A travesty perpetrated by a credulous court

[What follows is excerpted from an article published on the website of Scottish lawyers’ magazine The Firm on this date in 2011:]

Claims given to selected media by the Crown Office that a retrial of acquitted Pan Am 103 co-accused Lhamin Khalifa Fhimah is the "top priority" of their double jeopardy unit have been dismissed as "public relations puffery" by Professor Robert Black QC, the architect of the unique Zeist trial of Fhimah and Abdelbaset Al Megrahi.

The newly appointed Lord Advocate, Frank Mulholland, has also briefed sections of the media about raising a prosecution against Libyan Leader Colonel Gadaffi, despite the fact that the entire Lockerbie trial arrangement was brokered under the auspices of the United Nations under an internationally agreed legal arrangement which did not include the possibility of proceedings against Gadaffi.

Professor Black, who earlier this year highlighted the legal errors contained in the former Lord Advocate, Elish Angiolini’s advice to the Scottish Government over the case has said that "the evidence does not exist" to try Fhimah.

"There will be no re-trial of Lhamin Fhimah or any trial of Colonel Gaddafi for the bombing of Pan Am 103," Professor Black said this morning.

"The Crown Office is perfectly well aware that the evidence simply does not exist to make a conviction a realistic prospect; and that the conviction of Abdelbaset Megrahi on the evidence led at Zeist was a travesty perpetrated by a credulous court which has long since been exposed, by the Scottish Criminal Cases Review Commission amongst many others."

In February this year Black and members of the Justice for Megrahi Committee said the "misinformation" promulgated by the Crown Office was "symptomatic of a culture of self interest where openness and accountability is seen as threatening that interest."

Edinburgh talk on Lockerbie evidence

Dr Morag Kerr, author of Adequately Explained by Stupidity? Lockerbie, Luggage and Lies is giving a presentation on the "suitcase jigsaw" aspect of the Lockerbie evidence on Wednesday 17 June in Edinburgh.  The venue is The Edinburgh South Yes Hub and Cafe, 1-2 Liberton Dams, EH16 6AJ, and the time is 7 pm till 9 pm.

http://yescafeedinburghsouth.weebly.com/events-calendar.html

The illustrated talk should last about 40 to 45 minutes, after which there will be plenty of time for questions and discussion.

A kernel of morality

[What follows is an excerpt from a speech delivered by Nelson Mandela on 13 June 1999, his third-last day as President of South Africa:]

There must be a kernel of morality also to international behaviour. Of course, nations must place their own interests high on the list of considerations informing their international relations. But the amorality which decrees that might is right can not be the basis on which the world conducts itself in the next century.

It was pure expediency to call on democratic South Africa to turn its back on Libya and Qaddafi, who had assisted us in obtaining democracy at a time when those who now made that call were the friends of the enemies of democracy in South Africa.

Had we heeded those demands, we would have betrayed the very values and attitudes that allowed us as a nation to have adversaries sitting down and negotiating in a spirit of compromise. It would have meant denying that the South African experience could be a model and example for international behaviour.

In many ways, our modest contribution to resolving the Lockerbie issue will remain a highlight of the international aspects of our Presidency. No one can deny that the friendship and trust between South Africa and Libya played a significant part in arriving at this solution. If that be so, it vindicates our view that talking to one another and searching for peaceful solutions remain the surest way to resolve differences and advance peace and progress in the world.

We look forward with joy and anticipation to the full re-entry of Libya into the affairs of our continent and the world.

Slalom shirt as dodgy as the timer fragment?

[What follows is taken from an article published on this date in 2011 in the Scottish edition of the Sunday Express:]

Abdelbaset Ali Mohmed al-Megrahi was convicted on the basis that he bought clothes from Maltese shopkeeper Tony Gauci, including a grey men’s Slalom shirt. The clothing was then packed in a suitcase with the bomb that brought down Pan Am 103, killing 270 on December 21, 1988.

The charred remains of the shirt were crucial to the prosecution, as a forensic scientist found a piece of circuit board from the bomb embedded in the collar which first led investigators to Libya, and ultimately Megrahi.

However, it has now emerged that clothing manufacturers in Malta told Scottish police in January 1990 that the shirt recovered from the crash site was in fact a boy’s size.

Campaigners have stepped up calls for an inquiry after the claims surfaced in a documentary broadcast on Thursday by Arab TV network Al Jazeera but seen by only a handful of Scottish viewers.

In it, Scotland’s former Lord Advocate also accepted that Gauci, the main prosecution witness, was paid $2million to give evidence against Megrahi.

Scottish private investigator George Thomson tracked down shirt manufacturers Tonio Caruana and Godwin Navarro in Malta. They recalled being shown a fragment of shirt by DC John Crawford and telling him, independently of each other, that it was a boy’s shirt.

Speaking to the Sunday Express yesterday, Mr Navarro, 76, said: “I stand by my statement. I believe it is a boy’s shirt because of the size of the pocket and the width of the placket, where the button holes are.”

Retired Strathclyde Police superintendent Iain McKie, now a campaigner against miscarriages of justice, said: “The fact that the witnesses say it was a boy’s shirt and not an adult shirt seems to me quite critical.”

He said that if it was a boy’s shirt, then it cannot be the same one purchased from Gauci by the man he later identified as Megrahi – destroying the “evidence chain”.

Supt McKie said the latest claims added weight to calls for the Scottish Government to set up an independent inquiry into Megrahi’s conviction.

He added: “The whole chain of evidence has been totally and utterly shattered. It is looking more and more like the police came to a conclusion and then looked for evidence.”

The programme, Lockerbie: The Pan Am Bomber, also alleged that a piece of the shirt had been altered, as it is clearly a different shape in two police photographs. (...)

[George Thomson] said: “In January 1990 they realise that what they have is a fragment of a boy’s shirt, while Gauci is saying he sold a gents’ shirt.

“The reason for people saying this is mainly down to the size of the pocket and lo and behold the next thing a fragment of the pocket has been removed.”

Megrahi's doomed first appeal

[What follows is excerpted from a report published on the Mail Online website on 11 June 2001:]

Lawyers for Lockerbie bomber Abdelbaset Ali Mohmed Al Megrahi today lodged the grounds for his appeal against conviction.

The move came just two days before the deadline for submitting the full grounds to the Court of Appeal.

The grounds should have been lodged within six weeks of the bomber's conviction in January but Al Megrahi's legal team applied for, and were granted, two extensions of six weeks each.

Today, a spokeswoman for the Crown Office confirmed that the appeal grounds had been submitted to the Court of Appeal.

It is unlikely that the grounds for appeal will be made public at this stage.

A judge sitting in chambers will now decide if the grounds warrant an appeal against conviction.

Assuming Al Megrahi's appeal goes ahead, the hearing will take place before five judges at Camp Zeist in Holland.

[Here is something I have previously written about this appeal:]

Megrahi duly intimated his intention to appeal against his conviction. Pending the appeal he remained incarcerated in the Netherlands in HM Prison, Zeist. On 14 March 2002 the appeal was dismissed. (...)

The only ground upon which a criminal appeal can succeed in Scotland is that there has been a miscarriage of justice. In the Note of Appeal lodged on behalf of Megrahi there were set out in 21 paragraphs (many of them subdivided) the grounds upon which, individually or in combination, it was contended that a miscarriage had occurred. One of those grounds related to the existence and significance of evidence which was not heard during the original proceedings. This evidence related to a breach of security at Heathrow Terminal 3 (potentially giving access to the baggage build-up area) the night before Pan Am 103 departed from that terminal on its fatal flight. The Appeal Court allowed the new evidence to be led before it, but ultimately concluded that it could not be regarded as possessing such importance as to have been likely to have had a material bearing on the trial court’s determination of the critical issue of whether the suitcase containing the bomb was launched on its progress from Luqa Airport in Malta (an essential plank in the prosecution case) or from Heathrow. This ground of appeal was accordingly rejected.

As far as the appeal based on the remaining twenty paragraphs of the written grounds of appeal was concerned, its failure appears to have been rendered virtually inevitable by two concessions made in the course of argument by the appellant’s counsel. The first of these, as recorded in the Opinion of the Court (paragraph 4) is as follows:

“At the trial it was not submitted on the appellant’s behalf that there was insufficient evidence in law to convict him. In its judgment the trial court rejected parts of the evidence relied upon by the Crown at the trial. Nevertheless, it was not contended in the appeal that those parts of the evidence not rejected by the trial court did not afford a sufficient basis in law for conviction.”

The second concession is recorded in the following terms (paragraph 5):

“Under subsection (3) [of s106 of the Criminal Procedure (Scotland) Act 1995] an appellant may bring under review of the High Court:

‘any alleged miscarriage of justice, which may include such a miscarriage

based on –

(b) the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned.’ …

Mr Taylor, who appeared for the appellant, expressly disavowed any reliance on para (b).”

The importance of these concessions is emphasised by the Appeal Court in the penultimate paragraph of its Opinion (paragraph 369):

“When opening the case for the appellant before this court Mr Taylor stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”

The issues that the appeal did not address

The limitations under which the Appeal Court was thus constrained to operate effectively disabled it from considering the issues of (a) whether there was sufficient evidence in law to justify such absolutely crucial findings-in-fact by the trial court as (i) that the date of purchase in Malta of the clothes surrounding the bomb was 7 December 1988, (ii) that Megrahi was the purchaser and (iii) that the case containing the bomb started its progress from Malta’s Luqa Airport and (b) whether those findings or any of them (on the assumption that there was a legal sufficiency of evidence) were such as no reasonable trial court, properly directing itself, could have made, or been satisfied of beyond reasonable doubt, in the light of (i) justifiable criticisms of the evidence and witnesses supporting them and (ii) ex facie credible contrary evidence.

The issues that the appeal did address

What the appellant instead invited the Appeal Court to do was to hold that various findings-in-fact made by the trial court (a) were based upon a misunderstanding of the evidence or were without a basis in the evidence; or (b) were arrived at by giving undue weight to evidence that supported them or insufficient weight or “proper regard*” to evidence that contradicted them; or (c) were in the nature of inferences from primary facts drawn in situations where other, non-incriminating, inferences were equally open.

As regards (a) the Appeal Court held that in two or three instances the trial court had found a fact proved on the basis of a misunderstanding of the evidence led, or where there was no evidential basis for the finding. But in each such case the Appeal Court went on to decide that the error was insignificant, could not have affected the ultimate outcome of the case and, hence, was not such as to give rise to a miscarriage of justice.

As regards (b) and (c) the Appeal Court insisted that, as long it was (as here) not contended that no reasonable trial court could have made the finding-in-fact, challenge of findings on these grounds was simply not competent. The weight to be given to evidence or the “proper regard” to be accorded to it were matters entirely for the trial court, as was the question of what inferences to draw from the primary facts that it held proved. Even where, as here, the tribunal of fact was not an inscrutable jury but a bench of judges who gave reasons for their findings, the Appeal Court was simply not entitled to substitute its own views for those of the trial judges. It followed that all of the grounds of appeal directed towards issues of “weight” or “proper regard” fell to be rejected as raising matters not within the competence or powers of the Appeal Court. This is emphasised at various points in the Opinion of the Court** but principally in the section headed “The function of an appeal court.***”

* "Proper regard" is an expression used frequently in the written grounds of appeal.

** For examples of grounds of appeal being rejected on this basis, see Opinion of the Court, paras 76, 80, 84, 118, 129,262, 274, 288, 327, 351.

*** See Opinion of the Court, paras 20-27.

Mandela visits Megrahi in Barlinnie

[What follows is excerpted from a report published on The Telegraph website on this date in 2002:]

Nelson Mandela today met the convicted Lockerbie bomber Abdelbaset Ali Mohmed Al Megrahi at Barlinnie Jail in Glasgow and called for a fresh appeal in the case.

The former South African president visited Megrahi for more than an hour at the prison. (...)

Mr Mandela said he also hoped to meet Prime Minister Tony Blair and US President George Bush to discuss the case. (...)

During the 30-minute press conference, Mr Mandela described in detail how a four-judge commission from the Organisation of African Unity had criticised the basis by which Megrahi came to be convicted at a special Scottish court, sitting in the Netherlands, in 2001.

Megrahi was convicted of murder for smuggling a bomb aboard Pan Am Flight 103 which exploded over Lockerbie on December 21, 1988 with the loss of 270 lives.

"They have criticised it fiercely, and it will be a pity if no court reviews the case itself," said Mr Mandela.

He said it had been suggested that the case could go either to the Privy Council or the European Court of Human Rights in Strasbourg.

"From the point of view of fundamental principles of natural law, it would be fair if he is given a chance to appeal either to the Privy Council or the European Court of Human Rights," said Mr Mandela.

Mr Mandela set out his views clearly in what must be the most extraordinary press conference ever held within the Victorian-built jail. He had arrived there earlier amid strict security for his meeting with Al Megrahi - and later in the day, with Al Megrahi's family, also inside the prison.

He travelled there in a people carrier with darkened windows, flanked by police cars and motorcycle outriders. He was taken to see Al Megrahi after meeting prison chiefs.

Mr Mandela, who did not have to undergo any security checks, was escorted to Al Megrahi's living room along with members of his entourage.

Al Megrahi is kept in a cell of his own within the prison, in a section nicknamed by other inmates as Gaddafi's Cafe.

Among those who met Mandela at the prison was Al Megrahi's lawyer, Eddie MacKechnie, who had earlier told reporters of what he claimed was new information which had not been made available to the trial at the time of Megrahi's conviction.

"An 11 million dollar payment was made by the government of Iran to the Popular Front for the Liberation of Palestine General Command two days after the atrocity," said Mr MacKechnie.

He said the information had come from a former CIA officer who had given details of times, dates and bank accounts, adding: "My concern is not simply that there is evidence of such payment, but whether that information was available to any British authorities."

Al Megrahi's case has also been taken up by Labour MP Tam Dalyell, who said today: "It is a thousand pities that Mr Megrahi's pleas to go into the witness box (at his trial) were not heeded."

Mr Dalyell, MP for Linlithgow, who visited Al Megrahi in jail three weeks ago said: "I asked him what he was doing in Malta and he told me in detail how he had been a sanctions buster - getting components for Libyan Arab Airlines because of the sanctions.

"He was going to Nigeria, Brazil and above all to Ethiopia, having contacts with Boeing, in getting much needed parts for aircraft of Libyan Arab Airlines."

UN Lockerbie sanctions against Libya crumble

[It was on this date in 1998 that the Organization of African Unity adopted a resolution stating that as from September 1998 its member states would no longer comply with the United Nations Security Council’s regime of sanctions against Libya for its failure to hand over the Lockerbie bombing suspects for trial in the United Kingdom or the United States because of these two countries' intransigence over neutral state trial proposals that had been accepted by Libya. It was this resolution, along with similar ones from other international organizations such as the Arab League, the Organisation of the Islamic Conference and the Non-Aligned Movement, that finally, ten weeks later, induced the UK and USA grudgingly to accept a neutral venue solution to the impasse. The OAU resolution reads as follows:]

AHG/Dec. 1’27 (XXXIV):  THE CRISIS BETWEEN THE GREAT SOCIALIST PEOPLE’S LIBYAN ARAB JAMAHIRIYA AND THE UNITED STATES OF AMERICA AND THE UNITED KINGDOM

The Assembly of the Heads of State and Government of the Organization of African Unity, meeting in its Thirty-fourth Ordinary Session in Ouagadougou, Burkina Faso, from 8-10 June 1998,

Taking note of the Secretary-General’s Report on the dispute,

Having heard the report of the OAU Committee of Five following its mission to Britain and meeting with the British Foreign Secretary,

Expressing profound gratitude to the Libyan Arab Jamahiriya for the position it has adopted and the positive initiatives it has taken in order to resolve the dispute peacefully,

Welcoming the Judgement announced by the International Court of Justice on 27 February 1998 confirming its competence to look into the dispute,

Welcoming also the positive response of the families of victims to the efforts aimed at the speedy settlement of the dispute,

Expressing its deep concern over immense human and material losses to the Libyan people and nationals of other OAU Member States,

Expressing its regret for lack of positive response by the United States of America and the United Kingdom to the International and Regional Initiatives and efforts aimed at finding a solution to the dispute based on the principles of the international law and within the framework of understanding and constructive dialogue:

1. CALLS UPON the Security Council to adopt a resolution on suspending the sanctions imposed on Libya under Resolutions 748 (1992) and 883 (1993) until the International Court of Justice pronounces its verdict on the issue;

2. DECIDES not to comply any longer with Security Council Resolutions 748 (1992) and 883 (1993) on sanctions, with effect from September 1998, if the United States of America and the United Kingdom refuse that the two suspects be tried in a third neutral country pursuant to the verdict of the International Court of Justice by July 1998, date on which the sanctions will be due for review, owing to the fact that the said resolutions violate Article 27 paragraph 3, Article 33 and Article 36 paragraph 3 of the United Nations Charter, and the considerable human and economic losses suffered by Libya and a number of other African peoples as a result of the sanctions;

3. DECIDES on moral and religious grounds and with immediate effect that the OAU and its members will not comply from now on with the sanctions imposed against Libya related to religious obligations, providing humanitarian emergencies or fulfilling OAU statutory obligations;

4. ENJOINS the OAU Committee of Five to continue its task;

5. MANDATES the Secretary-General to monitor implementation of this resolution and to submit a report thereupon to the next Session of the Council.

Key Lockerbie witness was offered money, former Lord Advocate accepts

[This is the headline over an article published on this date in 2011 on the website of Scottish solicitors’ house magazine The Journal of the Law Society of Scotland. It reads as follows:]

The Maltese shopkeeper whose evidence provided a crucial link in the conviction of Abdelbaset Al-Megrahi for the Lockerbie bombing was offered substantial sums by the police, the Lord Advocate who signed the indictment against Megrahi has accepted.

Lord Fraser of Carmyllie is reported today to have been shown documents disclosing that Scottish police and the FBI discussed offering Tony Gauci "unlimited money", with an initial $10,000, for his testimony. Mr Gauci stated that Megrahi resembled the man who had bought clothes in his shop, remnants of which were linked with the suitcase which exploded in the Pan Am aircraft downed over the Scottish town in 1988. He also denied having been offered inducements.

The former Lord Advocate said such offers should never have happened and he was unaware of them at the time. He had warned the UK and American authorities that everything had to be "done by the book" if there was to be a trial in  Scottish or UK court.

Papers in the possession of the Scottish Criminal Cases Review Commission reveal that Mr Gauci was treated to an expensive holiday in 1991 and that he and his brother each received large sums in reward money.

Megrahi's appeal against conviction following the SCCRC's report was abandoned when he was released on compassionate grounds because of terminal cancer.

[RB: A more detailed account can be read here; and my reaction to the story can be read here.]

Genuinely independent prosecutor needed for JFM criminality allegations

[At its meeting on 21 April 2015 the Scottish Parliament’s Justice Committee resolved to write to the Lord Advocate enquiring how the Crown Office proposed to deal with the forthcoming Police Scotland report on Justice for Megrahi’s allegations of criminal misconduct on the part of police officers, prosecutors and Crown forensic scientists in the Lockerbie investigation, prosecution and trial. This arose out of the suggestion made on this blog that a special prosecutor or independent counsel might be required, in the light of the Lord Advocate’s publicly expressed views about the merits of JFM’s allegations and the character of JFM members. 

The Lord Advocate replied to the committee’s inquiry in a letter dated 8 May: “I had anticipated this as a potential issue some time ago given my involvement in the investigation and the nature of the allegations which have been made.  Arrangements were therefore put in place for an independent Crown Counsel who has not been involved in the Lockerbie case to deal with this matter if and when the need arises.”

JFM’s response to the Lord Advocate’s letter has now been posted on the Justice Committee’s website. It reads as follows:]

Following the Lord Advocate’s 8th May response to the 28th April letter from the Convener of the Scottish Parliament Justice Committee, the Committee of Justice for Megrahi (JFM) wishes to make the following observations. 

If the Lord Advocate is proposing a Crown Office advocate depute as an independent prosecutor to consider any Police Scotland report stemming from the investigation of JFM’s 9 allegations of criminality, known as Operation Sandwood, such a proposal falls well short of JFM’s concept of an independent, unbiased and constitutionally sound approach. 

1. JFM has on several occasions drawn the attention of the Justice Committee to the unprecedented, highly irresponsible and prejudicial public outbursts in which both the Lord Advocate and the Crown Office as a whole have not only grossly distorted the content of our allegations but also vilified us for having had the temerity to level the allegations in the first instance. How can any representative of a body that has described, in the media, JFM’s allegations as being ‘without exception, defamatory and entirely unfounded’ and ‘false and deliberately misleading’ make a fair and unprejudiced consideration of any evidence presented by the police? We believe that by ‘going public’ these authorities, being fully aware of ‘Sandwood’, have destroyed their constitutional independence and have threatened the integrity of that enquiry.  

2. It appears inevitable that these public interventions will have had an effect on potential witnesses. Witnesses are now expected to give evidence against a background of this very public ‘interference’ by Scotland’s senior prosecution authorities. Those authorities have consistently sought to dismiss the ‘conspiracy theorists’ behind the ‘Sandwood’ criminal allegations and to underline their opinion that Mr Megrahi and his accomplices are the only guilty parties in the case. We fear that certain Crown, Police and both expert and ordinary witnesses, encouraged by these statements, might seek to withhold or alter legitimate evidence which they could otherwise give to Operation Sandwood. 

3. In his letter of 8 th May, the Lord Advocate gives the impression that he is disengaging from involvement in consideration of the final police report on the matter. However, if he is responsible for the appointment of the ‘independent Crown Counsel’, from the outset, he clearly plays a pivotal role in the outcome of the prosecutor’s consideration of the report. Any such counsel should be chosen by a person or body entirely outwith the Crown Office. 

4. It is naïve to expect that an advocate depute in the Crown Office, appointed by the Lord Advocate and subject to his instructions, and whose tenure of that office depends entirely upon his decision, is likely to instruct proceedings of any kind and thus effectively say that the Lord Advocate was so publicly wrong. It is also extremely unlikely that he/she will easily set themselves against their colleagues in the Crown Office who have already made their position clear on several occasions. Equally importantly it is certain, no matter the decision reached, that in the minds of the protagonists on either side of the Lockerbie debate, the general public, the media and other commentators, justice will not have been seen to be done. It should be made clear that both the final decision on prosecution and the conduct of any prosecution rest with the independent (and independently appointed) counsel not tainted by any association with the Lord Advocate or any member of the Crown Office. 

5. Moreover, given that the Lord Advocate is head of Scotland’s prosecution service, it would seem inevitable that any final conclusions arrived at by the ‘independent’ prosecutor he mentions would, by dint of his position, find their way onto the Lord Advocate’s desk for the ultimate stamp of approval.  

6. Whilst JFM is, quite correctly, not privy to the operational detail relating to ‘Sandwood’, we have been most impressed by the diligence and professionalism of the officers working on the allegations. In the course of their investigations, Police Scotland have been working in tandem with an independent QC: how then will the Lord Advocate’s proposal fit together with the role already being played by Police Scotland’s QC? 

It is plain to see from the unethical, prejudicial and ill-judged statements issued by the Crown Office that there is a straightforward conflict of interests with respect to any role which that body can play in this case. 

The UK is signed up to the United Nations International Association of Prosecutors (IAP). In its pronouncements, the Crown Office has displayed a flagrant contempt for and disregard of the IAP principles as laid out in the IAP document Standards of Professional Responsibilities and Statement of Essential Duties and Rights of Prosecutors. Particularly, but not exclusively, these responsibilities include the duty of a prosecutor not to act in their own interest but always to serve and protect the public interest, be free from political interference, and generally be consistent, independent, impartial and transparent (as outlined in articles 1 through 4). The Crown Office is clearly in breach of these principles, and, as previously mentioned, no person currently in Crown Office can be impartial. The Report must be made to a totally independent person. http://www.iap-association.org/getattachment/34e49dfe-d5db-4598-91da-16183bb12418/ Standards_English.aspx 

The UK is also signed up to the Council of Europe. In its document The Role of Public Prosecution in the Criminal Justice System, adopted by the Committee of Ministers of the Council of Europe on 6th October2000.

Article 1 states: ‘Public prosecutors’ are public authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system.’

Article 9 states: ‘With respect to the organisation and the internal operation of the Public Prosecution, in particular the assignment and re-assignment of cases, this should meet requirements of impartiality and independence and maximise the proper operation of the criminal justice system, in particular the level of legal qualification and specialisation devoted to each matter.’ 

Article 24 states: ‘In the performance of their duties, public prosecutors should in particular: a. carry out their functions fairly, impartially and objectively.’ 

Article 34 states: ‘Interested parties of recognised or identifiable status, in particular victims, should be able to challenge decisions of public prosecutors not to prosecute; such a challenge may be made, where appropriate after an hierarchical review, either by way of judicial review, or by authorising parties to engage private prosecution.’ http://www.procuracassazione.it/procuragenerale-resources/resources/cms/documents/ COE_CM_20001006_Recommendation_2000_19_en.pdf

The Crown Office has turned Scottish justice into an embarrassing, laughing stock and developed this case into a running sore. We strongly believe that in order to acquire a fair, unprejudiced and truly independent reading of the final police report a special prosecutor must be appointed by a process independent of the Lord Advocate and the Crown Office, and must be seen to exercise his/her decision-making and prosecutorial functions without reference to the Lord Advocate and the Crown Office. 

Since the Lord Advocate’s position and independence as head of the prosecution system in Scotland is enshrined in the Scotland Act, such a mechanism must be put in place by the Lord Advocate himself, failing which, the Scottish Government should seek from the UK Government a section 30 Order in Council to enable the Scottish Government to do so. 

On 28th February 2007 the then Lord Advocate, Dame Elish Angiolini, in giving the inaugural KPMG Annual Law Lecture highlighted the position of the Lord Advocate in the 21st century by stating:  

‘The fact that prosecution decisions are taken independently does not mean that they are taken unaccountably. It is for the Parliament to decide whether the Lord Advocate is carrying out that vital function to its satisfaction, not as a matter of party politics, but as a matter of sound administration. 

‘The result is that the present system leaves an inefficient Lord Advocate, or an irresponsible Scottish Executive, nowhere to hide. If the prosecution system fails, then Parliament can hold the Lord Advocate, and the administration of which she forms a part, accountable for that failure. 

‘As Lord Advocate, I exercise considerable powers, and carry great responsibilities. And no sensible Minister ever takes Parliament lightly. I note, in passing, that the Justice Committees of the Scottish Parliament routinely scrutinise the work of the Law Officers. That notion is also now being discussed at Westminster. I would like to make one further point, touching on accountability. The prosecutor's judgement in starting a prosecution is clearly justiciable in the courts. That is as it should be.’ http://www.publications.parliament.uk/pa/cm200607/cmselect/ cmconst/ 306/306we13.htm  

This seems to be pertinent and timely advice to the present holder of this historic office.

Throughout all of this, it appears that the Crown Office, in pursuit of obtaining and maintaining convictions above any other principle, has lost sight of its most fundamental raison d’être: the service of justice.