Urgent questions posed to SCCRC by John Ashton

[What follows is the text of an email sent this morning to the Scottish Criminal Cases Review Commission by John Ashton. It is reproduced here with Mr Ashton’s approval:]

I am the biographer of Mr Megrahi and from 2006 until his return to Libya in 2009 worked as a researcher with his legal team.

I have a number of urgent questions, which are listed below, about the statement issued by SCCRC yesterday, in particular, the following passages:

The Commission received the current application from Messrs Aamer Anwar & Co., solicitors, in June 2014. At the time it was clear that the application was made on behalf of the “Justice for Megrahi” group, in the form of Dr Jim Swire, the Rev'd John Mosey and a number of other family members of the victims of the bombing. The application also appeared to be supported by the members of the family of the late Mr Megrahi…

...The Commission also had to consider the circumstances surrounding the abandonment of Mr Megrahi’s previous appeal. To enable it to do so it was imperative that the Commission be provided with the defence appeal papers. After a period of 14 months, and despite various requests having been made of the Megrahi family and of the late Mr Megrahi’s previous solicitors, Messrs Taylor and Kelly, these have not been forthcoming...

[Quote by SCCRC Jean Couper:]

...“It is extremely frustrating that the relevant papers, which the Commission believes are currently with the late Mr Megrahi’s solicitors, Messrs Taylor and Kelly, and with the Megrahi family, have not been forthcoming despite repeated requests from the Commission. Therefore, and with some regret, we have decided to end the current review…”

...The Commission has written to the late Mr Megrahi’s solicitors and to his family requesting access to the defence papers in order to allow it to consider the circumstances surrounding the abandonment of Mr Megrahi’s second appeal. No papers were forthcoming despite repeated requests.

Points to note

1. The application, which the SCCRC yesterday rejected, was not made of behalf of the Justice for Megrahi group but on behalf of a number of the UK Lockerbie victims’ relatives and members of Mr Megrahi’s family.

2. The application stated, in schedule 3:

The circumstances in which Abdelbaset al-Megrahi came to abandon his second appeal are set out in Chapter 14 (pages 346 to 365) and Appendix 4 (pages 420 to 425) of John Ashton’s Megrahi: You are my Jury — The Lockerbie Evidence (Birlinn, Edinburgh, 2012, ISBN-13 978 1 78027 015 9) and (much more briefly) on page 119 of John Ashton’s Scotland’s Shame: Why Lockerbie Still Matters (Birlinn, Edinburgh, 2013, ISBN-13 978 1 78027 167 5) to which the Commission is respectfully referred.

Having been diagnosed as suffering from terminal prostate cancer, Abdelbaset al-Megrahi was desperate to achieve his repatriation to Libya so that he could die surrounded by his family. In these circumstances he applied for compassionate release on 24 July 2009. The Libyan Government had already submitted an application for prisoner transfer on 5 May 2009. Abandonment of Megrahi’s appeal was not a requirement for compassionate release, but it was a requirement for prisoner transfer; and the Cabinet Secretary for Justice intimated that, although prisoner transfer had been applied for more than two months before application was made for compassionate release, both applications would be dealt with by him simultaneously (see eg http://lockerbiecase.blogspot.com/2009/07/megrahi-deadline-will-be-missed.html). Accordingly, if both routes to repatriation were to remain open to him, Megrahi had to abandon his appeal.

In a press release issued through his solicitor, Tony Kelly, a short time after his return to Libya, Megrahi stated: “I have returned to Tripoli with my unjust conviction still in place. As a result of the abandonment of my appeal I have been deprived of the opportunity to clear my name through the formal appeal process. I have vowed to continue my attempts to clear my name. I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence.” (see http://lockerbiecase.blogspot.com/2009/09/press-release-regarding-publication-of.html). Until the end of his life, Abdelbaset al-Megrahi continued to protest his innocence of the crime of which he had been convicted: see eghttp://lockerbiecase.blogspot.com/2011/12/these-are-my-last-words-i-am-innocent.html.

3. The application was accompanied by an affidavit by me, which provided a detailed account of why, according to Mr Megrahi, he abandoned his previous appeal. It named three Libyan witnesses who could verify this account.

4. Mr Megrahi gave me access to all his legal appeal papers, which I still have.

5. In response to the SCCRC’s statement, Taylor & Kelly solicitors yesterday issued the following statement:

It is with some surprise that we learn today that the Commission have come to the view that papers have not been forthcoming from us as Mr Megrahi’s appeal representatives. As soon as a request was made from the commission we asked to be advised of the basis of the request – the power of the commission to ask for access to material. Despite making clear that we were anxious to assist, we have not as yet been told of the Commission’s authority to have access to amongst other things private communications. As solicitors we cannot deliver up papers in our possession simply upon request, even to a body such as the Commission.

No indication was given to us until today that the Commission were interested in the part of our actings relating to Mr Megrahi’s appeal being abandoned. The Commission have very wide powers indeed. They could have made application to the Court for access to materials. In any such application, they would clearly have been required to state the basis of the request, and the basis for any court to order us as solicitors to have to part with confidential papers. We prefaced that in communications with them and asked them to provide authority for any application. We remain in the dark on this important point.

As solicitors we are bound by professional obligations which are the subject of regulation by the Law Society of Scotland. In the event that we have in some way not met our professional obligations the Law Society could have been consulted.

As it was, at the conclusion of our actings in this case we sought and obtained our own legal advice about the custody of the papers.

No further enquiry was made of our solicitors individually or any others who formed part of the legal team. The Commission in its previous consideration of Mr Megrahi’s case interviewed each member of Mr Megrahi’s team about decisions made in the course of the trial. If focus had centred on the abandonment of the appeal then that could have been pursued by seeking to interview those involved in that aspect of the case.

Questions

1. Why did the commission state that the application had been brought on behalf of the Justice for Megrahi group, when it was in fact brought on behalf on some of the Lockerbie victims’ relatives and members of Mr Megrahi’s family?

2. Why did the commission not approach me to request access to the paperwork that I hold?

3. Why did the commission not interview me about the reasons that Mr Megrahi gave for abandoning his appeal?

4. Why did the commission not attempt to speak to the Libyan witnesses named in my affidavit?

5. Why did the commission not advise Taylor & Kelly solicitors of the legal basis of its request for documentation?

6. Why did the commission not seek to interview solicitor Tony Kelly about Mr Megrahi’s abandonment of his appeal?

I look forward to your early response.