Double jeopardy and Lamin Fhimah

What follows is an item originally posted on this blog on this date three years ago:

Fhimah retrial speculation on abolition of double jeopardy rule

[The following are excerpts from a report in today's edition of Scotland on Sunday:]

Prosecutors are examining whether to reopen a series of “double jeopardy” cases which could lead to some of Scotland’s most notorious unsolved murders being brought back to court.

The 800-year-old law of double jeopardy will be radically overhauled tomorrow, ending the rule which prevents an accused being tried twice for the same crime. (...)

Officials declined to specify which cases could be among those coming back to court, but they are likely to include the so-called “World’s End” murders of Christine Eadie and Helen Scott from 1977. [RB: This case was re-indicted and on 14 November 2014 Angus Sinclair was convicted.] Other cases believed to be at the top of the list include the prosecution and acquittal of Libyan al-Amin Khalifa Fhimah for the Lockerbie bombing (...)

The reform could also trigger fresh developments in the Lockerbie case, which remains active, amid speculation that Fhimah, who was found innocent of the atrocity, could be prosecuted once again. (...)

[T]he reforms, which come into force tomorrow, will ensure that a second trial can take place where “compelling new evidence emerges to substantially strengthen the case against the accused”. A second trial may also be allowed to proceed where there is evidence that the first trial was “tainted”. An example might be where a witness was found to have been intimidated into supporting the accused.

Furthermore, if after acquittal the accused admits having committed the offence, the Crown Office will be permitted to have a second trial. (...)

A Crown Office spokeswoman said: “The Solicitor General for Scotland, Lesley Thomson QC, has been asked by the Lord Advocate, Frank Mulholland QC, to review and prioritise cases which may be prosecuted anew under the Double Jeopardy (Scotland) Bill.”

She added: “It is too early to say which cases would be considered, nor would we speculate on how any particular cases will be dealt with under the change to the law of double jeopardy in Scotland.”

[I would be astounded if prosecutors sought to re-indict Lamin Fhimah.  The Crown Office is just as aware as the rest of us are that the astonishing thing about the Zeist trial was not the acquittal of Fhimah but the conviction of Abdelbaset Megrahi.  Any "new evidence" that has emerged since 2001 points clearly towards the innocence of the accused Libyans rather than their guilt, as the Scottish Criminal Cases Review Commission amongst others has pointed out.]

Three years later, I see no reason to modify in any way the view expressed immediately above.

MacAskill's decision to release Megrahi "erroneous" says Scotsman columnist

[What follows is excerpted from an article in today’s edition of The Scotsman by home affairs reporter Chris Marshall:]

First Minister Nicola Sturgeon’s decision last week to remove Kenny MacAskill from his justice brief merely confirmed what many had suspected for some time.

The justice secretary had cut an increasingly forlorn figure in recent months, only narrowly avoiding a vote of no confidence when opposition MSPs demanded he resign over his handling of the issue of armed policing.

Indeed, it was telling that those in uniform seemed to be the unhappiest to see the justice secretary go.

Niven Rennie, president of the Association of Scottish Police Superintendents, used his Twitter account to describe Mr MacAskill as “a statesman” who would be a “hard act to follow”. But ringing endorsements from the police force should not be a badge of honour for a politician.

The praise heaped on the departing justice secretary reflected what had been an ever-increasing willingness on his part to cede power to the police on “operational matters”. Nowhere was this more apparent than in the police’s unilateral decision to allow a small number of officers to carry guns on routine patrol, a decision Mr MacAskill was made aware of but raised not a peep about. This particular “operational matter” came to light only when concerned citizens of Inverness began reporting gun-carrying cops on the largely crime-free streets of the Highland capital.

His apparent reticence to gets his hands dirty did not mark the justice secretary’s entire time in office, however. He did not shy away from controversy, the erroneous decision to release Abdelbaset Ali Mohmed al-Megrahi – the only man convicted of the Lockerbie bombing – being a case in point.

[RB: It is regrettably typical of today’s pale shadow of a once-great newspaper that what was perhaps Kenny MacAskill’s bravest, most principled and legally correct act as Cabinet Secretary for Justice should be dismissed in The Scotsman with the throwaway line “erroneous decision”.]

Were officials convicted in Gaddafi's Libya in relation to Lockerbie?

[As a reminder of just how febrile was the atmosphere in the months immediately preceding the surrender of Abdelbaset Megrahi and Lamin Fhima for trial at Camp Zeist, here is a news agency report from The Associated Press from this date in 1998:]

Three top Libyan officials have been tried and jailed in the 1988 Pan Am bombing, newspapers reported today. Libyan dissidents said the reports appear to be a political ploy by Libyan leader Col Moammar Gadhafi.

An Egyptian source, who like Libyan sources spoke to The Associated Press on condition of anonymity, said he had heard nothing about any such trials during meetings with leading officials on a just-ended trip to the Libyan capital, Tripoli.

The reported jailing comes as Gadhafi is under pressure to accept a plan to turn over for trial two other Libyans wanted for the bombing of Pan Am Flight 103 over Lockerbie, Scotland, that killed 270 people, including 189 Americans.

Two London newspapers, The Guardian and the leading Arabic daily Al-Hayat, reported today that three top intelligence chiefs at the time of the airliner bombing had been convicted and imprisoned in Libya.

The Guardian said Abdullah al-Senussi, Musa Koussa and Mohammed al-Misrati were sentenced to between five and seven years in prison earlier this month.

Quoting “well-placed sources,” The Guardian said the charge filed against the three was “dereliction of duty,” but gave no further details.

Al-Hayat's report said it had questioned Libyan Justice Minister Mohamed Belgasim al-Zuwiy [RB: subsequently Libyan ambassador in London, now on trial in Tripoli] about the purported trials, but he had replied only that “trials are going on all the time.”

The Guardian and Al-Hayat suggested that the jailing of the three was aimed at blocking their testimony at a trial of the two Libyan suspects which, under a plan approved by the UN Security Council, would be heard by Scottish judges in the Netherlands.

After refusing for years to turn over two men for trial in the United States or Britain, Libya recently accepted in principle the proposed trial in The Hague, Netherlands, but has delayed in turning over the suspects. Abdel Basset Ali al-Megrahi and Lamen Khalifa Fhimah, accused by the United States and Britain, allegedly were Libyan intelligence agents.

The Libyan dissidents said the jailings probably were a total invention leaked by Gadhafi's government. One dissident said the three men had been close associates of Gadhafi for decades and were “too valuable for Gadhafi to dispose of them.”

Al-Senousi was head of the Libyan intelligence service and Koussa was in charge of its foreign operations during the 1988 bombing. The third man, al-Misrati, was a senior official in the Revolutionary Committees, Gadhafi's ruling party.

The dissidents said Gadhafi's long resistance to turning over al-Megrahi and Fhimah stemmed from fear that their testimony would directly implicate his government in the bombing.

Libya has been under UN sanctions since 1992 to force it to hand over the two suspects in the Lockerbie case. The sanctions include a ban on air links with Libya, an arms embargo and a partial ban on the sale of oil equipment.

[RB: While there is no evidence that I am aware of that establishes that any such trial of these three officials took place, it is certainly the case that Moussa Koussa disappeared from public view for a relatively lengthy period around this time. It was only some time after Megrahi’s conviction that I encountered him again in my meetings with Libyan officials.

Here is a comment that I posted on the Friends of Justice for Megrahi Facebook page:

"It is a very odd story. It was spread by Libyan dissidents. Were they (or perhaps their US sponsors and supporters) trying some black propaganda about the Gaddafi regime, insinuating that senior officials were involved in Lockerbie and Gaddafi himself was trying to distance himself from them? Remember that it was now on the cards that a Lockerbie trial would take place. Planting stories like this in Western media would provide a nice prejudicial atmosphere for the trial to take place in."]

Labour Government: Megrahi prisoner transfer inclusion in UK's overwhelming interests

1. From a November 2007 blogpost:

Another anniversary

On 24 November 2003, the High Court of Justiciary, sitting in Glasgow, determined that Abdel Baset Ali al-Megrahi, convicted on 31 January 2001 in the Scottish Court in the Netherlands for the 1988 bombing of Pan Am Flight 103 over Lockerbie, should serve 27 years in prison before becoming eligible for release on licence from his life sentence. The trial judges' original recommendation that he serve at least twenty years of the life sentence before being considered for release, required to be reconsidered following changes in Scots penal law following the incorporation into domestic law of the European Convention on Human Rights. The "punishment part" of 27 years now imposed (by the same three judges as had imposed the original sentence) was backdated to April 1999, when Megrahi was remanded in custody to await trial. Both the Crown and the defence have appealed the 27-year punishment part, but it is unlikely that these appeals will be heard unless and until Megrahi's new appeal is dismissed.

2. From a 24 November 2009 blogpost:

Straw denies Megrahi interference

[What follows is the text of a report on the BBC News website.]

Jack Straw has denied a suggestion the UK government guided Scottish ministers to release the Lockerbie bomber from prison on compassionate grounds.

But ministers did tell the Scottish government prior to Abdelbaset Ali al-Megrahi's release the UK government was not seeking his death in custody.

Mr Straw, the UK Justice Secretary, has been giving evidence to the Commons Justice Committee.

Megrahi, who has terminal prostate cancer, was released in August.

Tory MP Douglas Hogg challenged Mr Straw when he stated that in effect Westminster was guiding Scottish ministers to free the Libyan, but the justice secretary insisted it was entirely a matter for the Scottish government.

Scottish Justice Secretary Kenny MacAskill decided to grant Megrahi a compassionate release after seeking medical advice on his condition.

Mr Straw originally intended to exclude Megrahi from a prisoner transfer agreement signed with Tripoli by the then Prime Minister Tony Blair, but he later changed his mind.

In documents published in the aftermath of the Libyan's release, Mr Straw told the Scottish government it was in the UK's overwhelming interests not to exclude Megrahi.

Mr Straw said strong relations with Libya were important and that it would not be sensible to risk damaging them.

Both the Holyrood and Westminster administrations deny any pressure was applied on Mr MacAskill over the decision.

Pan Am 103, Iran Air 655 and Christine Grahame MSP

[Christine Grahame MSP has over many years fought staunchly to have the truth about Lockerbie uncovered. Here is just one example taken from an item posted on this blog on this date in 2009:]

An SNP Member of the Scottish Parliament has called for an international inquiry to be established to examine the full circumstances that led to the blowing up of Pan Am 103 in December 1988 and the shooting down of Iranian Flight 655, by the US navy five months before the Lockerbie attack.

Christine Grahame MSP believes that the two incidents are “inextricably linked” and expressed a hope that an internationally backed inquiry would lead to the real perpetrators of both attacks being brought to justice. Ms Grahame said:

“Amongst all the furore surrounding Abdelbaset al Megrahi’s release from prison in August, the wider substantive issues have been left obscured.

“I and many others who have examined this case believe on the evidence we have seen that the murder of 270 people over Lockerbie in December 1988 was a revenge attack sponsored by the Iranians in response to the shooting down of one of their passenger jets, Flight 655, five months earlier by the US navy. That vessel, the USS Vincennes, entered Iranian waters in a deliberately provocative move, before firing a surface to air missile at a schedule passenger flight taking Iranian pilgrims [to] Mecca.

“The US claim that this incident was an ‘accident’ simply does not hold water. It was, like the attack on Pan Am 103 five months later, a crime against humanity that targeted civilians and in the Iranian incident led to the deaths of 290 passengers.

“I am today calling on an international inquiry to be established to consider and examine these two inter-related atrocities and I would hope that ultimately this may lead to some effort being made to bring to justice those responsible.

“I accept that the US failure to be a signatory to the International Court of Criminal Justice makes it unlikely that the officers of the USS Vincennes or their Commander in Chief at the time of the blowing up of Flight 655, will face any due legal process. That will also be the case for the Iranian Government officials who authorised and sponsored the attack on Pan Am 103. Nonetheless such an inquiry would help expose the reality of what took place and the hypocrisy of those who are arguing that justice has been served in the Pan Am 103 attack by the wrongful conviction of Abdelbaset al Megrahi.”

Ms Grahame has today (Monday) lodged a parliamentary motion at the Scottish Parliament which calls on an independent inquiry to be established and urges relevant Scottish public authorities, such as the Crown Office and police, to co-operate fully with it.

Text of parliamentary motion:

International Inquiry, Pan Am 103 and Flight 655

That the Parliament supports the establishment of an international inquiry into the circumstances that led to the blowing up of Pan Am 103 over Lockerbie in December 1988 that murdered 270 passengers and urges all relevant Scottish authorities to co-operate with it; further supports that such an inquiry should also consider the relationship of that atrocity to the shooting down of Iranian flight 655 over the Straits of Hormuz five months before by a US warship, which claimed the lives of 290 passengers, and urges the international community to pursue, investigate and bring to justice all those ultimately responsible for these two terrorist attacks, which it considers constitute crimes against humanity.

[RB: The motion appears to have received support only from the following MSPs: Dave Thompson, Bill Wilson, Bob Doris, Bill Kidd, Jamie Hepburn.]

Ave atque vale: Michael Matheson and Kenny MacAskill

[Here are a few press reactions to the departure of Kenny MacAskill as Cabinet Secretary for Justice and the arrival of Michael Matheson:]

The Herald: One of the big surprises of Nicola Sturgeon's new Cabinet was the appointment of Falkirk MSP Michael Matheson to the justice portfolio.

While the departure of Kenny MacAskill from Government had been widely expected, few had predicted his successor would be the previous Minister for Public Health.

Mr Matheson, a former occupational therapist, has little background in law, although he did serve as shadow deputy minister for justice from 1999 until 2004 and had a stint on the Scottish Parliament's Justice Committee over roughly the same period.

The keen mountaineer, who served as a regional MSP for Central Scotland between 1999 and 2007 before winning his constituency seat, is said to have impressed behind the scenes with his performance as a minister and a demeanour described as "calm and unflappable".

His appointment marks a departure from the approach of Mr MacAskill, a lawyer by trade but whose policies did not always find favour among the legal profession.

In an eventful seven years as Justice Secretary, Mr MacAskill came under scrutiny for the freeing of the man convicted of the Lockerbie bombing, Abdelbaset Ali Mohmed al Megrahi, on compassionate grounds and the creation of the single police force.

More recent controversies included his plan to scrap the centuries-old need for corroboration in criminal cases and the use of armed police officers on routine duties.

The proposal to end the need for corroboration was put on hold in April following an outcry from lawyers while the policy of allowing armed police to respond to routine calls was reversed last month, prompting new calls for Mr MacAskill to resign.

The Scotsman: When asked about the departures of [former Cabinet Secretary for Education] Mr [Mike] Russell and Mr MacAskill, she [First Minister Nicola Sturgeon] said: “Both of them felt they’d made a big contribution, that the time was right for them to demit ministerial office.”

From his decision to release the Lockerbie bomber Abdelbaset al-Megrahi to the routine appearance of armed police on the streets, Mr MacAskill’s reign at the justice department had been mired in controversy.

When pressed on whether his departure was an acknowledgement that the government had got things wrong on justice, Ms Sturgeon said: “I pay tribute to Kenny MacAskill. Kenny MacAskill is the justice secretary who has ensured that there are 1,000 more police officers on the streets of our country and has presided over a fall in crime that has led to the position where crime is now at a 40-year low.

“He has significant achievements to his name and he should be very proud of that.”

The Times (Magnus Linklater): Two signals have been sent out. The first is overt: Ms Sturgeon had made it clear that she wants to see more women in positions of power. She now has a cabinet that has a 50 per cent female to male ratio.

The second is more subtle, but no less important. This, she is saying, is a post-Salmond cabinet. Not only have two of his senior ministerial colleagues — Kenny MacAskill, the justice secretary, and Mike Russell at education — gone altogether, but she has promoted Roseanna Cunningham on to the front bench; history will recall that Ms Cunningham is far from being Alex Salmond’s favourite SNP colleague; in 2004, he came back from Westminster to ensure that she was denied the leadership.

The aim is to have a working cabinet rather than an exercise in propaganda. It echoes the message Ms Sturgeon gave out during her first Holyrood appearance as first minister, when, quite deliberately, she held back from the Salmond ritual of denigrating opponents and castigating Westminster. If that is the pattern to come, it is a welcome one. The demise of Kenny MacAskill as justice secretary was almost inevitable. He had lost the confidence of the legal establishment because of his unyielding stance on corroboration, and a series of decisions that had raised questions about his judgment. Michael Matheson, who replaces him, was, for five years, shadow deputy justice minister, so will know that he has a lot of ground to make up to win back the authority of the office.

The Guardian: Another newcomer is Michael Matheson, who replaces the benighted Kenny McAskill as justice secretary. McAskill had weathered a controversial tenure which saw him draw criticism for his handling of the Megrahi case, the creation of the single Scottish police force, and his attempts to reform the laws on corroboration.

The departure of McAskill, as well as Mike Russell from education, signals a generational shift away from the “79 group”, an SNP faction from the 1980s which included previous first minister Alex Salmond.

The Daily Telegraph: Kenny MacAskill, the man who freed the Lockerbie bomber, was the most high profile casualty as Nicola Sturgeon announced her new ministerial team. (...)

Following a string of controversies, Mr MacAskill had been hotly tipped to lose his job.

He will be remembered as the man who caused an international outcry in 2009 by freeing Abdelbaset Ali Mohmed Al Megrahi, the only person convicted of the Lockerbie bombing.

The Libyan intelligence agent was released on compassionate grounds on the basis that he had terminal cancer and only three months to live. He was given a hero’s welcome in Tripoli and lived there with his family for two years and nine months before dying of prostate cancer.

His release was criticised by Barack Obama and infuriated American relatives who lost loved ones in the atrocity. The decision meant he spent less than eight years in jail for the worst terrorist atrocity on British soil in which 270 people died.

Mr MacAskill also infuriated the legal profession last year when he announced plans to scrap the historic principle of corroboration that requires evidence from two sources in criminal cases.

In recent months, he has been widely criticised following the arming of police officers on routine patrols following the creation of the single national police force. A public outcry resulted in an about-turn on the policy by Police Scotland.

He also oversaw the merging of the country’s eight regional forces into Police Scotland, amid fears over centralisation and a loss of local accountability.

Kenny MacAskill, Lockerbie and Megrahi

[The departure of Kenny MacAskill as Cabinet Secretary for Justice has been confirmed. His part in the saga that is the Lockerbie affair since his appointment in 2007 can be followed on this blog here.  A very short selection of highlights follows:]

Sunday, 12 July 2009 MacAskill in offer to meet Megrahi

Monday, 24 August 2009 MacAskill followed the letter of the law

Monday, 24 August 2009 Megrahi’s release: Kenny MacAskill was right

Tuesday, 25 August 2009 Scots opinion rallies behind justice secretary

Thursday, 27 August 2009 MacAskill prison visit absurd, says Lord Fraser

Sunday, 30 August 2009 Mandela supports MacAskill decision

Wednesday, 11 August 2010 Justice Secretary repeats support for full Lockerbie inquiry

Wednesday, 24 November 2010 Good news regarding the Cadder emergency legislation

Thursday, 10 February 2011 Lockerbie: some shrapnel

Friday, 11 November 2011 MacAskill stands by Megrahi conviction "until such time as that matter were to be reviewed"

Monday, 27 February 2012 Megrahi: how MacAskill linked my release to dropping my appeal

Wednesday, 29 February 2012 MacAskill’s statement to parliament – the key issues

Thursday, 1 March 2012 Salmond backs minister on Megrahi

Tuesday, 25 September 2012 Deliberately false and misleading allegations, says rattled Crown Office

Tuesday, 23 October 2012 Police, Crown Office accused in widespread perversion of the course of justice over Pan Am 103

Wednesday, 4 September 2013 A timely lesson for MacAskill and Mulholland

Wednesday, 21 August 2013 Report on meetings with investigators of JFM's criminality allegations

[The new Cabinet Secretary for Justice is Michael Matheson MSP. He is not a lawyer, but that is not a complete departure from precedent. Cathy Jamieson (then MSP, now MP) held the office from May 2003 to May 2007 in the Labour/LibDem administration. One potential drawback of having a non-lawyer in this position is that too much influence on justice policy and practice may come to be exerted by the Scottish Law Officers.

Talking of which, in her ministerial reshuffle Nicola Sturgeon has not as yet taken the step of rectifying the constitutional affront (not to mention governmental idiocy) perpetrated by her predecessors (SNP and Labour) of appointing Crown Office staffers as the Scottish Law Officers. However, unlike other Scottish Ministers, the appointment and removal of Law Officers requires the approval of the Scottish Parliament (under the Scotland Act 1998, section 48). So perhaps an appropriate parliamentary motion is already being drafted. It would be the single most important thing that the new First Minister (who is herself a lawyer) could do for the Scottish justice system.]

Justice Secretary MacAskill expected to lose job in Scottish Cabinet reshuffle

[What follows is taken from an article published in today’s edition of The Scotsman:]

Kenny MacAskill is expected to be the most high-profile casualty when Nicola Sturgeon puts her own mark on the SNP administration by reshuffling her cabinet.

Last night, Ms Sturgeon was putting the finishing touches to the make-up of her team, amid intense speculation Mr MacAskill will lose his job as justice secretary.

Ms Sturgeon’s aides indicated the reshuffle would happen “very shortly” and there were strong signs that the announcement will be made today.

Mr MacAskill has defied numerous calls to quit during his controversial spell in charge of the justice department.

A signal that he was finally on his way out emerged at Holyrood yesterday.

Fielding questions for the first time as First Minister, Ms Sturgeon pointedly failed to defend the justice secretary when Lib Dem leader Willie Rennie suggested “everyone knew he was going”.

Ms Sturgeon responded by listing some of the Scottish Government’s justice policies, but failed to mention Mr MacAskill.

After First Minister’s Questions, Ms Sturgeon’s spokesman was asked why she had not denied Mr MacAskill faced the sack. He said: “I am not going to indulge in fevered speculation. The First Minister will confirm her line-up very shortly.” (...)

Last night, the SNP’s opponents were taking it as read that Mr MacAskill will go. (...)

Ever since Mr MacAskill freed Lockerbie bomber Abdelbaset al-Megrahi, his time at the justice department has been dogged by controversy.

[RB: Kenny MacAskill has not been a distinguished Cabinet Secretary for Justice. His stonewalling and prevarication over the need for an independent inquiry into the Lockerbie investigation, prosecution and trial has been disgraceful. The feebleness of his excuses for refusing such an inquiry has been pitiful. The refusal to appoint an independent investigator to look into Justice for Megrahi's allegations of criminal misconduct in the Lockerbie investigation, prosecution and trial was shameful. One thing he cannot justly be criticised for, however, is his compassionate release of Megrahi (though the procedures that he chose to adopt in reaching his decisions on prisoner transfer and compassionate release are open to censure).]