A fair re-examination of all the evidence is exactly what we have been calling for all along

[What follows is the text of a letter from Dr Jim Swire published in The Times today (but which, as far as I can see, does not appear on the newspaper’s website):]

Magnus Linklater has a long record of articles defending the story presented at the Zeist court in 2000-01, which claimed that a Libyan (Abdul Baset Ali al-Megrahi) sent the Lockerbie bomb by air from the island of Malta.

In his Opinion article (July 8), however, he claims that most lawyers up to and including several lord advocates would relish seeing the case back in court.

A fair re-examination of all the evidence is exactly what we UK relatives have been calling for all along.  Welcome, Magnus, to the ranks of those who seek such a resolution. May I sit by you in the court's public gallery please?

US agents pursue Lockerbie claim

[This is the headline over a report published in The Herald on this date in 1994. It reads as follows:]

United States investigators are still keen to establish the veracity of the claim by a Palestinian revolutionary that he, and not two Libyans, carried out the 1988 Lockerbie airliner bombing.

Yesterday, the US State Department said it would pursue the confession although, privately, Washington sources say the confession is not to be trusted. However, their position varies from that of the Foreign Office in London and the prosecuting authorities in Scotland, who have indicated that the Western allies' policy of prosecuting the two Libyans is still the only one they wish to pursue.

Three weeks ago, Youssef Shaaban, a member of the Abu Nidal Revolutionary Council Faction, who is on trial for the murder of a Jordanian diplomat, was reported to have confessed to the bombing of PanAm flight 103 which killed all 259 people on board and 11 on the ground.

Almost immediately, the situation was confused, first with claims that Shaaban had been misquoted and then with a subsequent claim that he had ''confessed'' only under ''coercion and torture''.

In November, 1991, the US and Britain accused Libyans Abdel Basset Ali Mohamed al-Megrahi and al-Amin Khalifa Fhimah of having carried out the Lockerbie atrocity.

The indictments against the pair, who are alleged to be members of the Libyan secret service, were issued by the Crown Office in Scotland. The US and British governments, backed by the United Nations, have made repeated, unsuccessful, demands for their extradition to stand trial in Scotland.

[RB: More on this intriguing story can be found in the following articles:  

I planted Lockerbie bomb, says Palestinian;

Palestinian claims he placed bomb on Pan Am 103; and
Abu Nidal sows chaos from the grave.]

An untested appeal is a disservice to justice

[This is the headline over an article by Magnus Linklater in today’s edition of The Times (behind the paywall). It reads as follows:]

Families of the 7/7 victims at least have resolution but in the case of Lockerbie the truth may now be buried for ever

For the victims of the 7/7 attacks in London, the memorials yesterday may have helped to draw a line under an atrocity that robbed families of those they loved and tore apart their lives. By now they have gathered most of the detail of what happened on that day. They know who did it; they have pieced together the last moments of those who died; the gaps in their knowledge have been steadily filled.

For the families of the Lockerbie victims, 26 years have passed without the same resolution. For some, such as Jim Swire, whose daughter Flora was killed in the bombing, there is the visceral conviction that the wrong man was targeted and that the trail to Libya was a false one. Others, like the redoubtable Tam Dalyell, share that belief. It will stay with them for ever; nothing will convince them otherwise. For others — equally certain that the right man was convicted — there is the frustration of not knowing who ordered the attack. Abdul Baset Ali al-Megrahi, found guilty on the evidence of placing the bomb on board a feeder flight from Luqa airport in Malta, could not, they believe, have acted alone. Who gave the orders remains an unanswered question.

Last week, three appeal judges rejected the final route open to those who wished to bring the Lockerbie case back before the courts. Only the family of a dead man can appeal his conviction, they ruled; campaigners for relatives of the victims have no such legal standing. Since al-Megrahi’s family in Libya were unwilling or unable to back the appeal, that marked the end of a long narrative of rumour, doubts, suspicions and accusations that reach back almost as far as the attack itself.

The story will not, of course, end here. Already campaigners have announced that they intend to pursue their quest “for justice”. Within hours of the decision, Robert Black, QC, a Lockerbie man who was partly responsible for the original trial being held in the Netherlands, criticised the Scottish legal system for being “too rigid” in refusing the appeal and said it was predictable that the judges had rejected it. They “bristled with discomfort”, he wrote, at the prospect of the case being brought back, in case the conviction fell apart. [RB: I have said or written no such thing. What I did do is post on this blog a letter from Thomas Crooks in The Scotsman where such comments are made.]

Actually, the reverse is true. Most lawyers, up to and including several lord advocates who have been involved in the prosecution case or have studied it in detail, would relish seeing it back in court — if only to subject the conspiracy theories to forensic cross-examination and to see them fall apart. Investigators have been labelled corrupt, stupid or simply blinkered for failing to challenge the prosecution case. They would welcome the chance to contest that view.

For all the heated controversy that has surrounded police and lawyers involved in putting together the case against al-Megrahi, none of the counter-theories have stood up to scrutiny. They have been paraded in books, TV programmes and articles, but they have always foundered on an absence of hard evidence. Suggestions, for instance, that the bomb was loaded at Heathrow rather than in Malta remain in the domain of speculation rather than of sustainable proof. The idea that the critical fragment of a timer linking the bomb to the Libyans was planted, altered, or swapped requires a leap that would be thrown out in any serious court of law. The explanations offered as to what al-Megrahi was doing in Malta at precisely the time that the bomb was loaded, and how it came to be wrapped in clothes bought in a local shop, have been as unconvincing as they have been varied.

The case that exonerates the Libyans, while at the same time attempting to explain away the hard forensic and circumstantial evidence that links them to the bombing, is almost as tortuous as the negotiations that persuaded Colonel Gaddafi to surrender the two men accused of the bombing to face a Scottish trial.

The Justice for Megrahi campaign relies ultimately on the lengthy report of the Scottish Criminal Cases Review Commission (SCCRC), which spent three years on the most detailed examination of the evidence ever carried out; which had the right — and exercised it — to summon every witness cited by those who argued that the conviction was unsafe; and which dismissed each and every counter-theory that came before it.

It did, however, produce six grounds for appeal, and it is on those that al-Megrahi’s defenders rely in arguing that the case was a miscarriage of justice. They centre, largely, on delays by the Crown in producing key pieces of evidence and on details of how the evidence of Tony Gauci, the Maltese shopkeeper who sold the clothes used to wrap the bomb, was handled. The campaigners claim that this evidence would have blown the prosecution case out of the water. That is unlikely. Most independent experts who have examined all, rather than part, of the evidence, say that none of the six grounds for appeal would have been sufficient to overturn the prosecution case.

The sad fact is that we will never know. The gulf that separates the sides in the story is too wide to be bridged. The proof may be out there in the turmoil that is Libya today. But even were it now to emerge, who would believe it? Time, in a case like this, does little to heal — it merely cements deep-seated suspicions. If nature abhors a vacuum, then an untested appeal is a disservice to justice. Without that final process, the truth is buried for ever.

[RB: Yet more misrepresentation by Magnus Linklater of the evidential flaws in the Megrahi conviction. His blinkered stance has been exposed time and again by John Ashton, amongst others.  Here is a link to one of Mr Ashton’s pieces demolishing the Linklater arguments: Lockerbie, and the mangled logic of Magnus Linklater.]

Finger of blame for Lockerbie pointed at American citizen

[This is the headline over an article by Derek Lambie published in the Sunday Express on this date in 2007.  It reads as follows:]

In a sensational twist, Abu Elias, currently living near Washington DC, will be named with others believed to be in the Popular Front for the Liberation of Palestine - General Command (PFLP-GC) as part of a terror cell behind the Pan Am disaster.

Lawyers claim the radical Palestinian organisation was hired for $10million to avenge the shooting down of an Iranian airliner by the US five months earlier.

Two weeks ago Libyan Abdelbaset Ali Mohmed al-Megrahi, 55, was given the right to appeal his conviction.  Elias - who has a new identity the Sunday Express cannot divulge - is the nephew of the terror group's leader, Ahmed Jibril, the man believed to be the mastermind of the bombing.

The Sunday Express understands new documents - likely to form the basis for al-Megrahi's appeal - show the American was described as "the primary target" early in the investigation.  They also state he conspired with Mohammed Abu Talb, an Egyptian named by Dumfries and Galloway Police as the initial chief suspect.

Lockerbie relatives last night said they are more convinced than ever that the PFLP-GC are the perpetrators of the atrocity. Dr Jim Swire, who lost daughter Flora in the disaster, said: "My view has always been that Abu Talb was involved but that he was not the actual bomber. This development is encouraging and opens new avenues."

Pan Am Flight 103 was just 38 minutes into its journey from London to New York when it was blown up.  Investigators concluded a Semtex bomb was in a cassette player rigged with a Swiss electronic timing device.  Al-Megrahi was convicted in 2002 following a £75million trial at a Scottish Court, at Camp Zeist in the Netherlands, although his co-accused Al-Amin Khalifa Fahima was cleared.

But the Scottish Criminal Cases Review Commission (SCCRC) has identified six grounds where it believes a miscarriage of justice may have occurred, with its main focus on the evidence from Tony Gauci, who said  al-Megrahi had come into his shop in Malta and bought clothes found at the scene of the disaster.

With the decision, the finger of blame is once again being pointed at the PFLP-GC. Jibril was suspected of organising the bombing on behalf of Iran as revenge on the US for shooting down Iran Air 655 over the Persian Gulf in 1988.

Evidence submitted to the SCCRC named Jibril, now 79, as the mastermind, with his nephew working with Abu Talb, a member of a splinter group and later jailed for life in Sweden for a bomb attack that left one person dead.

The defence case included a US Defence Intelligence Agency cable from September 24, 1989, which states: "The bombing of the Pan Am flight was conceived, authorised and financed by Ali-Akbar (Mohtashemi-Pur), the former Iranian Minister of Interior.

"The operation was contracted to Ahmad Jabril (sic)... for $1million. The remainder was to be paid after successful completion of the mission."

Documents viewed by the Sunday Express allege the plot began when a man named Mobdi Goben supplied material for the bomb to Hafez Dalkamoni, the leader of the PFLP-GC's European cell. He was then introduced to the alleged bomb maker Marwan Khreesat, by Elias, who has both Syrian and American passports.

Very little is known about Elias, but the defence insists he was paid in travellers' cheques by terror leader Dalkamoni in Cyprus, before he took delivery of the bomb in Frankfurt.  Elias was identified as the key suspect although it was never explored in court, even after documents about his role suddenly emerged during the trial.

The Goben Memorandum, said to have been written by a dying member of the PFLP-GC, was handed to the Lord Advocate detailing the group's activities and a confession about Elias. Elias was concerning the FBI before the bombing and was quizzed about cheques deposited in his bank. In August 1988 he met with agents, who knew he was Jibril's nephew. While the SCCRC said there is dubiety over whether Gauci had correctly identified al-Megrahi, documents show the shopkeeper had no such problems identifying Abu Talb.

Despite the evidence, the investigation took an unexpected twist and the Syrian terror group's suspected role in the disaster was dropped. Meanwhile, it emerged Talb could be brought to trial in Scotland because he does not have lifetime immunity from prosecution as had been believed. During al-Megrahi's trial there was a widespread belief he had been given Crown protection for giving evidence. However, the Crown Office yesterday confirmed he does not have immunity.

Restoration of UK diplomatic relations with Libya

On this date in 1999, three months after the arrival of Megrahi and Fhimah at Zeist, diplomatic relations between the United Kingdom and Libya were restored, having been broken off in April 1984 following the shooting of PC Yvonne Fletcher. The announcement was made in the House of Commons by the Foreign Secretary, Robin Cook. Mr Cook’s statement is well worth reading, as are the contributions to the debate that followed, particularly those of Tam Dalyell and Sir Teddy Taylor.

System too rigid for Lockerbie justice

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

Predictably, three of Scotland’s judges rejected the contention of the families of the Lockerbie victims that they should be allowed to appeal the conviction of Abdelbaset al Megrahi.

Understandably, the legal establishment bristles with discomfort at the prospect of the conviction being exposed to further scrutiny, if the Scottish Cases Criminal Review Commission (SCCRC) refers the case back to the Court of Appeal. Given the murderous chaos that is tearing Libya apart, the SCCRC may not get the necessary instructions regarding an appeal from Megrahi’s family – hence the contention of the families of the victims that they should be allowed to appeal on behalf of Megrahi.

At stake here is the very concept of justice. Megrahi’s conviction is pervasively flawed.

The Crown’s “star” witness, the Maltese shopkeeper, was made aware of the “Reward for Justice” programme, created by the American Justice Department to elicit information that would lead to a conviction.

The “star” witness knew that evidence that would exonerate Megrahi would not yield a “reward”.

That fact alone is enough to shred his credibility as a witness and therefore the credibility of the Crown’s case against Megrahi.

Lord Carloway, one of the judges who ruled that the families could not pursue an appeal, explained the court’s decision: the law “was not designed to give relatives of victims a right to proceed in an appeal for their own or the public interest”.

In mature, sophisticated jurisdictions, “the law is designed” to facilitate 
justice.

If the “design” has the effect of impeding that objective, a mature judiciary would modify the “design” to accommodate justice. In bowing to the “design” of the law by declaring that the families should not be allowed to appeal on Megrahi’s behalf, Scotland’s judges displayed an immature capacity for rigid inflexibility – and thereby ensured that any further exposure of the “merits” of the Crown’s case was conveniently, and perhaps permanently, delayed.

Dr Jim Swire tests airport security -- it fails

[What follows is the text of an article published in the Los Angeles Times on this date twenty-five years ago:]

Jim Swire hardly looked like a man with a bomb as he opened his suitcase for a security check at Heathrow Airport before boarding a flight to New York.

Swire was dressed in a conservative gray suit and, as he has every day for the past 18 months, he wore a blue lapel button bearing the words: "Pan Am 103. The Truth Must Be Known."

His 23-year-old daughter, Flora, and 269 other people were killed when Pan American Flight 103 was blown up by a terrorist bomb over the Scottish town of Lockerbie on Dec 21, 1988.

Unlikely as it might seem, Swire was carrying a device almost identical to the terrorist bomb as he arrived at Heathrow on May 18 to board British Airways Flight 177 for New York, where he planned to meet relatives of American victims of the disaster. The security check at Heathrow failed to turn it up.

"You simply cannot imagine how depressing it was flying over the Atlantic knowing that there could easily be a bomb in the cargo hold below," Swire said in an interview this week. He knew, of course, that his hidden device was not real. Like the terrorists', his was in a cassette-recorder. The only difference was that theirs was packed with Semtex, a plastic explosive that smells like the almond confection marzipan, and his contained real marzipan.

Swire made public the success of his dramatic demonstration this week when he held a press conference and a series of meetings with officials in London.

His experiment has refocused public attention on the Lockerbie incident. It has touched off new controversy, reawakened the emotions of the victims' relatives and added to the fears of the flying public that international airport safety has not improved significantly since the Lockerbie disaster.

"This was not a prank," Swire said. "It was a serious experiment, and unfortunately it succeeded. Here, 18 months after Lockerbie, one can take an identical device through security. I find that very depressing."

Swire's suitcase was, in fact, examined before he was permitted to board his flight. A security guard looked carefully at the cassette-recorder, which was just like the one described in a warning by West German intelligence several weeks before the Lockerbie disaster, complete with pressure-gauge timer, extra batteries and a dummy detonator.

The doctor had deliberately exposed part of the marzipan, which resembles Semtex, but the guard asked only if the batteries had been removed. When Swire assured him that they had, he was waved through. After disclosing his airport trickery, Swire met with Cecil Parkinson, the secretary of state for transport, and Parkinson announced that a new investigation into airport security lapses will be undertaken.

Swire, who heads a group of victims' relatives called the UK Families Group, said he is still skeptical that the group will realize its goal of getting at the truth behind the bombing.

In their exhaustive search for clues that could lead them to the Lockerbie terrorists, investigators have uncovered a wealth of detail. They have traced clothing in the suitcase that contained the bomb to a manufacturer in Malta, who sold it a month before the bombing to a suspect now in custody in Sweden on other bombing charges. [RB: This is, of course, a reference to Abu Talb.]

Scottish investigators say that other evidence has significantly narrowed the list of suspects, among them members of the Popular Front for the Liberation of Palestine [-General Command]. But they say there is not enough evidence to make arrests.

Last week, Scottish authorities announced that a public hearing into the Lockerbie case will begin Oct 1 in the town of Dumfries. Swire said that he and the other relatives of victims are impressed with the thoroughness of the investigation so far, but he criticized the authorities for delaying the public hearing for almost two years.

"I'll be a lot more impressed," he said, "when the criminals who did this are brought to justice."

This week, Swire had to face an inquiry of his own. He was called before investigators at Heathrow Airport who are considering filing criminal charges against him for the marzipan incident.

Swire said he had considered his plan "very, very carefully" and took pains not to alert any passengers and not to put the cassette-recorder in his carry-on luggage, where it might have led to a midair recall of the flight.

"Everybody is different in how they cope with their grief," he said. "Keeping a high profile, as I have, is my way of coping with my grief. And that will not go away."

Investigation badly off the rails from earliest weeks

[What follows is the text of a letter from Dr Morag Kerr, published on page 25 of today’s edition of The National:]

While in principle I have some sympathy with the High Court’s view that relatives of the victim should not be permitted to appeal a murder conviction, the recent ruling against the relatives of some of the Lockerbie victims would be less concerning if the Lord Advocate and the Crown Office had not spent the last five years choking off every attempt to pursue other avenues, insisting that an appeal application by these very people was the only proper way to pursue their concerns (Lockerbie families lose bid to appeal al-Megrahi verdict, The National, July 4).

In my opinion the Crown Office now knows perfectly well that the original Lockerbie investigation was badly off the rails from the earliest weeks. Conclusive evidence showing the bomb to have been introduced at Heathrow was ignored, leading to the two-year pursuit of a red herring down the blind alley that led to Malta airport and the unfortunate Abdelbaset al-Megrahi. I explain this clearly in my book Adequately Explained by Stupidity? (Matador 2013), which was submitted to the SCCRC by the legal team as part of the appeal application. Make no mistake, this new analysis of the forensic evidence proves Megrahi’s innocence beyond doubt

1988: Iran Air 655 - Casus Belli Behind Lockerbie Bombing?

This is the headline over an article by Caustic Logic which was originally published in March 2010 but which was re-published yesterday to mark the twenty-seventh anniversary of the shooting down of Iran Air flight 655 by the USS Vincennes. It is the clearest treatment of which I am aware of the evidence (and there’s quite a lot of it) supporting the thesis that the bombing of Pan Am 103 was an Iranian-financed operation motivated by desire for revenge for the destruction of Iran Air 655, an operation in which Libya had no, or at most peripheral, involvement.   

Questions still need answering

[This is the headline over an editorial in today’s edition of the Morning Star. It reads as follows:]

Yesterday’s ruling by the Appeal Court in Edinburgh against Lockerbie family survivors’ bid to challenge the conviction of Abdelbaset al-Megrahi cannot be the last word.

Lord Justice Clerk Lord Carloway ruled that the law was “not designed to give relatives of victims a right to proceed in an appeal for their own or the public interest.”

But, if so, there has to be another mechanism to deliver justice not only to Megrahi’s family but also the relatives of all 270 people murdered on December 21 1988 when a bomb blew up Pan Am Flight 103 over Lockerbie.

The Morning Star has made no secret of its longstanding disquiet over the legal charade that led to the Libyan security official’s conviction.

Dr Jim Swire, whose daughter Flora was among the casualties, has been relentless in his efforts to discover the truth, meeting the scapegoat before he died and continuing to campaign after Megrahi’s death.

He has refused to be fobbed off by official opacity and convenient but clearly flawed legal proceedings.

US and British authorities have offered differing explanations of how Flight 103 met its fate.

Their first thesis was that the atrocity was a revenge attack masterminded by elements within the theocratic regime in Tehran in response to the shooting down by a US warship of an Iranian civilian passenger plane over the Persian Gulf in July 1988, killing all 290 people on board.

The crime was said to have been contracted out to a Palestinian splinter group, but this theory, proclaimed with great authority, fizzled out in the run-up to the first Iraq war in 1990.

When Washington began building a coalition to oppose Saddam Hussein’s invasion and planned annexation of Kuwait, Iran was persuaded to jump on board.

In contrast, Libyan leader Muammar Gadaffi threw his country’s support behind Iraq.

Tripoli rapidly filled the scapegoat pigeonhole vacated by Iran, with US “intelligence” agents concocting an implausible scenario that involved Megrahi and other Libyan officials placing a bomb on Flight 103 in Malta.

The real conspiracy, that undertaken by US spooks, included bribery of Maltese shopkeeper Tony Gauci to testify that he remembered Megrahi buying clothing in his shop shortly before the flight, fragments of which were discovered in the wreckage around Lockerbie.

The approach of most British MPs to what is self-evidently a miscarriage of justice has been one of indifference.

Their attitude reflects a viewpoint that the key players — victims and supposed perpetrator — are all dead, so move on.

Some point out that Gadaffi stumped up $2.5 billion in compensation for the families of those killed in the bombing, but this ignores the fact that this payment was a quid quo pro for the US and its allies dropping their embargo of Libya and resuming trade and investment links.

It was as cynical a payoff as the CIA agents’ sweetener to their Maltese “witness.”

Dr Swire is as intent as ever on finding out what really happened, pointing out last year that his daughter “was brutally murdered in a situation where it’s clear that the national protection security services had abysmally failed.

“Do you not think that even 25 years later you might want to feel that you had a status in discovering the truth about who murdered her and why she was not protected?”

Whatever the finer points of interpretation over the design of current law, too many questions still remain over Lockerbie for the grass to be allowed to grow over this inquiry.

Lockerbie families lose bid to appeal al-Megrahi verdict

[What follows is excerpted from a report in today’s edition of The National. It provides further details about the arguments advanced during yesterday’s hearing on the SCCRC’s Megrahi petition:]

An attempt to appeal the conviction of Abdelbaset al-Megrahi by families of those who died in the Lockerbie bombing has failed.

Judges at the Appeal Court in Edinburgh said legally the bid had to be rejected as the families could not be considered to have a “legitimate interest” in the appeal. (...)

Yesterday’s hearing came about after the Scottish Criminal Cases Review Commission (SCCRC), which is looking at Megrahi’s conviction, asked the Appeal Court in Edinburgh for guidance on whether members of the victims’ families can take forward an appeal.

Previous rulings mean a post mortem appeal can only be requested by the executor of a dead person’s estate or their next of kin.

The panel of three judges had heard legal arguments from Ailsa Carmichael QC on behalf of the SCCRC and Gordon Jackson QC for the relatives.

Carmichael told the court the SCCRC needed to determine at an early stage if relatives of victims were considered to be a “person with a legitimate interest to pursue an appeal”.

This, Carmichael said, was necessary to know before the SCCRC could decide to refer the case back to the High Court for a third appeal.

She said: “It would be a waste of public funds for the [SCCRC] to move into a full consideration of whether to make a reference and carry out all the investigations that would be required in order to take that decision if they have a reasonable apprehension as to whether there will be anybody to pick up an appeal in the event a reference was made.”

Jackson said it wrong to worry about the public funds given all the work that has already gone into the case.

He said: “If [the families] believe, as they do, that a miscarriage of justice has happened and there has been a wrongful conviction, as they do believe, in the case of the death of their relative then that in my submission is a legitimate interest.”

Delivering his report yesterday, the Lord Justice Clerk Lord Carloway, sitting with Lord Brodie and Lady Dorrian said the law was “not designed to give relatives of victims a right to proceed in an appeal for their own or the public interest” and the relatives of those who died could not be considered to have a “legitimate interest”.

Dr Jim Swire and the Reverend John Mosey, who both lost relatives in the Lockerbie bombing stood with Aamer Anwar, the solicitor for the Megrahi family and 26 British relatives of Lockerbie victims, to deliver a statement outside the court.

Anwar said: “It is regularly claimed that we place victims at the heart of our justice system.

“So why should the families of murder victims not have a legitimate interest in seeking to overturn the wrongful conviction of a person convicted of the murder of their loved ones? Justice does not die with the accused in this case Abdelbaset al-Megrahi.

“Despite 26 long years since the Lockerbie bombing the families will not give up their fight for justice and the truth.”

Anwar said that the legal battle was not concluded, as he remains instructed by the family of al-Megrahi who seek to overturn the conviction. (...)

It was the first time in UK legal history relatives of murdered victims have united with the relatives of a convicted deceased in such a way.

However, the SCCRC previously said that they have struggled to get proof from al-Megrahi’s family members of their wish to be involved in any appeal. 

[RB: Unlike the SCCRC, apparently, I have no doubt that Aamer Anwar is instructed by the Megrahi family (including the son who is the equivalent of Abdelbaset’s executor under Libyan law) to pursue a further appeal. I have seen the relevant documents and have had contact, through Facebook, with members of the family.]

Court's reasons for holding victims' relatives not entitled to pursue Megrahi appeal

[What follows is the text of the statement made by the Lord Justice Clerk, Lord Carloway, when the High Court today ruled that victims’ relatives are not entitled to pursue an appeal on behalf of a deceased convict:]

“The court will furnish a full written Opinion to the Scottish Criminal Cases Review Commission in terms of the statute (section 194(d)(3) of the Criminal Procedure (Scotland) Act 1995) in early course. At this stage, it will give brief oral reasons for its decision.

The application raises a sharp point of statutory interpretation. Section 303A(1) of the 1995 Act permits ‘any person’ to apply to the court for an order authorising him to institute or continue any appeal which could have been authorised by a convicted person who is deceased. Subsection 303A(4), however, assumes that it will be the executor of the deceased who will do so. It continues by referring also to an applicant who ‘otherwise appears to the court to have a legitimate interest’. This application on behalf of the Commission raises a general question of the scope of that phrase. The more particular issue is whether it extends to the relatives of deceased victims of a deceased convicted person and, presumably, in other cases, to the victims themselves.  

The court does not consider that this statutory provision applies to the relatives of the deceased’s victims in this case.

First, on a plain reading of the statute, the person who has a right to make an application for authority to instruct or continue an appeal is the executor, who is the personal representative of the deceased. This is demonstrated by subsection (5), whereby the person authorised to institute or continue the appeal steps into the position of the deceased in the appeal. He does not represent a separate interest. The Scottish criminal justice system does not, at present, allow victims or relatives of victims to be direct participants in criminal proceedings. The court does not consider that this provision was intended to provide such a right, just because the convicted person is deceased.  

Secondly, to decide otherwise would reverse a central element in criminal proceedings in this jurisdiction. If that were what was intended, the court would have expected it to have been spelled out clearly in the statute.  

Thirdly, in recommending this mode of procedure, the Sutherland Committee referred to persons who could demonstrate ‘good reason for pursuing an appeal, for example a personal or business partner, close relation or executor’; that meaning a close relative of the deceased, who might wish to clear the convicted person’s name posthumously and to persons with, for example, an interest in the estate of the deceased who may be affected financially by the conviction. The discussion by the Sutherland Committee provides a helpful aid to construction, were that required.

What the statute is intended to provide is an avenue whereby an executor as of right, and others in a similar relationship with the deceased, can continue or institute appeal proceedings. It is not designed to give relatives of victims a right to pursue an appeal for their own, or the public, interest in securing that miscarriages of justice should not occur.”