In July Professor Hans Köchler, appointed by the UN Secretary-General as an observer at the Lockerbie trial, wrote a letter to the UK Foreign Secretary about (a) an error on the Foreign Office's website about the Lockerbie trial and (b) about the Foreign Secretary's assertion of public interest immunity in respect of certain documents, the failure to supply which to the defence formed one of the grounds on which the Scottish Criminal Cases Review Commission held that Megrahi's conviction might have amounted to a miscarriage of justice. The Foreign Secretary has now replied to Professor Köchler, whose press release reads as follows:
'Vienna, 1 September 2008/P/RE/20260c-is
'In a letter dated 27 August 2008, the Foreign & Commonwealth Office of the United Kingdom has informed Dr. Hans Koechler, an international observer of the Lockerbie trial appointed by the United Nations, that an erroneous entry about the Lockerbie verdict on the Office's country profile page on Libya has now been corrected. The Foreign Office's web site had wrongly reported that the verdict on the second Libyan suspect in the Lockerbie case, Al Amin Khalifa Fhimah, was "not proven." The information has now been corrected to "not guilty." This is important because one of the main reasons for Dr. Koechler's criticism of the Lockerbie verdict had been its being inconsistent. (While the rationale of the indictment was based on the two Libyan nationals' having conspired together to get a piece of baggage containing a bomb loaded on a plane in Malta, the verdict had declared the first suspect, Mr. Abdelbasset Ali Mohmed Al Megrahi, "guilty" and the second suspect "not guilty" - both of which determinations require proof "beyond a reasonable doubt.")
'On 21 July 2008 Dr. Hans Koechler had alerted David Miliband about the misleading entry and had also expressed his concerns about the public interest immunity (PII) certificate issued earlier by the Foreign Secretary in connection with certain "sensitive" material that has been withheld from the Defence in the Lockerbie case.
'In the above mentioned letter, the Foreign & Commonwealth Office has reiterated the Foreign Secretary's position that release of the material in question "would do real and lasting damage to the UK's relations with other states and the UK's national security." At the same time, the Foreign Office has acknowledged vis-à-vis Dr. Koechler that: "Ultimately, it will be for the Court to decide whether the material should be disclosed, not the Foreign Secretary." In the letter, the Foreign Office furthermore asserted the Scottish Court's being bound by the European Human Rights Convention: "Under the Human Rights Act 1998 the Court has a duty to act in compliance with Convention rights in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial."
'In a statement issued today, Dr. Koechler said that it is now up to the Scottish judges to assert the independence of the Scottish judiciary and ensure that the conditions for a fair trial (second appeal) are scrupulously met (which implies disclosure to the Defence of all evidence that is in the possession of the Prosecution). There is absolutely no doubt that in a country where the rule of law prevails a fair trial is ex definitione in the public interest. Dr. Koechler expressed the hope that the final decision on the disclosure of the "sensitive" material will not be delayed further. The new appeal cannot go ahead without this step.
'Dr. Hans Koechler will visit Scotland next week for discussions on the Lockerbie case.'
[Note by RB: Professor Köchler is mistaken when he says that the trial court's finding of "not guilty" in respect of the co-accused, Lamin Fhimah, required proof beyond a reasonable doubt. For acquittal, whether by a verdict of not guilty or one of not proven, all that is required is that the court is not satisfied that the Crown has proved the accused's guilt beyond reasonable doubt. The court is certainly not required to be satisfied (beyond reasonable doubt or by any other measure) that he is innocent.]
I would like to know who was responsible for appointing judges in Scotland at the time of the Lockerbie trial.
ReplyDeleteUntil 2002 (ie after the Lockerbie trial) judges in Scotland were appointed by the Queen on the nomination of the Lord Advocate (the head of the Scottish prosecution system). Thereafter an independent Scottish Judicial Appointments Board came into existence and the Lord Advocate's nomination powers came to an end.
ReplyDeleteThe Order in Council that set up the Scottish Court in the Netherlands provided that the judges selected to sit in it should be chosen by the Lord Justice Clerk (the number two in the Scottish judicial hierarchy). This was because the top judge at the time (the Lord Justice General) had himself held the office of Lord Advocate during part of the period after charges had been brought against Megrahi and Fhimah and the case against them was being prepared.
I have read most of Professor Kochlers postings both through the IPO and other sites, and found some of them highly interesting but some, as with his latest, with small (but important) errors.
ReplyDeleteI observed him during his duties at the Scottish Court in the Netherlands and read with interest the report he sent to the then Secretary General's Office.
I am a little puzzled as to why he is continuing his involvement in the case.
I would like confirmation that his 'locus in law' as an observer acting for or on behalf of the UN ceased with the deliverance of his report to the Secrtary-General's Office?
I would appreciate confirmation of for whom he is currently acting in respect of the case?