Ed's Blog City has a comment, under the above headline, on yesterday's post "Justice delayed...". It reads:
"Professor Robert Black QC has today voiced his dissatisfaction at the length of time the appeal of Megrahi is taking through the Scottish court, and the obstructive and hindering tactics employed by the crown throughout the appeal since the recommendations made by the Scottish Criminal Cases Review Commission a year ago.
It would appear that there are in what we term our 'democratic' and 'free' society, groups and individuals who are accountable to no-one. We are surrounded by liars, hypocrites and those who say they follow the rule of law, while doing whatever they damn well like if the desired result is the conclusion they would seek.
It is absolutely clear, to even the most docile, that we have an innocent man languishing in a Scottish Prison, put there by individuals who have performed every deceitful illegal manoeuvre available, manipulated the due course of Law, suppressed vital and legitimate evidence and capitulated to the subterfuge of international Politics and Governments - all paid for by the UK taxpayer.
The crown in the Megrahi appeal, under instruction of the UK government, have created a ‘National Security’ which only serves to prohibit ordinary people from the truth under the pretence that it is in the publics benefit not to know, and provides those with power, authority and those attuned sympathetically such as judges and lawyers ‘on the inside’ with the cloak of protection to carry out the very injustices and hidden agendas we have witnessed."
Friday 18 July 2008
Thursday 17 July 2008
Justice delayed...
More than a year has passed since the Scottish Criminal Cases Review Commission referred Abdelbaset Megrahi’s case back to the Criminal Appeal Court on the basis that his conviction might have amounted to a miscarriage of justice. More than nine months have passed since the first procedural hearing in the new appeal was held. More than six months have passed since the appellant’s full written grounds of appeal were lodged with the court.
Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?
The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze isn’t in the book, have been asking the court to rewrite the book to insert it). The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done nothing meaningful to curb it. This must end. The delay is becoming scandalous. The reputation of Scotland’s criminal justice system is being further tarnished in the eyes of the world.
And all the while a man languishes in Greenock Prison. I have never made any bones about my view that the conviction of Abdelbaset Megrahi on the evidence led at the Scottish Court in the Netherlands is the worst Scottish miscarriage of justice in the past one hundred years, indeed since the conviction of Oscar Slater. But even those who do not share my views, or who are neutral on the issue, would surely accept that the delay in bringing the new appeal to a hearing on the merits is beginning to look cruel and unconscionable.
It is up to the judges to start cracking the whip. The words of Francis Bacon in his essay “Of Judicature” are perhaps worth recalling:
“A judge ought to prepare his way to a just sentence, as God useth to prepare his way, by raising valleys and taking down hills: so when there appeareth on either side an high hand, … cunning advantages taken, combination, power, … then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.”
Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?
The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze isn’t in the book, have been asking the court to rewrite the book to insert it). The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done nothing meaningful to curb it. This must end. The delay is becoming scandalous. The reputation of Scotland’s criminal justice system is being further tarnished in the eyes of the world.
And all the while a man languishes in Greenock Prison. I have never made any bones about my view that the conviction of Abdelbaset Megrahi on the evidence led at the Scottish Court in the Netherlands is the worst Scottish miscarriage of justice in the past one hundred years, indeed since the conviction of Oscar Slater. But even those who do not share my views, or who are neutral on the issue, would surely accept that the delay in bringing the new appeal to a hearing on the merits is beginning to look cruel and unconscionable.
It is up to the judges to start cracking the whip. The words of Francis Bacon in his essay “Of Judicature” are perhaps worth recalling:
“A judge ought to prepare his way to a just sentence, as God useth to prepare his way, by raising valleys and taking down hills: so when there appeareth on either side an high hand, … cunning advantages taken, combination, power, … then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.”
Wednesday 16 July 2008
Damp squib
Today's procedural hearing (before Lord Justice General Hamilton, Lord Eassie and Lord Clarke) decided nothing of substance. The Crown and the Advocate General (representing the UK Government) had been led to believe by a communication from the court that the hearing would be purely administrative and, in the absence on holiday of their principal counsel, were not in a position to argue the merits of the appellant's petition for access to the productions used in the original trial. Accordingly, the matter was continued to 20 August when it will be combined with a hearing already fixed to consider a further petition for access to evidence. Maggie Scott QC for Megrahi had criticised the answers lodged by the Crown to her petition for not specifying the grounds upon which it was contended that access to the trial productions should be refused. The Lord Justice General said that the court recognised, and sympathised with, the appellant's frustration at the Crown's delays and his concern about the lack of specification in the Crown's answers to the petition. The court accordingly ordered a fourteen day period of written adjustment of the petition and answers to enable the position to be clarified.
The BBC News account of the proceedings can be read here.
As well as the next public procedural hearing on 20 August, there is to be a private hearing on 19 August involving only the Crown and the Advocate General. By that time the judges will have read and absorbed the mystery document in respect of which the UK Government has claimed public interest immunity. This is the very first time of which I am aware in Scottish legal history that a hearing has been convened in a criminal appeal from which the appellant and his legal representatives have been excluded. It should also be the last.
The BBC News account of the proceedings can be read here.
As well as the next public procedural hearing on 20 August, there is to be a private hearing on 19 August involving only the Crown and the Advocate General. By that time the judges will have read and absorbed the mystery document in respect of which the UK Government has claimed public interest immunity. This is the very first time of which I am aware in Scottish legal history that a hearing has been convened in a criminal appeal from which the appellant and his legal representatives have been excluded. It should also be the last.
Monday 14 July 2008
The Charles McKee/Monzer al-Kassar theory
The aangirfan blog today publishes a lengthy article flowing from the piece in yesterday's Sunday Express. It favours the "CIA operation against Charles McKee" explanation for the destruction of Pan Am 103. The article contains a useful list of Lockerbie dramatis personae (but once again repeats that defence counsel Bill Taylor QC has become a sheriff: he has not, but his instructing solicitor, Alistair Duff, has). The full article can be read here.
Sunday 13 July 2008
Sixth procedural hearing
A further procedural hearing is to be held on Wednesday, 16 July. I understand that the purpose of the hearing is to consider a petition by Mr Megrahi's lawyers for an order permitting them access to the productions used in the original trial. This petition is apparently opposed by the Crown. It will be most interesting to hear on what basis the Crown argues that the defence should be denied access to this material.
This issue was first ventilated at the second procedural hearing on 20 December 2007. Here is how I then reported what was said:
'The final issue raised was the problem the appellant's legal advisers have been encountering in gaining access to the productions used in the original trial. Dumfries and Galloway Police (who are the custodians of most of them) had apparently been advised by the Crown that the appellant could not have access without an order of the court. Mr Clancy indicated that the Crown did not wish to be obstructive and that he was sure that the matter could be resolved amicably. Ms Scott's rejoinder was that the Crown had been nothing but obstructive. The court indicated that if any further problems were encountered in this regard the matter should be brought back before the court.'
This issue was first ventilated at the second procedural hearing on 20 December 2007. Here is how I then reported what was said:
'The final issue raised was the problem the appellant's legal advisers have been encountering in gaining access to the productions used in the original trial. Dumfries and Galloway Police (who are the custodians of most of them) had apparently been advised by the Crown that the appellant could not have access without an order of the court. Mr Clancy indicated that the Crown did not wish to be obstructive and that he was sure that the matter could be resolved amicably. Ms Scott's rejoinder was that the Crown had been nothing but obstructive. The court indicated that if any further problems were encountered in this regard the matter should be brought back before the court.'
Scottish Sunday Express article
In today's Scottish Sunday Express there is an article by Ben Borland headlined "Lockerbie bomber to be freed". It tells of my speculation that Abdelbaset Megrahi could soon be freed because, if it is held that the mysterious document that the UK Government insists should not be disclosed, cannot be divulged to the defence, the Lord Advocate (who has said that, if it were up to her, the document would be handed over) might decide that the Crown could not, in conscience, proceed with opposing an appeal that would not, in the circumstances, be seen to be fair to Megrahi. The Sunday Express story in places hardens what was simply speculation on my part into something approaching fact. The article reads:
‘THE Lockerbie bomber is set to be sensationally freed on a “technicality” because of a controversial legal stalemate involving top secret documents.
Abdelbaset Ali Mohmed Al Megrahi, 56, could even be released before the end of summer because of Westmin-ster’s refusal to make public the papers relating to the 1988 disaster.
Professor Robert Black – who helped orchestrate the Lockerbie trial – insists the Libyan, currently serving life in Greenock Prison, will be returned to his family long before the 20th anniversary of the disaster in December this year.
Scotland’s top judges are still deciding whether or not to release the secret document, which reportedly points the finger of blame at Iran for the atrocity that killed 270 people.
Earlier this year, Foreign Secretary David Miliband signed a Public Interest Immunity certificate to prevent its content being revealed, saying it could harm the national interest.
Speculation is now growing the judges will rule it should remain classified, forcing Lord Advocate Eilish Angiolini to free Megrahi because he
cannot have a fair appeal.
It would also avoid the need to hear any new evidence that may prove there was a miscarriage of justice or even a deliberate cover-up by the US and UK authorities.
Prof Black told the Sunday Express: “If the court says this document can’t be released in the normal way to the defence, then it is distinctly possible the Lord Advocate will say, if it cannot be seen that this appeal process is fair and open, it is better to say we will no longer oppose this appeal. Not because we believe Mr Megrahi is innocent, but because the appeal cannot be seen to be fair.”
The retired law professor added that such a “cynical” outcome would also avoid any renewed calls for a public inquiry.
The document is reportedly a German intelligence debriefing of an Iranian defector, who claimed Tehran paid a Palestinian terror cell to carry out the bombing, after the US accidentally shot down an Iranian passenger jet, in 1988.
Dr Jim Swire, whose daughter Flora was killed in the attack, yesterday said a full hearing would expose the “appalling collusion” of Britain and America.
He added: “There may be an attempt to remove the awkward problem of Megrahi by allowing him to return home and to remove the possibility of a public examination of the evidence.”
Such a move would be “a bit of a downer” to those still seeking the truth, Dr Swire added.'
‘THE Lockerbie bomber is set to be sensationally freed on a “technicality” because of a controversial legal stalemate involving top secret documents.
Abdelbaset Ali Mohmed Al Megrahi, 56, could even be released before the end of summer because of Westmin-ster’s refusal to make public the papers relating to the 1988 disaster.
Professor Robert Black – who helped orchestrate the Lockerbie trial – insists the Libyan, currently serving life in Greenock Prison, will be returned to his family long before the 20th anniversary of the disaster in December this year.
Scotland’s top judges are still deciding whether or not to release the secret document, which reportedly points the finger of blame at Iran for the atrocity that killed 270 people.
Earlier this year, Foreign Secretary David Miliband signed a Public Interest Immunity certificate to prevent its content being revealed, saying it could harm the national interest.
Speculation is now growing the judges will rule it should remain classified, forcing Lord Advocate Eilish Angiolini to free Megrahi because he
cannot have a fair appeal.
It would also avoid the need to hear any new evidence that may prove there was a miscarriage of justice or even a deliberate cover-up by the US and UK authorities.
Prof Black told the Sunday Express: “If the court says this document can’t be released in the normal way to the defence, then it is distinctly possible the Lord Advocate will say, if it cannot be seen that this appeal process is fair and open, it is better to say we will no longer oppose this appeal. Not because we believe Mr Megrahi is innocent, but because the appeal cannot be seen to be fair.”
The retired law professor added that such a “cynical” outcome would also avoid any renewed calls for a public inquiry.
The document is reportedly a German intelligence debriefing of an Iranian defector, who claimed Tehran paid a Palestinian terror cell to carry out the bombing, after the US accidentally shot down an Iranian passenger jet, in 1988.
Dr Jim Swire, whose daughter Flora was killed in the attack, yesterday said a full hearing would expose the “appalling collusion” of Britain and America.
He added: “There may be an attempt to remove the awkward problem of Megrahi by allowing him to return home and to remove the possibility of a public examination of the evidence.”
Such a move would be “a bit of a downer” to those still seeking the truth, Dr Swire added.'
Friday 11 July 2008
The wreckage of Pan Am 103
Tuesday 8 July 2008
More on alleged Iranian responsibility for Lockerbie
Here is a lengthy story (including interview and podcast) about an alleged Iranian CIA operative or asset who claims that Iran was responsible for the destruction of Pan Am 103.
Monday 7 July 2008
A journalist remembers
Journalist Arthur MacDonald, writing in the Gulf Daily News (Bahrain) draws parallels between the Piper Alpha disaster and the destruction of Pan Am 103 over Lockerbie, both in 1988. Here is what he says about Lockerbie:
'The Lockerbie disaster was triggered by a bomb, planted on the plane by terrorists in Malta.
One of my happier memories of covering this awful event was speaking to Press officer from the US Central Intelligence Agency, who, when I first called them assured me they did not know who killed John F Kennedy, even before I asked them.
How did they know I was going to pose this question? All you Limeys ask that, I was told.
At the time, the UK officially did not have a secret service so instead of talking to MI5 or MI6, journalists were left to deal through PC Plod from Glasgow.
Exactly when everyone decided Libya was responsible for this outrage I can't actually remember. Mr Gadaffi seemed to be everybody's whipping boy at the time, so that could explain it.
What I do know is that none of the journalists I worked with on the story ever believed that Libya was guilty. Nor did most of the victims' relatives.
Today only one man has been convicted of being involved in what was the worst airline terrorist attack before 9/11.
Abdelbaset Ali Mohammed Al Megrahi has been rotting in a Scottish jail since his show trial at Camp Zeist in the Netherlands. He was simply accused of being a Libyan intelligence officer and that was that.
Anyone who knows anything about what happened to Pan Am flight 103 knows that delivering the bomb onto the aircraft was a highly complex operation and it was certainly not carried out by one person.
It was almost certainly not carried out by Libyans either.
But just as the people who were behind the Piper Alpha disaster have never been brought to justice, neither have the people responsible for Lockerbie.
And for some reason I just don't understand, no one is bothering to do anything about this.'
The full article can be read here.
'The Lockerbie disaster was triggered by a bomb, planted on the plane by terrorists in Malta.
One of my happier memories of covering this awful event was speaking to Press officer from the US Central Intelligence Agency, who, when I first called them assured me they did not know who killed John F Kennedy, even before I asked them.
How did they know I was going to pose this question? All you Limeys ask that, I was told.
At the time, the UK officially did not have a secret service so instead of talking to MI5 or MI6, journalists were left to deal through PC Plod from Glasgow.
Exactly when everyone decided Libya was responsible for this outrage I can't actually remember. Mr Gadaffi seemed to be everybody's whipping boy at the time, so that could explain it.
What I do know is that none of the journalists I worked with on the story ever believed that Libya was guilty. Nor did most of the victims' relatives.
Today only one man has been convicted of being involved in what was the worst airline terrorist attack before 9/11.
Abdelbaset Ali Mohammed Al Megrahi has been rotting in a Scottish jail since his show trial at Camp Zeist in the Netherlands. He was simply accused of being a Libyan intelligence officer and that was that.
Anyone who knows anything about what happened to Pan Am flight 103 knows that delivering the bomb onto the aircraft was a highly complex operation and it was certainly not carried out by one person.
It was almost certainly not carried out by Libyans either.
But just as the people who were behind the Piper Alpha disaster have never been brought to justice, neither have the people responsible for Lockerbie.
And for some reason I just don't understand, no one is bothering to do anything about this.'
The full article can be read here.
Sunday 6 July 2008
Scottish newspapers accused of shirking investigative duties
Today's issue of the Sunday Herald contains an article about a letter written by Professor Hans Köchler complaining about the supine attitude of the Scottish press over the Lockerbie miscarriage of justice. The article reads in part:
'When readers are asked what they want more of in newspapers the answer is often great, jaw-dropping scoops. Yet investigative reporting - the discipline behind many such stories - is increasingly seen by many newspaper executives as too expensive to bother with.
'This is certainly the view of Professor Hans Kochler [sic], the former UN monitor of the Lockerbie trial, who has attacked the Scottish media for its coverage of Abdelbaset Ali Mohmed al-Megrahi's continuing appeals against his conviction.
'Kochler believes Scottish journalists are becoming unwilling to question the establishment version of events and work under editors and executives who refuse to finance proper reporting. He says he has a list of publications and journalists he believes have failed to do their jobs properly, which he may seek to publish at a later date.
'Says Kochler: "As far as Lockerbie is concerned I can't understand why more isn't being done by the European country that was most concerned with it. There is a lot at stake: the rule of law, security, the role of international terrorism. Why isn't somebody trying to find out why the authorities are now trying to withhold evidence and delaying everything?"
'In an earlier letter to veteran campaigner Robbie the Pict nee [sic] Brian Robertson, in which Kochler raised the issue of a potential media blackout, he simply wrote: "Where are Scotland's investigative journalists?"
'Kochler claims that editors reduced coverage under establishment pressure. Some journalists closely related to the story argue that the real reason why Lockerbie is off the agenda is because people are tired of it, but Kochler claims it is a symptom of a wider problem that cuts across the profession.'
The comments from members of the public which follow the article are well worth reading and are extremely well-informed.
'When readers are asked what they want more of in newspapers the answer is often great, jaw-dropping scoops. Yet investigative reporting - the discipline behind many such stories - is increasingly seen by many newspaper executives as too expensive to bother with.
'This is certainly the view of Professor Hans Kochler [sic], the former UN monitor of the Lockerbie trial, who has attacked the Scottish media for its coverage of Abdelbaset Ali Mohmed al-Megrahi's continuing appeals against his conviction.
'Kochler believes Scottish journalists are becoming unwilling to question the establishment version of events and work under editors and executives who refuse to finance proper reporting. He says he has a list of publications and journalists he believes have failed to do their jobs properly, which he may seek to publish at a later date.
'Says Kochler: "As far as Lockerbie is concerned I can't understand why more isn't being done by the European country that was most concerned with it. There is a lot at stake: the rule of law, security, the role of international terrorism. Why isn't somebody trying to find out why the authorities are now trying to withhold evidence and delaying everything?"
'In an earlier letter to veteran campaigner Robbie the Pict nee [sic] Brian Robertson, in which Kochler raised the issue of a potential media blackout, he simply wrote: "Where are Scotland's investigative journalists?"
'Kochler claims that editors reduced coverage under establishment pressure. Some journalists closely related to the story argue that the real reason why Lockerbie is off the agenda is because people are tired of it, but Kochler claims it is a symptom of a wider problem that cuts across the profession.'
The comments from members of the public which follow the article are well worth reading and are extremely well-informed.
Saturday 5 July 2008
Administration of the Lockerbie Review
The ninth annual report of the Scottish Criminal Cases Review Commission, covering the period 1 April 2007 to 31 March 2008, was published on 1 July 2008. It contains a section, with the above title, on the Commission's work on the Lockerbie case, resulting in the reference of the case back to the Scottish Court of Criminal Appeal, written by its Chief Executive, Gerard Sinclair. The full annual report can be seen here, with the relevant section on pages 18 and 19 of the pdf document.
Thursday 3 July 2008
Statement by Professor Hans Köchler
Lockerbie Appeal:
Is the insistence on the right to a fair trial absurd and illogical?
Scottish judiciary has to abide by the standards of the European Convention on Human Rights
Statement by Dr. Hans Köchler
Vienna, 3 July 2008
P/RE/20161c
According to reports in the Scottish media, Crown counsel Ronnie Clancy QC has branded as "absurd" and "illogical" demands that Abdelbaset Ali Mohmed al Megrahi's appeal before the High Court of Justiciary shall not be restricted to the grounds of appeal given by the Scottish Criminal Cases Review Commission (SCCRC).
On 28 June 2007 the SCCRC had announced its decision to refer Mr al Megrahi's case back to the High Court of Justiciary for a new appeal. The Commission had given six reasons for its decision some of which it kept secret upon announcement. Obviously (and not only in view of its "secretive" nature), the list of grounds given by the SCCRC cannot be considered as an exhaustive enumeration of all possible grounds of appeal. The grounds given by the SCCRC are simply those that led that body to suspect a miscarriage of justice. The reasons revealed by the SCCRC to the public are almost identical to the points I had raised in my trial and appeal reports (in 2001 and 2002 respectively) which I had submitted to the United Nations.
Contrary to the Crown's position, it is neither absurd nor illogical if an appellant expects an appeal court to hear additional grounds of appeal - if new information has indeed become available. Rather, it would be absurd and illogical to limit the appeal to a fixed number of grounds, i.e. - as regards the present case - to those grounds given in last year's decision of the SCCRC (whereby the evidence related to some of the grounds is still being kept secret).
In order to be fair, an appeal process must be comprehensive. Justice requires truth. Certainty "beyond a reasonable doubt" can not be established if the Defence is prevented from giving the grounds of appeal on the basis of the evidence that is available to it. A court's judgment must be based on arguments. To determine that certain issues and facts are excluded from being considered (because the presentation of some grounds of appeal is rejected by one party) invalidates the entire argumentative process.
A "fair trial" according to Art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention on Human Rights") requires that no one interferes into the competence of the Defence and that, accordingly, additional evidence that has become available is also heard. The limitation of the grounds of appeal is not only contrary to the rationale of a judicial review as such and, thus, intrinsically unfair, but it is also illogical if the goal of an appeal process is indeed a comprehensive review of the original verdict. There can be no rational argumentation of an appeal if the appellant is told what grounds he is allowed to raise and what not.
Rather, in terms of the labels used by the Crown counsel, it could be argued that the original verdict of the High Court of Justiciary was "absurd" and "illogical" since it declared one of the two Libyan suspects "guilty" and the other one "not guilty" - while the entire logic of the indictment was based on the theory of the two suspects having conspired together to ingest an explosive device at Luqa airport (Malta) to be transported in a piece of unaccompanied luggage to Frankfurt airport and from there on to Heathrow.
The effort at limiting the scope of the appeal by restricting the grounds that can be heard is especially serious in view of the British Government's insistence on withholding evidence from the Defence by means of a Public Interest Immunity (PII) certificate. Should the efforts of the Crown and the British Government succeed, the appellant would again be denied his right to a fair trial and will thus be entitled to seek redress from the European Court of Human Rights.
Dr Hans Köchler
Is the insistence on the right to a fair trial absurd and illogical?
Scottish judiciary has to abide by the standards of the European Convention on Human Rights
Statement by Dr. Hans Köchler
Vienna, 3 July 2008
P/RE/20161c
According to reports in the Scottish media, Crown counsel Ronnie Clancy QC has branded as "absurd" and "illogical" demands that Abdelbaset Ali Mohmed al Megrahi's appeal before the High Court of Justiciary shall not be restricted to the grounds of appeal given by the Scottish Criminal Cases Review Commission (SCCRC).
On 28 June 2007 the SCCRC had announced its decision to refer Mr al Megrahi's case back to the High Court of Justiciary for a new appeal. The Commission had given six reasons for its decision some of which it kept secret upon announcement. Obviously (and not only in view of its "secretive" nature), the list of grounds given by the SCCRC cannot be considered as an exhaustive enumeration of all possible grounds of appeal. The grounds given by the SCCRC are simply those that led that body to suspect a miscarriage of justice. The reasons revealed by the SCCRC to the public are almost identical to the points I had raised in my trial and appeal reports (in 2001 and 2002 respectively) which I had submitted to the United Nations.
Contrary to the Crown's position, it is neither absurd nor illogical if an appellant expects an appeal court to hear additional grounds of appeal - if new information has indeed become available. Rather, it would be absurd and illogical to limit the appeal to a fixed number of grounds, i.e. - as regards the present case - to those grounds given in last year's decision of the SCCRC (whereby the evidence related to some of the grounds is still being kept secret).
In order to be fair, an appeal process must be comprehensive. Justice requires truth. Certainty "beyond a reasonable doubt" can not be established if the Defence is prevented from giving the grounds of appeal on the basis of the evidence that is available to it. A court's judgment must be based on arguments. To determine that certain issues and facts are excluded from being considered (because the presentation of some grounds of appeal is rejected by one party) invalidates the entire argumentative process.
A "fair trial" according to Art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention on Human Rights") requires that no one interferes into the competence of the Defence and that, accordingly, additional evidence that has become available is also heard. The limitation of the grounds of appeal is not only contrary to the rationale of a judicial review as such and, thus, intrinsically unfair, but it is also illogical if the goal of an appeal process is indeed a comprehensive review of the original verdict. There can be no rational argumentation of an appeal if the appellant is told what grounds he is allowed to raise and what not.
Rather, in terms of the labels used by the Crown counsel, it could be argued that the original verdict of the High Court of Justiciary was "absurd" and "illogical" since it declared one of the two Libyan suspects "guilty" and the other one "not guilty" - while the entire logic of the indictment was based on the theory of the two suspects having conspired together to ingest an explosive device at Luqa airport (Malta) to be transported in a piece of unaccompanied luggage to Frankfurt airport and from there on to Heathrow.
The effort at limiting the scope of the appeal by restricting the grounds that can be heard is especially serious in view of the British Government's insistence on withholding evidence from the Defence by means of a Public Interest Immunity (PII) certificate. Should the efforts of the Crown and the British Government succeed, the appellant would again be denied his right to a fair trial and will thus be entitled to seek redress from the European Court of Human Rights.
Dr Hans Köchler
Lockerbie Appeal - To Crown it All
I am grateful to Robbie the Pict for drawing my attention to the following article in Private Eye of 27 June 2008.
'Unless the Scottish judiciary resists blatant meddling from Westminster, the forthcoming appeal of Ali Mohmed al-Megrahi, jailed for life for the Lockerbie bombing, is in danger of descending into fiasco.
'Not only is the Foreign Office trying to keep secret intelligence documents that are crucial to the Libyan's defence by claiming public interest immunity (PII) on them (see Eye 1201), but the Crown Office is now seeking to limit Megrahi's appeal too.
'Crown lawyers want the appeal restricted to the six grounds cited last year by the Scottish Criminal Cases Review Commission (SCCRC). Because one of those grounds relates to documents which the UK government wants kept secret, the United Nations special observer, Dr Hans Kochler, has already said the appeal looks more like an "intelligence operation" than a fair hearing.
'To try now to limit the scope of the appeal will underscore Kochler's belief and confirm the view of many, including some of the victims' families, that the government does not want the truth to emerge about how and why Pan Am flight 103 was blasted from the sky nearly 20 years ago, killing 270 people.
'The secret documents relate indirectly to the timing device alleged to have detonated the bomb and said to provide the crucial link to both Libya and Megrahi. Recent leaks to two Scottish newspapers suggest the documents are German in origin and cast doubt on the Libyan connection. Scotland on Sunday quoted a source who had seen the material saying it held "considerable detail" and "appeared to confirm that the method of attack was typical of a Palestinian terror cell in Germany".
'A Syrian-backed Palestinian terrorist cell operating out of Frankfurt was of course broken by German police two months before Lockerbie. Altitude sensitive bombs packed in cassette recorders were found in their flat. It was calculated that they would blow an aircraft up around 40 minutes after take off- spookily similar to the fate of Pan Am 103 after it left Heathrow.
'The Palestinians were the main suspects for the Pan Am bombing for well over a year - until the investigation suddenly switched to Libya and Megrahi with the purported discovery of a tiny fragment of circuit board said to come from a Swiss-made MST 13 timer.
'How the fragment was found and later identified by UK scientists and US investigators has always been highly contentious. Thus any evidence about the timer is central to Megrahi's defence. As well as seeking disclosure of the secret material, it is understood his lawyers want to introduce the results of independent forensic tests casting farther doubt on the evidence given about the timer - unless the Crown Office succeeds in limiting the scope of the appeal.'
'Unless the Scottish judiciary resists blatant meddling from Westminster, the forthcoming appeal of Ali Mohmed al-Megrahi, jailed for life for the Lockerbie bombing, is in danger of descending into fiasco.
'Not only is the Foreign Office trying to keep secret intelligence documents that are crucial to the Libyan's defence by claiming public interest immunity (PII) on them (see Eye 1201), but the Crown Office is now seeking to limit Megrahi's appeal too.
'Crown lawyers want the appeal restricted to the six grounds cited last year by the Scottish Criminal Cases Review Commission (SCCRC). Because one of those grounds relates to documents which the UK government wants kept secret, the United Nations special observer, Dr Hans Kochler, has already said the appeal looks more like an "intelligence operation" than a fair hearing.
'To try now to limit the scope of the appeal will underscore Kochler's belief and confirm the view of many, including some of the victims' families, that the government does not want the truth to emerge about how and why Pan Am flight 103 was blasted from the sky nearly 20 years ago, killing 270 people.
'The secret documents relate indirectly to the timing device alleged to have detonated the bomb and said to provide the crucial link to both Libya and Megrahi. Recent leaks to two Scottish newspapers suggest the documents are German in origin and cast doubt on the Libyan connection. Scotland on Sunday quoted a source who had seen the material saying it held "considerable detail" and "appeared to confirm that the method of attack was typical of a Palestinian terror cell in Germany".
'A Syrian-backed Palestinian terrorist cell operating out of Frankfurt was of course broken by German police two months before Lockerbie. Altitude sensitive bombs packed in cassette recorders were found in their flat. It was calculated that they would blow an aircraft up around 40 minutes after take off- spookily similar to the fate of Pan Am 103 after it left Heathrow.
'The Palestinians were the main suspects for the Pan Am bombing for well over a year - until the investigation suddenly switched to Libya and Megrahi with the purported discovery of a tiny fragment of circuit board said to come from a Swiss-made MST 13 timer.
'How the fragment was found and later identified by UK scientists and US investigators has always been highly contentious. Thus any evidence about the timer is central to Megrahi's defence. As well as seeking disclosure of the secret material, it is understood his lawyers want to introduce the results of independent forensic tests casting farther doubt on the evidence given about the timer - unless the Crown Office succeeds in limiting the scope of the appeal.'
Sunday 29 June 2008
Caledonia, here I come ...
All good things come to an end. So with my six months in the wilds of the Northern Cape. I shall be back in Scotland on 2nd July and will re-commence posting then or shortly thereafter.
Monday 23 June 2008
Must the new appeal be heard at Zeist?
Professor Hans Köchler, the UN appointed observer at the Lockerbie trial, has today issued a press release in the following terms:
‘In an article published in its issue of 15 June 2008, the Sunday Times reports that Prof Robert Black (Edinburgh) “said that the intergovernmental agreement no longer applied.” He is quoted with the statement that the Agreement “existed for the original trial and the appeal. This is now the second appeal …” and that “the agreement was spent.”
‘The statement that the Agreement “no longer applied” and “was spent” contradicts the precise wording of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish Trial in the Netherlands, concluded at The Hague, Netherlands, on 18 September 1998 and entered into force on 8 January 1999 (United Kingdom Treaty Series No 43 [1999]) in the following two respects:
‘(1) Art 3(4)(c) states that “the trial” “will be deemed to be ended when … any judgments of the Scottish Court following conviction have become final and conclusive.” As of today, this is clearly not the case since the Scottish Criminal Cases Review Commission has referred Mr. Megrahi’s case back to the High Court for a second appeal.
‘(2) Under “Definitions” in Art 1, it is expressly stated that the term “the trial” also means “any appeal by the accused following conviction, all in accordance with Scots law and practice.” Nowhere does the agreement distinguish between a “first” and a “second” appeal.
‘If one applies the provision of Art 16(2)(a) of the Agreement to the situation prevailing now – after a new appeal has been granted to the convicted Libyan national – the appeal proceedings can only be held in Scotland under the condition that he has given his “written agreement” and has confirmed that agreement “in person to the High Court of Justiciary in the presence of any counsel instructed by [him].”
‘As of today, the undersigned is not aware of such a written agreement given by Mr Megrahi in person to the High Court of Justiciary. An agreement conveyed by his defense counsel (should that have been the case) is not sufficient. Even in the case of Mr Megrahi’s having given his agreement according to Art 16(2)(a), the intergovernmental Agreement as such is still valid because it does not distinguish between “first” and “second” appeal.’
My response is as follows:
Dr Köchler is wrong in his interpretation of the intergovernmental agreement. It covered a trial and an appeal, both of which have now taken place. Extraordinary processes subsequent to the conclusion of trial and appeal (such as applications to the European Court of Human Rights in Strasbourg and applications to the Scottish Criminal Cases Review Commission and procedure flowing therefrom) are not covered by the extraterritorial provisions of the agreement, and no court would interpret the agreement as embracing them. Clearly, neither the Government of the Netherlands nor the Government of the UK would have agreed to maintaining the Scottish Court (and the Scottish prison) in existence at Zeist for an indefinite period (amounting potentially to decades) to cover the event of a successful application being made to the SCCRC at some indeterminate time in the future. Dr Köchler’s interpretation would entail precisely that unreasonable consequence and, for that reason alone, would be rejected by any court tasked with construing the agreement.
The expression “any appeal” in the context in which it is used, means “an appeal (if there happens to be one)”. A convicted person may choose not to appeal. “Any appeal” is a recognised way, in the English language, of expressing this element of indeterminacy. It does not envisage a plurality of appeals. If that had been the intention, the phrase used in art 1 would have been “any appeals (or 'all appeals') by the accused following conviction”.
It is noteworthy that Mr Megrahi’s current (and highly expert and experienced) legal team have deliberately decided that such a submission (that the extraterritoriality provisions of the intergovernmental agreement should apply to the new appeal) was not worth pursuing.
‘In an article published in its issue of 15 June 2008, the Sunday Times reports that Prof Robert Black (Edinburgh) “said that the intergovernmental agreement no longer applied.” He is quoted with the statement that the Agreement “existed for the original trial and the appeal. This is now the second appeal …” and that “the agreement was spent.”
‘The statement that the Agreement “no longer applied” and “was spent” contradicts the precise wording of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish Trial in the Netherlands, concluded at The Hague, Netherlands, on 18 September 1998 and entered into force on 8 January 1999 (United Kingdom Treaty Series No 43 [1999]) in the following two respects:
‘(1) Art 3(4)(c) states that “the trial” “will be deemed to be ended when … any judgments of the Scottish Court following conviction have become final and conclusive.” As of today, this is clearly not the case since the Scottish Criminal Cases Review Commission has referred Mr. Megrahi’s case back to the High Court for a second appeal.
‘(2) Under “Definitions” in Art 1, it is expressly stated that the term “the trial” also means “any appeal by the accused following conviction, all in accordance with Scots law and practice.” Nowhere does the agreement distinguish between a “first” and a “second” appeal.
‘If one applies the provision of Art 16(2)(a) of the Agreement to the situation prevailing now – after a new appeal has been granted to the convicted Libyan national – the appeal proceedings can only be held in Scotland under the condition that he has given his “written agreement” and has confirmed that agreement “in person to the High Court of Justiciary in the presence of any counsel instructed by [him].”
‘As of today, the undersigned is not aware of such a written agreement given by Mr Megrahi in person to the High Court of Justiciary. An agreement conveyed by his defense counsel (should that have been the case) is not sufficient. Even in the case of Mr Megrahi’s having given his agreement according to Art 16(2)(a), the intergovernmental Agreement as such is still valid because it does not distinguish between “first” and “second” appeal.’
My response is as follows:
Dr Köchler is wrong in his interpretation of the intergovernmental agreement. It covered a trial and an appeal, both of which have now taken place. Extraordinary processes subsequent to the conclusion of trial and appeal (such as applications to the European Court of Human Rights in Strasbourg and applications to the Scottish Criminal Cases Review Commission and procedure flowing therefrom) are not covered by the extraterritorial provisions of the agreement, and no court would interpret the agreement as embracing them. Clearly, neither the Government of the Netherlands nor the Government of the UK would have agreed to maintaining the Scottish Court (and the Scottish prison) in existence at Zeist for an indefinite period (amounting potentially to decades) to cover the event of a successful application being made to the SCCRC at some indeterminate time in the future. Dr Köchler’s interpretation would entail precisely that unreasonable consequence and, for that reason alone, would be rejected by any court tasked with construing the agreement.
The expression “any appeal” in the context in which it is used, means “an appeal (if there happens to be one)”. A convicted person may choose not to appeal. “Any appeal” is a recognised way, in the English language, of expressing this element of indeterminacy. It does not envisage a plurality of appeals. If that had been the intention, the phrase used in art 1 would have been “any appeals (or 'all appeals') by the accused following conviction”.
It is noteworthy that Mr Megrahi’s current (and highly expert and experienced) legal team have deliberately decided that such a submission (that the extraterritoriality provisions of the intergovernmental agreement should apply to the new appeal) was not worth pursuing.
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