Saturday 30 May 2015

Keeping timer documents secret

[What follows is excerpted from a report published on this date in 2008 in the Daily Record:]

Secret documents at the centre of a costly courtroom row are unlikely to help Libyan agent Abdelbaset al-Megrahi overturn his conviction for the Lockerbie bombings, it was claimed on Wednesday.

Al-Megrahi, 56, is serving a minimum of 27 years of a life sentence for bringing down a United States-bound Pan Am flight in December 1988 with the loss of 270 lives – regarded as Scotland’s worst mass murder.

His claims of innocence have been referred to appeal judges by the Scottish Criminal Cases Review Commission which investigates possible miscarriages of justice.

The SCCRC say that before the trial started al-Megrahi’s defence team should have been shown papers which an unknown foreign government handed over to UK authorities – believed to be about the bomb’s electronic timer.

But defence lawyers cannot get their hands on the documents because the Westminster Government say that revealing their contents will harm foreign relations and hamper the war on terror.

The Court of Criminal Appeal in Edinburgh is now locked in a three day debate about how to conduct a hearing into whether or not the documents can be kept secret under a “public interest immunity certificate”.

As well as the three appeal judges there are nine advocates in the Edinburgh courtroom – five of them QCs.

Advocate General Lord Davidson of Clova QC – who represents Westminster of legal issues in Scotland – has suggested a procedure never before seen in Scotland.

Judges would be allowed to read the secret papers then decide – behind closed doors – whether they should be handed over.

But al-Megrahi’s lawyers would be kept out and replaced by a security-vetted advocate to try to ensure fair play.

Today it was the turn of advocate depute Ronald Clancy QC to give the view of prosecutors.

He told the judges in Edinburgh that Lord Advocate Elish Angiolini QC, responsible for criminal prosecutions in Scotland, would hand over the documents if Foreign Secretary David Miliband had not objected.

“They are not likely to be important to any undermining of the Crown case or cast doubt on it”, he said.

Mr Clancy also suggested that a possible way round the difficulty might be for defence lawyers to see an edited version of the controversial documents.

Margaret Scott QC, senior counsel for al-Megrahi, insisted that without sight of the document she could not properly prepare for the Libyan’s appeal – which is still months away, at least.

“Al-Megrahi’s position here is that he wants disclosure of these documents in order to exercise his right of appeal,” she said.

The papers were “material” because the SCCRC had said so, she added.

Ms Scott also criticised the proposals for a special security-vetted lawyer to encroach on her job.

“My main concern is any proposed procedure which determines the substance of the appeal taking part in the absence of al-Megrahi or his defence counsel”, she said.

[RB: Will we have to go through all this again if the current application to the SCCRC results in a reference of the case back to the Appeal Court, but with Richard Keen QC (whose appointment as Advocate General for Scotland was announced yesterday) seeking to keep the documents out of the hands of the lawyers arguing the appeal on behalf of the late Abdelbaset Megrahi?]

2 comments:

  1. I still wonder about the role of the inordinately political Mr. Keen at Camp Zeist. I understand he was an unlikely choice as Fhimah's lead advocate, being more of a civil litigation specialist. Nevertheless he was said to have a brain the size of a planet.

    Sitting beside him was an equally controversial choice of advocate for Megrahi, Bill Taylor who although a criminal defence lawyer, wasn't of the calibre or reputation expected for the job. He, reputedly, does not have a brain the size of a planet. Hmmm.

    Mr. Keen was reportedly brilliant in grasping the mathematical detail of the Mach Stem calculations, and so was able to force Christopher Peel to recognise that he had made a mistake in his big research project about the stand-off distance of the bomb. This revelation had precisely zero effect on the outcome of the trial, as anyone with eyes in their head could see empirically that the explosion had been more or less where the forensics guys said it was, without reference to complicated mathematics.

    At the same time this brilliant mind entirely failed to notice what the Heathrow evidence should have been screaming out to him. That Sidhu said he didn't move the case Bedford saw from its position on the floor of the container, and all the forensics waffle about the bomb suitcase not being on the floor of the container was so much candyfloss. Really? Well I suppose he had a lot of company.

    He also pulled a very smart legal trick in separating Fhimah from Megrahi. It was clever, and it got Fhimah off, but it arguably landed Megrahi right in it. Well, the authorities only needed one person convicted to validate their delusional theory of how the atrocity had been carried out.

    It's a bit like what Bill Taylor did. He argued absolutely futile points, while walking right past the crucial points that would have proved his client innocent. The botch-up he made of the Frankfurt baggage evidence is pitiful, conceding things he should never have conceded, while making a big performance of arguing Jurgen Fuhl's abortive Damascus flight theory, which even Fuhl had explicitly given up on as a bad job. Waste of time. Just like the Mach Stem challenge. He also conceded the ludicrous point that Sidhu had moved the Bedford suitcase, knowing Sidhu had denied doing that. But then they say he doesn't have a brain the size of a planet.

    Sometimes I wonder how on eath two large and well-funded teams of expert lawyers, with a year and more to get to grips with the detail, possibly managed to miss what the Heathrow evidence seems to be screaming out to anyone who'll listen. But then I sort of think, if you have a very very bright guy at the head of all this, and he's actually batting for the other team, it might be possible to head off any inconveniently curious juniors digging in the wrong place.

    Just a thought. I'm probably being quite ridiculous.

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  2. "But defence lawyers cannot get their hands on the documents because the Westminster Government say that revealing their contents will harm foreign relations and hamper the war on terror."

    Assuming the Daily Record journalist got it right:
    Amazingly, the government is willing to make such a statement, which just shows how little their interest is in justice.

    Do the documents contain nasty lies that should not be shown to the blue-eyed defense lawyers who would get a ruined impression of the world?
    Or does it contain embarrassing information that we should better not reveal about our close allies?
    How would it 'hamper the war on terror'?

    "The Court of Criminal Appeal in Edinburgh is now locked in a three day debate about how to conduct a hearing into whether or not the documents can be kept secret under a “public interest immunity certificate”."

    I suppose we can safely assume, that the debaters also can not be trusted with the documents?
    In other word, are they supposed to make an ad-hoc decision about documents which contents they do not know?
    A “public interest immunity certificate” is pulled up of the hat to make it sound legitimate. How nice of them to protect your interests, and aren't you just certain that this is what they do.

    It also appears strange to me to read:
    “Al-Megrahi’s position here is that he wants disclosure of these documents in order to exercise his right of appeal,” she [Margaret Scott QC] said.

    To me it sounds like taking a distance to the client. How about:
    "It is totally unacceptable if the defense can not be given insight these documents, which clearly, according to SCCRC, are material to our case. The only other option must be that the prosecution drops the case."

    Also
    “My main concern is any proposed procedure which determines the substance of the appeal taking part in the absence of al-Megrahi or his defence counsel”, she said."

    Yes, that is indeed a 'concern'. A defendant selects his defense, exclusively.
    Does being a Scottish defense lawyer for Megrahi turn you into being a national security threat?

    The whole affair and wording screams about huge failures in the needed mindset for achieving justice.

    In a country around here, called a dictatorship, which name I don't dare mention, we have the similar issues in cases regarding a certain type of cases, which I also dare not mention.
    'National security', closed doors, long arrests without bail, and non-disclosure of critical information to the broad public.
    And convictions that do not convince.

    But the thought that the defense lawyers should not be trusted with critical material for the case, no, to my knowledge this has not been suggested yet.

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