie "a dump"

For the past few days the Scottish newspapers (and some UK ones) have been running the story of SNP MSP Christopher Harvie's description of Lockerbie as "a dump" with two-thirds of shops derelict, and shell-suited drunken youths rampaging in the streets. Professor Harvie has partially recanted but the row rumbles on. Here is an article on the subject from one of the local newspapers, The Dumfries & Galloway Standard.

As someone born and brought up in the town, and who last visited it in November 2007, I can testify that Harvie is grossly exaggerating. The town has attractive buildings, the vast majority of the commercial premises are occupied (and those few which are not are certainly not derelict) and the youth are no more prone to drunken hooliganism than the youth of other Scottish towns and cities (which is not, perhaps, saying too much).

Statement by Professor Köchler

Patrick Haseldine has kindly drawn my attention to the following statement issued on 25 February by Professor Hans Köchler:

Statement by Dr Hans Koechler, International Observer, appointed by the United Nations, at the Scottish Court in the Netherlands (Lockerbie Trial), on the withholding of supposedly secret evidence from the Defence by order of the Government of the United Kingdom

Upon conclusion of an information and consultation visit on international law issues to the Asia-Pacific region, Dr Hans Koechler today issued the following statement on the decision of the United Kingdom’s Foreign Secretary not to allow the disclosure of a document, provided by a “Foreign Government” that is related to the electronic timer device which supposedly triggered the explosion of a bomb on board Pan Am Flight 103:

1. The continued withholding of evidence related to the case of Abdelbaset Ali Mohmed Al Megrahi makes a new appeal actually impossible. Should the document in question not be made available, criminal proceedings under Scots Law will have to be terminated.
2. The behaviour of the British Government is in contravention to the commitment it made vis-à-vis the United Nations Organization prior to the adoption of Security Council resolution 1192 (1998) to enable a fair and independent trial of the two Libyan suspects in the Lockerbie case under Scots Law.
3. The invocation of “Public Interest Immunity” (PII) – unprecedented in the history of Scottish criminal justice – is tantamount to political interference into the Appeal Court’s conduct. It is obvious that criminal proceedings cannot be fair if the Defence is denied access to a piece of evidence (document) which has been revealed to the Prosecution.
4. Under the highly politicized circumstances of the Lockerbie Trial, the issuing of a PII certificate by the Foreign Secretary of the United Kingdom appears to be a rather desperate measure to influence the conduct of the court in a manner favourable to the British Government; it further strains the constitutional relations between Scotland and the United Kingdom.
5. The separation of powers between the Executive and Judiciary is a basic characteristic of the rule of law. In the present case, this principle is violated because of the outright interference of the British Government in a matter of the Scottish Judiciary.
6. The British Government’s interference makes Devolution of authority in matters of Criminal Justice to Scotland entirely meaningless. What is the meaning of “Devolution” if a Scottish Court is prevented from operating according to its own rules? Scots Law is not to be administered under the terms of a Protectorate. The crucial question will now be whether the Scots will be able to assert their (Constitutional) independence in Devolved matters.
7. It is to be hoped that the Scottish Judges will uphold the independence of the Judiciary and will reject the British Government’s interference. A court of law is transformed into a political body should the Judges allow this kind of interference.
8. The persistent refusal of the UK Government to allow the disclosure of vital evidence to the Defence points into the direction of a cover-up. In the context of the irregularities at the Lockerbie trial and appeal in the Netherlands (described in the undersigned’s reports of 2001 and 2002), this development demonstrates the need for an independent investigation under a United Nations mandate – especially since the Scottish Criminal Cases Review Commission has declared that a “miscarriage of justice” may have occurred.
9. The convicted Libyan national has a right to a genuine judicial review of his verdict outside the confines of international realpolitik. In June 2007 the Scottish Criminal Cases Review Commission referred his case back to the High Court of Justiciary for a second appeal. If appeal proceedings are now made impossible due to the British Executive’s interference, Mr al-Megrahi will be denied his right to fair trial under the European Convention on Human Rights and Fundamental Freedoms.

Los Angeles, 25 February 2008
Dr Hans Koechler

[The official version of the statement, with typographical errors corrected, is to be found at http://i-p-o.org/Lockerbie-statement-koechler-25Feb08.htm]

Projected mechanism to avoid Scotland-UK conflicts

The Scotsman today reports that new committees involving ministers from the Scottish and UK Governments are to be set up to avoid conflicts and misunderstandings such as that which arose recently over the application to Abdelbaset Megrahi of the UK's new prisoner transfer agreement with Libya. The article reads in part:

"A new cross-border body is to be created to settle disputes between Holyrood and Westminster, The Scotsman has learned.

"Ministers are drawing up plans for a joint committee to arbitrate between the devolved administrations and the UK government on domestic matters.

"The move is intended to clear the air between London and Edinburgh, amid an increasing number of acrimonious disputes between the Scottish Government and the Labour administration at Westminster since Alex Salmond became First Minister last May.

"The most serious was in June last year when Mr Salmond accused Tony Blair, prime minister at the time, of ignoring the Scottish legal system by doing a deal with Libya over the possible transfer of the Lockerbie bomber to the North African country.

"And just this week, Jacqui Smith, the Home Secretary, provoked an angry reaction from Scottish ministers on two separate issues.

"First, Holyrood ministers called on Ms Smith to clarify her anti-terrorism plans amid warnings that the Home Secretary was preparing to trample on the Scottish legal system.

"Then she announced plans to deprive drug addicts of their benefits, without consulting the Scottish Government.

"Privately, Scottish ministers were furious about both incidents, believing that the Home Office pays little or no attention to Scots law and devolved issues when drawing up its policy plans."

For the full text of the lengthy article, see
http://news.scotsman.com/latestnews/Toplevel-meetings-will-open-door.3823911.jp

Ludwig de Braeckeleer -v- Richard Marquise

OhMyNews International today features an article by Dr De Braeckeleer entitled “Lockerbie: FBI investigator debates OMNI reporter” which takes the form of a debate between him and Richard A Marquise, who headed the FBI investigation into the destruction of Pan Am 103, about the views expressed by Dr De Braeckeleer in his earlier article “Lockerbie: chronicle of a death foretold” (see http://english.ohmynews.com/articleview/article_view.asp?menu=c10400&no=381652&rel_no=1 and http://lockerbiecase.blogspot.com/2008/02/lockerbie-chronicle-of-death-foretold.html). The article makes fascinating reading, and anyone interested in the Lockerbie case will have to read and absorb it. The full text of the debate is at
http://english.ohmynews.com/ArticleView/article_view.asp?menu=A11100&no=381904&rel_no=1&back_url=.

I make no secret of the fact that, in my view, no matter how pure and thorough the investigation into the Lockerbie tragedy may have been, the evidence presented at the trial simply did not warrant a conviction being returned against Abdelbaset Megrahi. See http://lockerbiecase.blogspot.com/2007/07/lockerbie-satisfactory-process-but.html
I remain convinced that this view will be vindicated in the new appeal that is currently under way.

Miliband has made Lockerbie appeal a mockery of justice

This is the headline over an editorial in today’s issue of The Sunday Herald. The paper is (justifiably) scathing about the UK Foreign Secretary’s having signed a public interest immunity (PII) certificate in an attempt to prevent disclosure of the document (relating to timers) that has been in the hands of the Crown since 1996 (before the Lockerbie trial) but which has not been divulged to the defence (as the Scottish Criminal Cases Review Commission believes it should have been). It expresses the view that it is outrageous for the UK Government to seek to prevent the Scottish Appeal Court having access to the foreign document even though the SCCRC took the view that a verdict reached in ignorance of it might have amounted to a miscarriage of justice. See
http://www.heraldscotland.com/default_content/12770332.Miliband_has_made_Lockerbie_appeal_a_mockery_of_justice/

The Sunday Herald also has an article on the same subject by John Bynorth. Its principal focus is the contrast between the Scottish Government’s volubility in criticizing the UK Government over the prisoner transfer issue and its silence when confronted by the UK Government’s attempt to interfere in Scottish criminal proceedings by denying the defence and the court access to a document whose disclosure an independent body (the SCCRC) has indicated is necessary for justice to be done. Tony Kelly (Abdelbaset Megrahi’s solicitor) is extensively quoted, as are Dr Jim Swire and myself. See
http://www.heraldscotland.com/default_content/12767528.Anger_over__apos_interference_apos__in_Lockerbie_appeal/