Donald Macaulay QC and Lockerbie

Lord Macaulay of Bragar QC died on this date in 2014.

After charges were brought in November 1991 against Abdelbaset Megrahi and Lamin Fhimah their Libyan lawyer, Dr Ibrahim Legwell, formed a team of lawyers from countries with an interest in the Lockerbie case, including Scotland and the United States, to advise and assist him. One of the Scottish lawyers on that team was Donald Macaulay QC. At a meeting held in Tripoli in October 1993 (referred to in the media as a "legal summit") this legal team advised Megrahi and Fhimah not to surrender themselves for trial in Scotland. It was in response to this decision (which came as a considerable shock to the Libyan Government) that I formulated a scheme for a non-jury Scottish court to sit in the Netherlands. The story is told in more detail here.

I remain of the view that the advice given by the international legal team to Megrahi and Fhimah was unfortunate.  I am convinced that if the pair had been tried by an ordinary Scottish jury conscientiously following the standard instructions that juries are given about how to approach their decision-making and the assessment of the evidence led before them (including burden and standard of proof), both accused would have been acquitted.

Donald Macaulay was not a brilliant lawyer, but he was a quite magnificent jury advocate. Had I ever been charged with a serious crime, I would have wanted him to defend me. Head and shoulders above all of today's High Court "stars".

Hillary Clinton, Lockerbie and Gaddafi

What follows is the text of an item originally posted on this blog on this date in 2014.

Clinton: Gaddafi responsible for Lockerbie bombing

[This is the headline over a report in today’s edition of The Scotsman.  It reads in part:]

Hillary Clinton thought that former Libyan leader Muammar al-Gaddafi was a “terrorist who could never be trusted” because he was behind the Lockerbie bombing.

Writing in her memoir, which was published yesterday, the former US secretary of state said the Libyan leader was a “criminal” and she did not believe a thing he said.

Mrs Clinton also says that she felt a personal connection to the Lockerbie tragedy because 35 of the victims were from New York, where she was a senator at the time.

The disclosure is in her new book called Hard Choices which was released yesterday after being highly anticipated in Washington. The book’s release is being seen as the first step on a potential run for the presidency in 2016 by Mrs Clinton, 66. (...)

She ... writes how in 1988 “Libyan agents” planted the bomb that caused Pan Am Flight 103 to explode whilst flying over Scotland. Some 189 Americans died in the terrorist attack, along with 43 Britons.

Libyan Abdelbaset Ali Mohmed al-Megrahi was the only man convicted of the atrocity and served eight years of his sentence in Scotland before being freed on compassionate grounds in 2009 because doctors said he had cancer and would be dead within three months. Yet in an embarrassment to the Scottish Government and Kenny MacAskill, the justice secretary, Megrahi went on to live for nearly three more years in Tripoli. The row strained relations between the UK and the US with senior senators and relatives of those who died [RB: US relatives] branding it “outrageous”.

In her memoir, Mrs Clinton makes clear that she was under no illusions about the regime she was dealing with. She writes: “In my eyes Quaddafi (sic) was a criminal and a terrorist who could never be trusted…” (...)

Of the victims of Lockerbie, 35 were students from Syracuse University in New York. She writes: “I knew some of their families when I represented them in the US senate.”

A Scottish Government spokesman said: “Mr Al-Megrahi was convicted in a court of law and his conviction was upheld on appeal. The Crown Office and Procurator Fiscal Service have made clear that the Lockerbie case remains a live investigation and that Scotland’s criminal justice authorities will rigorously pursue any new lines of inquiry.”

[It is interesting that the Scottish Government spokesman does not punt the usual Crown Office line (or should that be “lie”?): "The evidence upon which the conviction was based was rigorously scrutinised by the trial court and two appeal courts, after which Megrahi stands convicted of the terrorist murder of 270 people.”  Is it just possible that my efforts in pointing out this particular instance of Crown Office dishonesty have borne fruit?

Another article in today's edition of The Scotsman can be read here: United quest for Lockerbie justice.] 

Mandela calls for fresh Megrahi appeal

[What follows is the rext of a report published on the website of The Guardian on this date in 2002:]

Former South African president Nelson Mandela today called for a fresh appeal in the case of the Lockerbie bomber Abdel Baset al-Megrahi, and asked that the prisoner be transferred to serve out his sentence nearer his native Libya.

Mr Mandela met with al-Megrahi for more than an hour at Glasgow's Barlinnie prison, where he is serving a life sentence for murder. Megrahi was convicted last year of smuggling a bomb aboard Pan Am Flight 103, which exploded over Lockerbie on December 21 1988. The bombing killed 270 people.

Mr Mandela today called for Scottish authorities to consider Megrahi serving his term in a Muslim country closer to his family.

"Megrahi is all alone," Mr Mandela told a packed press conference in the prison's visitors' room. "He has nobody he can talk to. It is a psychological persecution that a man must stay for the length of his long sentence all alone."

Mr Mandela added: "It would be fair if he were transferred to a Muslim country - and there are Muslim countries which are trusted by the west. It will make it easier for his family to visit him if he is in a place like the kingdom of Morocco, Tunisia or Egypt."

Mr Mandela also hopes to meet the prime minister, Tony Blair, and the US president, George Bush, to discuss the case.

Mr Mandela, who spent more than 20 years as a prisoner of South Africa's apartheid regime, said Megrahi was being "harassed" by other inmates at Barlinnie.

"He says he is being treated well by the officials but when he takes exercise he has been harassed by a number of prisoners. He cannot identify them because they shout at him from their cells through the windows and sometimes it is difficult even for the officials to know from which quarter the shouting occurs," he said.

During the 30-minute press conference, Mr Mandela described in detail how a four-judge commission from the Organisation for African Unity had criticised the basis by which Megrahi came to be convicted.

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

Mr Mandela played a crucial role in persuading Libya to hand over the two men suspected of the bombing to be tried in a Scottish court in the Netherlands. He has been in touch with the Libyan leader, Colonel Gaddafi, about Megrahi's case.

Today the Labour MP Tam Dalyell, the father of the House of Commons, welcomed confirmation of Mr Mandela's visit and reiterated his belief that Megrahi was a political prisoner who had been guilty only of sanctions busting.

He told BBC Radio Scotland: "I asked him [Megrahi] what he was doing in Malta. He told me in detail how he had been a sanctions buster - getting components for Libyan Arab Airlines because of the sanctions, going to Nigeria, Brazil, above all to Ethiopia, having contacts with Boeing, in order to get much needed parts for aircraft."

Mr Dalyell said he had evidence, never presented at the trial, that may prove Megrahi's innocence. He claimed Iran had made a payment of $11m (£7.5m) to a militant Palestinian group two days after the bombing. 

Lockerbie trial translation problems

[What follows is the text of a report published on the BBC News website on this date in 2000:]

Judges in the Lockerbie trial have ordered an urgent inquiry into translation facilities after complaints from the two Libyan accused.

Defence lawyers said that poor translation meant the two defendants did not fully understand the proceedings at the Scottish Court in the Netherlands.

After retiring to consider a motion, the presiding judge, Lord Sutherland, said the two suspects would be given verbatim Arabic transcripts of the proceedings since the trial began on 3 May.

The men's legal teams had told the court their clients said they were receiving an "interpretation" of proceedings and not an exact account.

Although not referred to in court, the argument hinged on Article 6 of the European Convention of Human Rights, which states that the accused has: "The right to be informed promptly, in a language the accused understands, in detail of the charges."

Defence counsel, Richard Keen, told the court: "An accused is entitled to understand the evidence that is being provided by the Crown in a case against him.

"Interpretation has to be practical and effective. The interpretation here seems to have been far from that."

Mr Keen said the men, who are accused of causing the deaths of 270 people when a Pan Am jet exploded over the Scottish town of Lockerbie in 1988, were entitled to a verbatim translation.

However, under the translators' contract they were instead receiving an "interpretation" of witnesses' statements.

Mr Al-Megrahi's counsel, William Taylor, cited a 1942 case in Scottish law in which an appeal court over-ruled convictions of three Polish soldiers on the grounds of inadequate translation.

If the issue cannot be resolved by the court in the Netherlands, it could be referred under the European Convention for Human Rights to the High Court in Edinburgh, and then to the judicial committee of Britain's Privy Council, Mr Bonnington said.

On Thursday, the court heard evidence from two members of the United States Central Intelligence Agency.

The men, their identities disguised, described how they had found electronic timers similar to that allegedly used in the Lockerbie bombing on two men detained in Senegal 10 months before the Lockerbie bombing.

According to the indictment, the defendants ordered 60 of the timers in 1985 and late 1988.

However, the defence has suggested that US authorities attempted to frame the defendants.

[RB: 1. The indictment did not allege that Megrahi and Fhimah ordered sixty timers, but that the Libyan Government did.

2. A person standing trial in a Scottish criminal court is not “the defendant” but “the accused” or “the panel”.]

The prisoner transfer débâcle

[What follows is excerpted from a report published in The Guardian on this date in 2007:]

Scotland's justice secretary today labelled as "ludicrous" Westminster's claim that a prisoner exchange agreement with Libya did not cover the Lockerbie bomber.

Kenny MacAskill poured scorn on Downing Street's insistence that a memorandum of understanding signed last week during a trip by Tony Blair to Libya did not apply to Abdelbaset Ali Mohmed al-Megrahi.

Alex Salmond, Scotland's first minister, has protested to Tony Blair over the agreement, which he suggested could lead to the Lockerbie bomber being transferred from Scotland to his homeland.

The SNP leader made an emergency statement in the Holyrood parliament complaining that "at no stage" had he been made aware of a British-Libyan agreement on extradition and prisoner release before it was signed.

The agreement has sparked the first major row between the government and the minority SNP administration in Holyrood.

Mr MacAskill told BBC Radio's Good Morning Scotland that Westminster's handling of the affair was "at minimum, discourteous to the first minister and the Scottish parliament".

Mr MacAskill continued: "There's no mention of al-Megrahi [in the memorandum] but we have many people in our prisons ... but we have only one Libyan national in our prisons.

"So when we're talking about the transfer of Libyan prisoners they are not secreted in Barlinnie, Saughton, Perth or anywhere else.

"We have only one Libyan national in custody and when we talk about the transfer of prisoners, frankly it is ludicrous to suggest that we are talking in a context other than this major atrocity that was perpetrated on Scottish soil and which was dealt with by a Scottish court and with a sentence provided by Scottish judges." (...)

No 10 denied Megrahi's case was covered by the document, saying: "There is a legal process currently under way in Scotland reviewing this case which is not expected to conclude until later this summer.

"Given that, it is totally wrong to suggest the we have reached any agreement with the Libyan government in this case.

"The memorandum of understanding agreed with the Libyan government last week does not cover this case."

But Mr MacAskill rejected any suggestion that the agreement would only apply to the transfer of al-Qaida suspects.

He said: "We haven't been given clarification [by Downing Street].

"All we've been told is that a memorandum of understanding has been signed.

"Mr al-Megrahi is not specifically excluded. It refers to the transfer of prisoners so this is London's interpretation of it.

"I doubt it very much if it's the interpretation being placed upon it by the government of Libya."

The row comes in the middle of an examination of Megrahi's case by the Scottish Criminal Cases Review Commission.

The body will decide later this month whether to refer his conviction back to an appeal court.

Mr MacAskill said: "It [the memorandum] is undermining the fabric of the Scottish judicial system that has been independent long before the Scottish parliament was established.

David Mundell, the Tory MP whose Dumfriesshire constituency covers Lockerbie, said he was "appalled" by Mr Blair's handling of the matter.

"Not only has he ridden roughshod over Scotland's parliament and legal system, but his actions threaten to undermine a legal process which took years to put in place and was agreed with the United Nations and international community," he said.

[RB: Here is something previously written by me on this matter:]

It was on [29 May] 2007 that the “deal in the desert” was concluded between Prime Minister Tony Blair and Colonel Gaddafi at a meeting in Sirte. This was embodied in a “memorandum of understanding” that provided, amongst other things, for a prisoner transfer agreement to be drawn up. In later years UK Government ministers, particularly Justice Secretary Jack Straw, sought to argue either (i) that the prisoner transfer element of the deal was not intended to apply to Abdelbaset Megrahi or (ii) that if it was intended to cover him, all parties appreciated that the decision on transfer would be one for the Scottish Government not the UK Government. Here is what I wrote about that on this blog:

According to Jack Straw "the Libyans understood that the discretion in respect of any PTA application rested with the Scottish Executive." This is not so. In meetings that I had with Libyan officials at the highest level shortly after the "deal in the desert" it was abundantly clear that the Libyans believed that the UK Government could order the transfer of Mr Megrahi and that they were prepared to do so. When I told them that the relevant powers rested with the Scottish -- not the UK -- Government, they simply did not believe me. When they eventually realised that I had been correct, their anger and disgust with the UK Government was palpable. As I have said elsewhere:

"The memorandum of understanding regarding prisoner transfer that Tony Blair entered into in the course of the "deal in the desert" in May 2007, and which paved the way for the formal prisoner transfer agreement, was intended by both sides to lead to the rapid return of Mr Megrahi to his homeland. This was the clear understanding of Libyan officials involved in the negotiations and to whom I have spoken.

"It was only after the memorandum of understanding was concluded that [it belatedly sunk in] that the decision on repatriation of this particular prisoner was a matter not for Westminster and Whitehall but for the devolved Scottish Government in Edinburgh, and that government had just come into the hands of the Scottish National Party and so could no longer be expected supinely to follow the UK Labour Government's wishes. That was when the understanding between the UK Government and the Libyan Government started to unravel, to the considerable annoyance and distress of the Libyans, who had been led to believe that repatriation under the PTA was only months away.

“Among the Libyan officials with whom I discussed this matter at the time were Abdulati al-Obeidi, Moussa Koussa and Abdel Rahman Shalgam.”

UK Government prevarication over prisoner transfer

[What follows is excerpted from a report published on the BBC News website on this date in 2007:]

The UK Government has published details of a deal struck with Libya on prisoner exchange, which it insists does not cover the Lockerbie bomber's case.

Scotland's First Minister Alex Salmond had voiced concern at Holyrood that Abdelbaset Ali Mohmed al-Megrahi could be transferred back to a jail in Libya.

A spokesman for Prime Minister Tony Blair said no deal had been signed over the future of al-Megrahi. (...)

The memorandum of understanding with Libya was signed last week by Mr Blair during a trip to the country. It was created on 29 May.

It states that the two sides will shortly "commence negotiations" on prisoner transfer, extradition and mutual assistance in criminal law, with a final deal signed within 12 months.

It will be based on a "model agreement" that, according to the document, has already been hammered out.

Mr Salmond had demanded clarification from the UK Government about al-Megrahi's case and made an emergency statement at Holyrood on Thursday.

He said that "at no stage" was the Scottish government made aware of the memorandum, despite the deal being struck on 29 May.

Addressing MSPs, he said: "I have today written to the prime minister expressing my concern that it was felt appropriate for the UK government to sign such a memorandum on matters clearly devolved to Scotland, without any opportunity for this government and indeed this parliament to contribute."

The first minister reminded politicians that al-Megrahi's case was being reviewed by the Scottish Criminal Cases Review Commission, which could send his case back to appeal judges in Edinburgh. (...)

Scotland's top law officer, the Lord Advocate Eilish Angiolini, supported the decision to write to Mr Blair, Mr Salmond said.

He added that while the Scottish Executive supported the UK Government's desire for better relations with Libya, the lack of consultation with Holyrood over the memorandum was "clearly unacceptable".

"This government is determined that decisions on any individual case will continue to be made following the due process of Scots law," the first minister said.

A Downing Street statement said: "There is a legal process currently under way in Scotland reviewing this case which is not expected to conclude until later this summer.

"Given that, it is totally wrong to suggest the we have reached any agreement with the Libyan Government in this case.

"The memorandum of understanding agreed with the Libyan Government last week does not cover this case."

A spokesman for the prime minister said a deal covering Libyan prisoner exchange was reached between Mr Blair and the Libyan leader Colonel Gaddafi.

When asked if after the legal review al-Megrahi could be returned to serve his sentence in Libya, the spokesman would not be drawn.

Opposition politicians in Scotland condemned the lack of consultation with the Scottish government.

Labour leader Jack McConnell said: "As former first minister I would have expected and demanded no less than prior consultation on such a memorandum.

"Scottish ministers, as far as I understand the letter of the law, have an absolute veto over prison transfers. I want to know if this memorandum contradicts that in any way." (...)

Mr Salmond told him he became aware of the memorandum on Friday, discussed it at the Scottish Cabinet meeting on Tuesday and then consulted the lord advocate on Wednesday.

Scottish Tory leader Annabel Goldie said: "Tony Blair has quite simply ridden roughshod over devolution and treated with contempt Scotland's distinct and independent legal system."

Liberal Democrat leader Sir Menzies Campbell said: "The government's ineptitude in handling this matter has given Mr Salmond precisely what he wanted.

"Westminster and the Labour government have given the impression of disdain for the Scottish authorities.

"The issue is not large in itself but it has played right in Mr Salmond's hands."

Former Labour MP Tam Dalyell, who has believed throughout in al-Megrahi's innocence, said: "The prime minister may think he can draw a line under all this.

"Surprisingly I am sympathetic to Mr Salmond. The only way that Megrahi can prove his innocence is through the Scottish legal system."

Dr Jim Swire, whose daughter Flora was killed in the bombing and who speaks for other British victims, said Scotland had been insulted by the British-Libyan agreement.

Referring to the document, he said: "Incredibly it seems that we are being asked to believe that this concerns other Libyan nationals, but not Megrahi.

"No mention of any discussion was given to us, the Lockerbie relatives.

"Mr Salmond should indeed remain indignant: Scotland has been insulted."

US lobbied to have Megrahi imprisoned in Libya

What follows is an item originally posted on this blog on this date in 2011.

WikiLeaks Megrahi cables in The Scotsman

[The Scotsman newspaper today runs a series of stories based on WikiLeaks cables covering US anticipation of and reaction to the compassionate release of Abdelbaset Megrahi in August 2009. The principal report, headlined Wikileaks: Inside story of Megrahi's return home, contains the following:]

Colonel Muammar al-Gaddafi's motive for giving a hero's welcome to freed Lockerbie bomber Abdelbaset Ali Mohmed al-Megrahi is revealed today in secret US diplomatic cables obtained by WikiLeaks and seen by The Scotsman.

The cables reveal that the regime's handling of the homecoming was heavily influenced by Col Gaddafi's simmering resentment towards the West over the case of six Bulgarian nurses freed from a Libyan jail in 2007.

The nurses had been jailed for life for allegedly infecting 400 Libyan children with the HIV virus. European Union diplomats negotiated their release - but then reneged on a deal that the nurses should serve the rest of their sentences in jail in Bulgaria.

Col Gaddafi's lingering anger at this diplomatic "insult" is revealed in a cable, written by a diplomat, describing a meeting in Tripoli between the colonel and US senator John McCain, shortly before Megrahi's release. The Libyan leader refused to give any guarantees about the tenor of Megrahi's homecoming, the cable reports, despite Mr McCain's warning that a hero's welcome could severely damage Libya's new friendship with the United States.

Col Gaddafi cited the celebrations that met the nurses in Bulgaria after their release. (...)

The US government has criticised The Scotsman for its tie-up with WikiLeaks, saying: "Any unauthorised disclosure of classified material is regrettable as it has the potential to harm individuals as well as efforts to advance foreign policy goals."

But the cables provide valuable new insights into one of the most iconic moments in recent Scottish history. They reveal:

* The United States tried to add conditions to the Scottish terms of Megrahi's release, demanding he be imprisoned for the rest of his life in Libya following his compassionate release.

* Megrahi's homecoming and how to handle it became a tussle within the Libyan regime, between reformers who favoured friendlier ties with the West and hardliners who saw such moves as a weakening of Libya's strongman status.

* Western diplomats who urged a low-key return for Megrahi believed they had an ally in Moussa Koussa, the Libyan foreign minister who subsequently defected to the West shortly after Nato sided by the rebels in the Libyan uprising this spring.

* The triumphant return of Megrahi to Libya was in fact a much lower-key welcome than some hardliners planned, with a crowd of many thousands scaled down to a few hundred at the last minute.

[Further related reports in the same newspaper can be accessed here, as can the cables themselves, including one headed Demarche delivered, in which US diplomats in Tripoli are to be found urging Moussa Koussa to secure that Megrahi is imprisoned in Libya, notwithstanding the fact that his return was under compassionate release, not prisoner transfer. Moussa is reported to have "raised his eyebrows" at this point.]